SCOTUS Watch: ‘Peace Cross’ case decided today

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The U.S. Supreme Court started the day with 20 argued cases yet to be decided. The court issued four opinions today. The Court also announced an additional opinion day on Friday. Still 16 cases to be decided in 10 days.

The first opinion is a plurality opinion in Gundy v. US, by Justice Kagan for the eight-member court (Justice Kavanaugh was not on the court when the case was heard). Justice Alito has a concurring opinion. Justice Gorsuch dissents, joined by Justices Roberts and Thomas. This isa non-delegation doctrine case, which prohibits Congress from transferring its legislative power to another branch of government. The lower-court’s judgment that, in the Sex Offender Registration and Notification Act, Congress properly delegated authority to the U.S. attorney general to apply the law’s registration requirements. The Second Circuit’s ruling is affirmed.

Justice Alito deprived the Court of a majority opinion for these reasons:

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.

Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

So Alito wants to overturn long-standing Supreme Court precedent, like his bench mate Clarence Thomas. You can read the tea leaves on where they want to go (Roe v. Wade).

The second opinion is a 6-3 decision in McDonough v. Smith, by Justice Sotomayor, joined by Justices Roberts, Ginsburg, Breyer, Alito and Kavanaugh. Justice Thomas dissents, joined by Justices Kagan and Gorsuch. The Second Circuit is reversed and remanded.The question in this case was when the statute of limitations began to run in a case alleging that evidence had been fabricated against a commissioner of a county board of elections. The Second Circuit ruled that the limitations period began to run when the evidence was used against him, so that a civil rights case for fabricating the evidence was too late. The Court holds instead that the limitations period did not begin to run until McDonough, the commissioner, was acquitted. Justice Thomas’s dissent says that the court should have dismissed the petitioner’s appeal as improvidently granted because McDonough did not specify which constitutional right was violated.

the third opinion is a 7-2 decision in the “peace cross” case, American Legion v. American Humanist Association, by Justice Alito for the majority. Some of the justices agreeing in the decision nevertheless disagreed with portions of Justice Alito’s opinion. Justices Ginsburg and Sotomayor are the only full dissenters in the case. The Fourth Circuit is reversed and remanded.

This is the case of a peace cross erected in what is now a traffic circle to commemorate fallen soldiers in World War I. The Fourth Circuit agreed with a group of local residents and the American Humanist Association that the memorial is unconstitutional, but today the Court reversed, so the cross can stay. Justice Alito looks to history, appearing to draw an analytical line between maintenance of long-established monuments with potential religious significance and the erection of new ones. The outcome turns heavily on the fact that the cross has been around for a long time and seems to establish a general presumption of constitutionality for old monuments of this sort: “The passage of time gives rise to a strong presumption of constitutionality.”

The court says that the cross “has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions. And contrary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clause of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross (above) on the land where it has stood for so many years is fully consistent with that aim.”

Amy Howe of SCOTUSblog explains the separate opinions, Opinion analysis: Justices allow “peace cross” to stand:

In 1971, the Supreme Court outlined a test – known as the “Lemon test,” after the case in which it was established, for courts to use to determine whether a law or practice violates the establishment clause: The law or practice is constitutional if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”

But Breyer declined to use the Lemon test in the Texas case, explaining that there is “no single mechanical formula that can accurately draw the constitutional line in every case.” Breyer reasoned that although the Ten Commandments monument “undeniably has a religious message,” the state intended it to convey a secular message. Indeed, Breyer noted, no one had challenged the presence of the monument at the capitol for 40 years – which, he posited, suggested that the public regards it as part of a “broader moral and historical message reflective of a cultural heritage.”

Justice Samuel Alito wrote for the court today, in an opinion that once again eschewed the use of the Lemon test.

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Justice Stephen Breyer joined all of Alito’s opinion, but he also wrote a separate concurring opinion that was joined by Justice Elena Kagan. Breyer reiterated his belief that “there is no single formula for resolving Establishment Clause challenges.” Instead, he contended, the most important consideration in each case is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”

Breyer may have wanted to signal that (at least as far as he was concerned) today’s holding was a relatively narrow one. “The case would be different” for him, he indicated, “if there were evidence that the organizers had deliberately disrespected members of minority faiths or if the Cross had been erected only recently.” “Nor do I understand,” he continued, “the Court’s opinion today to adopt a history and tradition test that would permit any newly constructed religious memorial on public land.” History can provide guidance, Breyer conceded, but the Supreme Court today allowed the cross to stand only after “considering its particular historical context and its long-held place in the community. A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”

Justice Brett Kavanaugh also joined all of Alito’s opinion but had a separate concurring opinion. He expressed even stronger opposition to the Lemon test than did Alito’s opinion for the court. Contending that “the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law …

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Justice Elena Kagan joined most, but not all, of Alito’s opinion. But she wrote separately to note that, although she agreed “that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.”

Justice Clarence Thomas also would have allowed the cross to stand, but for a different reason: He believes that the Constitution’s establishment clause does not apply to the states at all. Even if it did apply to the states, he added, there would still not be any constitutional violation – either because the establishment clause only applies to laws passed by a legislature or because the clause requires actual coercion by the government. And he made clear that he would take what he regarded as “the logical next step and overrule the Lemon test in all contexts.”

Justice Neil Gorsuch also agreed that the cross should be permitted to remain in place, but he argued that the case should be dismissed, because the challengers do not have a legal right, known as “standing,” to bring a lawsuit. Simply being offended by the cross’s presence is not, Gorsuch contended, enough to justify the lawsuit. The idea that an “offended observer” can bring a lawsuit was, Gorsuch suggested, “invented” by the lower courts in response to the Lemon test, which Gorsuch described as a “misadventure”: “It sought a grand unified theory of the Establishment Clause but left us only a mess.”

Without expressly stating it, it would appear that the “Lemon test” is overruled and is no longer good law. This opinion argues that there is no single establishment clause test in these cases.

Justice Ruth Bader Ginsburg read her dissent, which was joined by Justice Sonia Sotomayor, from the bench – a move that justices generally reserve for opinions expressing strong disagreement with the majority’s ruling. Ginsburg rejected the idea that the cross is merely a secular symbol of World War I: “The Latin Cross,” she wrote, “is the foremost symbol of the Christian faith,” and using it as a war memorial doesn’t change that. A history of the efforts to bury American war dead in Europe after World War I shows, Ginsburg argued, that the cross “was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.” By “maintaining the Peace Cross on a public highway,” she argued, the Maryland government “elevates Christianity over other faiths, and religion over nonreligion.”

The fourth opinion is a unanimous (sort of) decision in PDR Network v. Carlton & Harris Chiropractic, by Justice Breyer, joined in full by Justices Roberts, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a concurring opinion in the judgment, joined by Justice Gorsuch. Justice Kavanaugh filed a concurring opinion in the judgment joined by Justices Thomas, Alito and Gorsuch. The Fourth Circuit is reversed and remanded. This is a case about whether the Hobbs Act bars a defendant in a private enforcement act from challenging the FCC’s legal interpretation of Telephone Consumer Protection Act. The Court says that the extent to which a 2006 order from the FCC binds the lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the court of appeals, so the Supreme Court sends it back for the court of appeals to resolve these issues. So basically the court punted.

H/T SCOTUSblog live blog analysis.