Dear Tim and Walter,
First, to Tim's last excellent observation about the importance of "etiquette"—I think you're speaking as well to last year's sentencing decisions ("It's not nice to trash the guidelines ... ") and to the increasing reliance on foreign law ("It's not nice to diss the Australians ... "). The new Breyer-O'Connor theme song could well be that old tune, "It's Not What You Do (It's the Way that You Do It)."
In one sense, the Breyer-O'Connor allowance for unobtrusive, tasteful religious display, as you describe it, mirrors Mark Tushnet's terrific analysis about the fragmentation of the court's conservatives into hard-core Reagan Republicans and old-school country-club Republicans. Neither Breyer nor O'Connor are hostile toward religion per se, as Walter observed. But they are both uncomfortable with what they see as religious zealotry—read religion grown out-of-control. That's why O'Connor's concurrence in McCreary is so telling: "At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate."
I think that some vestigial unease with extreme shows of religiosity in any form may also explain why Anthony Kennedy (evidently now a recovering country-club Republican) could not bring himself to sign off on the fire-and-brimstone first section of Antonin Scalia's McCreary dissent—the part in which Scalia suggests that government can and should promote some brand of Judeo-Christian monotheism since 97.7 percent of all American believers would be accommodated.
Walter, as to your post from last night, I can't recall a time when I have been as moved by your eloquence or so certain, respectfully, of your wrongness. Yesterday's commandments opinions were only significant in that the court revealed how ends-driven these religion decisions really are. Your analysis of how the various justices feel about government advancement of religion is spot-on. Your explanation for why Justice Breyer decided to hold his nose and vote to uphold the Texas monument is more than persuasive. But is there some rule undergirding all of this? Has some fixed legal principle emerged from these two cases, beyond, as Scalia puts it, rulings by justices that go "now this way, now that, thumbs up or thumbs down—as their personal preferences dictate."
My earlier statement that these cases are meaningless stemmed not from their lack of social and cultural significance. It came from my sense that there was no law announced yesterday. These cases may illuminate a lot of personal preferences, but they tell us very little about how lower courts should decide the next case, or the one after that. (Lemon may apply, except when it doesn't. Old monuments will be permitted, except when they won't.) Maybe I have just drunk too deeply from the Scalia Kool-Aid well, but Breyer's choice to resort to "the exercise of legal judgment" offers approximately little guidance to every other judge faced with a similar case in the future. Sure, that judge can look to setting and context—but she already knew that. Now she knows that older monuments are somehow less suspect. But she hardly knows why.
The dishonesty in these religious-display cases is crazy-making. Start with the fiction that those seeking government endorsement of religion want to see nonsectarian references to a broad Judeo-Christian-Muslim monotheism. The resolutions in the two Kentucky counties, as well as Roy Moore's courthouse tablets, were not about Charlton Heston's Moses; however, they were about blatant government claims that this is a Christian country. Then there's the dishonesty surrounding what I've called the "Teddy Ruxpin Test," or what Burt Neuborne describes here as the "two plastic animals rule." The notion that openly religious symbols can be somehow purified or secularized by proximity to a large stuffed toy is not only dishonest, it's also insulting to anyone who values that symbol. This is not a fight about secular foundational symbols—it's a fight about whether the government can push sectarian religion. The court's decisions yesterday will only encourage more pretext in all future displays. Every public religious symbol will now be "foundational and historical."
We haven't talked at all about the court's decision not to hear the appeal of Matt Cooper and Judith Miller. What does it signify that the court won't take up the issue of a journalist's privilege? And I'd like to hear predictions about a Rehnquist retirement. Conceding that I have offered the same (wrong) prediction virtually every year at this same breakfast table, I still think an announcement may be on the way. ...