6/29/2008--Linda Greenhouse wrote a wrap piece on the Supreme Court’s latest term in the New York Times today. Her conclusion is that Justice Anthony Kennedy is now the absolute swing vote between the two 4-Justice blocs on the Court: the liberal bloc, composed of Justices Stevens, Souter, Ginsburg and Breyer versus the conservative bloc of Chief Justice Roberts and Justices Scalia, Thomas and Alito.
Greenhouse’s conclusion is both accurate and obvious. You could see it in the Guantanamo and gun rights cases, in which Justice Kennedy cast the deciding votes between the blocs.
But the dog that didn’t bark this term, hasn’t barked in several years in fact, is religion. Since the 2005 Ten Commandments cases, in which the Court split 5-4 in two cases—one allowing, one prohibiting public displays of the Ten Commandments—the Supreme Court has not returned to the fundamental question of church and state under the Establishment Clause.
This is surprising because in those 2005 cases, Justice Scalia wrote a dissent on behalf of Chief Justice Rehnquist and Justice Thomas fundamentally challenging not only the wall of separation between church and state, but also endorsing monotheism as a kind of official state religion. With the changes in personnel on the Court since then—Roberts and Alito for Rehnquist and O’Connor—one would expect the Court to return and settle the matter in a potentially revolutionary religion decision.
Not only has the Court not done this, but the Court has not granted review for next year in a case raising fundamental questions about the Establishment Clause. What’s going on?
Of course no one knows what goes on behind the scenes on the Supreme Court, but the answer seems to me to lie in the nature of the division on religion on the Court. I assume that Chief Justice Roberts and Justice Alito agree with Justices Scalia and Thomas about the need for a new approach. But they may not be ready to actually overturn the wall of separation between church and state. Nor may they agree with Justice Scalia’s willingness to endorse monotheism.
Meanwhile, Justice Kennedy is only a swing vote in a sense in religion cases. The Justice who cast the fifth vote to uphold one display and prohibit the other in 2005 was Justice Stephen Breyer. Justice Kennedy voted to uphold both displays.
But Justice Kennedy did not join that part of Justice Scalia’s dissent that set forth Justice Scalia’s new theory of church and state and, of course, neither did Justice Breyer.
My guess is this: none of the four—Roberts, Alito, Kennedy or Breyer—is ready to say what if any new approach to church and state should come next. Therefore, the lower courts continue to muddle along without any dramatic decisions—no more cases taking “under God” out of the Pledge of Allegiance—while the Court considers what to do next. In this interim, the lower courts are continuing to apply government neutrality language and are continuing to look for an illegal government motive to promote religion, despite the likelihood that these approaches no longer enjoy majority support on the Supreme Court.
Well, what should come next? Tune in for my suggestion: establishment of religion.