Supremely annoying

      5 Comments on Supremely annoying

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,

5 thoughts on “Supremely annoying

  1. Michael

    More decisions stupidly hinging on intent. The Ten Commandments cases are differentiated because of the intent of the responsible parties, just as the Grokster case revolved around the intent to aid infringement.

    V, you say that transgression in public displays of the Ten Commandments “really is a matter of knowing it when one sees it”. To me, these cases are exactly about the response of the viewer, which has everything to do with the facts of the display and nothing to do with the intent of the group who created the display.

    As a matter of public policy, the civil law should focus on actions, not intentions. I don’t know what happened to this fundamental principle. But I do know that the car parked in front of the fire hydrant is blocking the fire hydrant, and the pollutants dumped into the water table hurt the community, and the granite monument of the Ten Commandments on government property will convey the message that the government likes the Ten Commandments. Whether or not the intent of the author or responsible actor is knowable (a question for humanities scholars), the reality is that most people aren’t going to explore and carefully consider the hidden history behind the current reality before having a reaction. The firefighter will smash the car windows, residents will start filtering their water, and people who don’t want the government licensing their faith will feel more uneasy with good cause, because the people who do want the government licensing the faith of others will see encouragement.

  2. Wayman

    NPR reported yesterday that there were not seven, but ten opinions issued on the Kentucky and Texas cases, and that Rehnquist quipped to journalists “ten opinions … I didn’t know we had that many justices on this court”.

  3. Vardibidian

    Although my own preference would have been to oust the Texas display along with all the Eagles displays just like it, I honestly think that one display among many, placed round the back of the courthouse where complainants, defendants and court officers would not normally pass by it on the way in or out does not have much of a chilling effect. The displays in Kentucky were totally different, and the window dressing they added was clearly a sham. I grant that intentions can be tricky, but when intentions are stated as blatantly as that, I think they can be taken into account. Anyway, when I say I’m reasonably satisfied, I don’t mean that I agree with the decision, just that it’s as good a decision as I could have expected this court to make.
    And Wayman, the ten opinions were in the two cases, seven in one and three in the other. To say that there were ten opinions on the issue of the Ten Commandments in public spaces is misleading. On the other hand, to say that the opinion of the Supreme Court is that these should be taken on a case-by-case basis is also misleading. I read it that there are at least three, possibly four justices who would nearly always allow such displays, and at least three, possibly four justices who would nearly always prohibit such displays, and perhaps three justices who would allow some displays and prohibit others, depending on context (not that those justices agree one what contexts are permissible).
    As for the Chief Justice’s quip … well, sometimes I wonder if anybody ever told him what his actual job as the Chief was supposed to be. Of course, now that the confirmation process has (apparently) excluded politicians from consideration, maybe it’s too much to expect a good Chief Justice ever again, except by happy accident.

  4. Michael

    In other words, Kentucky could have been decided based on the facts of the display, rather than based on the intent of the defendant. So why choose the problematic approach?

    The lesson from Kentucky and from Grokster is that it’s important to hide your intentions. Don’t explain yourself and don’t be open about your motivations and actions, or even better adopt some legally-accepted veneer. That’s a terrible approach to encourage among either corporations or governments, and this pair of decisions went to both.

  5. Vardibidian

    That’s a good point. I was caught with the idea that the results were reasonable (if not ideal), and really didn’t look at the reasoning. Of course, the lack of a real majority for that reasoning means that it won’t be a real and binding precedent, but that doesn’t make me feel better at all.
    I do think that the lesson is not so much to hide your intentions, but if you are planning to infringe the law to refrain from publicly stating so. That seems fairly reasonable to me. The problem is which side of the converse they take. If they say, as I think they did in the Grokster case, that it is permissible to take into account public statements (or even private ones) about intent in finding that the law was deliberately transgressed, that’s fine. If they say, as some have interpreted the Grokster case (and the Arthur Andersen case), that in the absence of such statements the company cannot be held to have transgressed, then that’s just stupid. I mean, that’s just stupid. That doesn’t pass the reasonable jurist test, right?


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