There's a lot more where this procedure stuff came from if you need to take a moment to track down a Jägermeister. But after just about everyone has weighed in on what this case isn't about, Justices Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor beat up a little on Kagan for failing to raise the standing objection in the courts below. To the extent Justice Anthony Kennedy talks at all this morning, he takes a whack at her on this front as well. Just when it seems the procedural fun couldn't possibly get any more rollicking, the chief justice cautions Kagan that "before your time expires, we would like to spend a couple of minutes on the merits."
Kagan contends that the government can solve its Establishment Clause problems by putting up warning signs explaining that the big cross stands on private land. But Ginsburg point out that "this cross is high on a cliff in a desolate area. And if you had a little sign, you would have to climb up to it." So Kagan assures the court that the government could just post a big sign warning the public about the cross with the little sign saying it's not owned by the government.
While the idea of the federal government racing around curing all of its constitutional ills with large signs that indicate it has cured its constitutional ills holds a certain charm, it doesn't appear to garner five votes this morning.
Justice Samuel Alito puts forth his theory of the case, which is that the doughnut-transfer was constitutional magic: "Isn't the sensible interpretation of the injunction that it was prohibiting the government from permitting the display of the cross on government property, and not on private property that happens to be within the Mojave National Preserve?"
Eliaberg argues that it was a sham transfer, particularly because under the terms of the transfer, if the VFW fails to maintain the cross, it reverts back to the government. Scalia admits as much: "I will concede that the obvious purpose of that was to avoid being in violation of the injunction. But that doesn't mean that it's invalid."
Earlier in the morning, Kagan had told Ginsburg that the VFW could certainly rip the cross down after the transfer. Chief Justice Roberts asks Eliasberg whether he agrees. Eliasberg says it would be hard for them to pull down the cross because the federal government has now required the VFW to put up a plaque that reads "This cross erected in honor of the dead of foreign wars." A few minutes later, Roberts has rifled through the record and read the precise quote from the plaque. Eliasberg tries to apologize for misstating it, saying he was just answering "in the context of the question."
"The context of my question," Chief Justice Roberts snaps back, "Was what does the plaque say?"
This leads to Scalia's assertion that it's outrageous for non-Christians to conclude that crosses don't honor their dead, too. And then, just before he sits down, Eliasberg, who's been trying to wrap up his argument for at least 10 minutes, gets one last zinger from the chief justice: "Counsel, this probably doesn't have anything to do with anything, but I'm just kind of curious, why is this cross put up in the middle of nowhere?"
Kagan's rebuttal, for its part, is a three-minute wrestle with Justice John Paul Stevens. He refuses to take seriously her assertion that the doughnut transfer has "completely dissociated the government from that memorial."
"How can you say it's completely dissociated?" sputters Stevens. "If they don't maintain the cross, it goes back to the government?" Then he presses Kagan on her contention that the VFW might take the cross down someday: "Do you think anyone thought there is the remotest possibility they would put up a different war memorial?"
Stevens is as shocked by the fiction that the VFW might tear down the white cross as Scalia is shocked by the fiction that the cross is not a religious symbol. But then that's the great thing about these religion cases: We believe what we need to believe.