Strengthening Constitutional Self-Government

No Left Turns

Ten Commandments cases

For a useful analysis of the upcoming Supreme Court cases and their constitutional backdrop, go here. The Pew Forum’s analysts argue that, unsurprisingly, Justices Sandra Day O’Connor and Stephen Breyer hold the balance of power, with the result that many arguments are pitched to appeal to O’Connor’s highly contextual "endorsement" test. Here’s the concluding paragraph:

In Van Orden and McCreary County, the constitutionality
of government displays of the Ten
Commandments will very likely be determined
by the contextualists’ judgment and deciding votes.
Justice O’Connor defends her contextualism as the
most appropriate balance between respect for the
religious sentiments of the majority and protection
for the liberties of religious minorities and nonbelievers.
Perhaps she is correct; but this approach
has its own costs, as the last 15 years of litigation in
the lower courts over holiday displays have shown.
If determining the constitutionality of such displays,
whether of holiday religious symbols or texts like
the Ten Commandments, depends on considering
the “unique circumstances” of each display, controversies
of this type will remain a recurrent feature
of our law and public life.

Discussions - 1 Comment

Sandra Day O’Connor needs to retire. Her logic in Grutter v. Michigan was appalling, and this decision on the Ten Commandments and "context" will be worse.

Personally, I don’t think lifetime appointments make sense. Perhaps a 10-year term. This would lower the temperature on appointment struggles and limit the damage of crackpots who manage to get onto the Court.

And yes, I realize that this would also limit the terms of excellent justices like Scalia or Renquist. There is always a price to pay for checks and balances.

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