Your Humble Blogger is reasonably satisfied with the Supreme Court rulings on public displays of the Ten Commandments. I think that transgression in this case really is a matter of knowing it when one sees it, and the total lack of recognizable precedent in this matter means that cases have to be treated individually. This should have something of a chilling effect on religious stuff getting posted in courtrooms and such, while not having so much of a chilling effect on student art in schools or whatnot. It will be frustrating, and of course, it will be somewhat easier for the next configuration of the court to gut the rulings than it might have been had some hypothetical bright line been articulated. Still, it could have been a lot worse, on the results.
On the other hand, take a look at the syllabi: In the Kentucky case, the majority is a majority of four, with a separate concurring opinion. The minority is a minority of three and two-thirds, as Justice Kennedy could only bring himself to join parts two and three. In the Texas case, there was also a majority of four, with a separate concurring opinion in addition to two other opinions concurring in part (I think—I haven’t read ’em). There are three dissents, for minorities of between one and three depending on which one you get. That’s right: nine justices, seven opinions. Thanks a lot for your efforts, Justice Rehnquist. We’ll miss you. In a pig’s eye.
Just in case you think that this First Amendment case was particularly hard to get the justices in line on (and, in my arrogant opinion, it is particularly important to make the precedents clear in hard cases), there was a three-justice majority in the cable v. internet case, with two concurring opinions. The Grokster case was unanimous, with two concurring opinions filed, each of which garnered a majority of three. In the restraining-order case, there was a five-justice majority (absent Justice Bader Ginsberg), but again, a concurring opinion of two, leaving a majority of three. The Exxon case had a clear majority of five (whew) but two dissents. Kelo had a majority of four, as there was one concurring opinion filed, and then there were two dissenting opinions.
None of this is impermissible. Decisions are valid if the majority holds them to be, whether the justices agree on anything beyond the disposal of the case at hand. The problem is that judges across the country follow cases to apply precedents to other cases. As Chief Justice, part of J. Rehnquist’s job is to keep the case load down by allowing judges throughout the system to make decisions that are clearly in line with the decisions made by the highest court. Because he hasn’t done that job, judges look at decisions and say ‘hm, well, they got five for that case, but this case is ever so slightly different, and I don’t know if those concurring justices will still stick with the coalition.’ Frankly, I’d rather have Scalia in the big chair.
Of course, when wrapping up Big Bill’s legacy, as I hope will be done this week and don’t let your robe get caught in the door on your way out, I don’t know how much people will dwell on Operation Eagle Eye. At least whoever President Bush nominates is unlikely to have been personally involved in racist vote suppression conspiracies.
chazak, chazak, v’nitchazek,