SUNDAY NIGHT READING THOUGHTS:
Earlier tonight I re-read Marbury v. Madison for class tomorrow (we'll also be reading Van Orden v. Perry). The last time I read it in its entirety was Sophomore year, for my Courts, Politics and Society class (and, given my reading habits at the time, it's entirely possible I didn't read it all then, either). Re-reading made it clear why it usually gets skipped or summarized in classes--Marshall has a way of repeating himself, and it's one of the decisions where the dicta is more prominent than the holding. The latter will confuse my students; it confused me, because I refused to believe that the whole cases hinges on Marbury appealing to the Court's original jurisdiction, rather than its appellate jurisdiction (me: "wait. what? if he'd gone to any other federal court, and then to the Supreme Court, he would've won, assuming he couldn't get the writ at a lower level?"), but those are the facts. But it's principled, politically risky, and a fine example of what judges can do even when their formal powers are limited. Kind of makes you proud to be an American.
(Van Orden v. Perry, by contrast, makes you want to bang your head against the wall. But at least three justices agree there's no principle behind the Court's Establishment Clause jurisprudence. Breyer, for reasons Dara can perhaps explain to me, seems to think this is a good thing.)
"Thou shalt not extinguish thine anger, but shall master it,
that thy conscience may not be blunted by adjustment
to wrong causes."
-The Dutch Ten Commandments to Foil the Nazis
4 comments:
Well, hmm. So obviously, being the rabid liberal that I am, I'm not a huge fan of this decision. I prefer the Lemon test; I'm generally in favor of some sort of at least theoretically objective factors to measure something like state endorsement of religion, which is so susceptible to subjectivity in judgment. The truth is, it makes no sense to me that the Court chose not to use the Lemon test here - why not look at the purpose and effect of the Commandments, and see if maintaining them led to excessive entanglement with religion? They could easily have reached the same result. In fact, if you really read the analysis, it effectively uses the same test in different words. So it seems to me that the only reason to avoid using the test itself is to dodge precedent. Establishment Clause jurisprudence was pretty robust, and may have overcome what a (now more conservative Court) found to be reasoned application of the test itself. In other words, stare decisis might have led them to an outcome they didn't like, so they had to pretend not to use the test. At least, that's how I see it.
But then there's Breyer, of course. I think he believes (and not entirely inappropriately) that the Lemon test is just fake objectivity; that the factors are just a mask for subjectivity anyway, and there's no point in forcing your subjective opinions artificially and uncomfortably into the Lemon boxes. I don't think it's consistency in the jurisprudence he opposes; he sees existing law as a pretext for objectivity, and wants to dispel that myth. In short, it seems to me that he's saying, we've never really cared about the factors in the Lemon test, we've always just did whatever we thought made sense and pretended there was some structure. Why not abandon pretense and admit that it's just a matter of opinion? Of course, he can't come out and say that - it'd be pretty disrespectful to previous Courts' decisions, I suppose - so he just says he doesn't think the test applies here, and simple judgment is appropriate instead.
This actually reminds me of some equal protection stuff I've read, saying that the classification system isn't appropriate, and there should just be a sliding scale of scrutiny, depending on the circumstances, because after VMI and especially after Lawrence, that seems to be what's being done anyway...
...But I long ago digressed. And I could certainly be completely, utterly, foolishly wrong. So...disclaimer spoken. :-)
Seems like an odd pairing of cases to me. But that's why I'm not a theorist, I guess :)
The idea was originally to spend only one day reading Supreme Court decisions. Marbury for obvious reasons, Van Orden because it's a plurality decision with a concurrence and a dissent that employ some pretty strong, and different, arguments, and the difference in interpretation of facts is very clear.
Now, of course, we're going to spend another extra couple classes on this, so it does look rather more... arbitrary.
I could make up something really plausible sounding about how the two are really about the same thing, and it's fundamental to the nature of the Court...but I'd rather just eat chocolate and read this really cool order.
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