On the Supreme Court's Decisions

Reply Thu 29 Apr, 2010 09:07 am
Regarding the Supreme Court's recent decision on Salazar v. Buono, involving the erection of a cross on federal property, a deeply fractured court issued a series of opinions that SCOTUS Blog summarized thusly:

** There are five votes for the conclusion that a federal judge was wrong in barring a congressionally-ordered transfer of the plot of ground on which the cross stands to private ownership, although that result came from two different kinds of reasoning: three Justices said it was wrong as a legal proposition, while two said the Park Service employee should never have been allowed to pursue his complaint. Four other Justices would have upheld the judge’s order (for two different reasons).

** Despite the conclusion that the federal judge was wrong on that point, the Court voted 4-4 to send the case back to that judge to take another look, more closely, at Congress’ action. The four votes in favor of sending the case back were supported by two different rationales. Four other Justices opposed the remand, but that, too, resulted from two different approaches. With the Court split evenly on that issue, though, the case definitely will go back because that is the formal “judgment” of the Court, which had five votes behind it (based on three different rationales).

** There were three votes for the notion that the Court should not even have decided this case: two Justices said so because of their view that the cross’s challenger had no right to be in court, and one said so because there was “no federal question of general significance in this case.” Those views did not prevail.

I was reminded of the keen observations of Hibernian bartender-philosopher Mr. Dooley on how a similarly divided court approached the issue of whether "the constitution follows the flag:"

'Tis a matther iv limons, Hinnissy, that th' Supreme Coort has been settin' on f'r this gineration " a cargo iv limons sint fr'm Porther Ricky to some Eyetalian in Philydelphy. Th' decision was r-read be Brown J., him bein' th' las' justice to make up his mind, an' ex-officio, as Hogan says, th' first to speak, afther a crool an' bitther contest. Says Brown J. : ' Th' question here is wan iv such gr-reat importance that we've been sthrugglin' over it iver since ye see us las' an' on'y come to a decision (Fuller C. J., Gray J., Harlan J., Shiras J., McKenna J., White J., Brewer J., an' Peckham J. dissentin' fr'm me an' each other) because iv th' hot weather comin' on. Wash'n'ton is a dhreadfiil place in summer (Fuller C. J. dissentin'). Th' whole fabric iv our government is threatened, th' lives iv our people an' th' pro-gress iv civilization put to th' bad. Men ar-re excited. But why ? We ar-re not (Harlan J., " I am." Fuller C. J. dissentin', but not f'r th' same reason.) This thing must be settled wan way or th' other undher that dear ol' constitution be varchue iv which we are here an' ye ar-re there an' Congress is out West practicin' law. Now what does th' constitution say ? We 'll look it up thoroughly whin we get through with this case (th' rest iv th' coort dissentin'). In th' manetime we must be governed be th' ordnances iv th' Khan iv Beloochistau, th' laws iv Hinnery th' Eighth, th' opinyon iv Justice iv th' Peace Oscar Larson in th' case iv th' township iv Red Wing varsus Petersen, an' th' Dhred Scott decision. What do they say about limons ? Nawthin' at all. Again we take th' Dhred Scott decision. This is wan iv th' worst I iver r-read. If I cudden't write a betther wan with blindhers on, I'd leap off th' bench. This horrible fluke iv a decision throws a gr-reat, an almost dazzlin' light on th' case- I will turn it off. (McKenna J. concurs, but thinks it ought to be blowed out.) But where was I? I must put on me specs. Oh, about th' limons. Well, th' decision iv th' Coort (th' others dissentin') is as follows : First, that th' Disthrict iv Columbja is a state; second, that it is not ; third, that New York is a state ; fourth, that it is a crown colony ; fifth, that all states ar-re states an' all territories ar-re territories in th' eyes iv other powers, but Gawd knows what they ar-re at home. In th' case iv Hogan varsus Mullins, th' decision is he must paper th' barn. (Hinnery VIII, sixteen, six, four, eleven.) In Wiggins varsus et al. th' cow belonged. (Louis XIV, 90 in rem.) In E. P. Vigore varsus Ad Lib., the custody iv th' childher. I 'll now fall back a furlong or two in me chair, while me larned but misguided collagues r-read th' Histhry iv Iceland to show ye how wrong I am. But mind ye, what I've said goes. I let thim talk because it exercises their throats, but ye've heard all th' decision on this limon case that 'll get into th' fourth reader.' A voice fr'm th' audjeence, 'Do I get me money back ? ' Brown J. : 'Who ar-re ye ? ' Th' Voice : ' Th' man that ownded th' limons.' Brown J. : 'I don't know.' (Gray J., White J., dissentin' an' th' r-rest iv th' birds concurrin' but f'r entirely diff'rent reasons.)

" An' there ye have th' decision, Hinnissy, that 's shaken th' intellicts iv th' nation to their very foundations, or will if they thry to read it. Tis all r-right. Look it over some time. 'T is fine spoort if ye don't care f'r checkers. Some say it laves th' flag up in th' air an' some say that 's where it laves th' constitution. Annyhow, something's in th' air. But there's wan thing I'm sure about"

" What's that ? " asked Mr. Hennessy.

"That is," said Mr. Dooley, "no matther whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns."
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Reply Thu 29 Apr, 2010 04:37 pm
"Deeply fractured court"
Indeed, Joe. I was struck by how the justices were all over the place on this when I first read about it.
I am inclined to believe that the case should never have been heard in the first place.
We have been down this road before. Crosses or symbols from other religions in military graveyards. "In God we trust" on coins.
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