Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
Along with the Bond orals, I was somewhat depressed by this, though the arguments (including by the deputy SG who finally got another chance in front of the big boys/girls) generally were better as a whole.
Again, the "liberals" came off the best though to be fair, Alito and Roberts at times add something useful to the affair in these cases. They both often (when Roberts doesn't go the light route) are rather harsh or sarcastic, but have a pretty good track record ... at least as compared to Scalia, who seems to be slumming it of late (this time, he noted how his question at one point had a nice alliterative flavor). Still ...
Kennedy at one point wondered (darn assistant AG following the test set forth by precedent -- Marsh -- again) how chaplains could be asked to not proselytize -- what is the point of them being there? Well, putting aside that (as the ACLU brief cited last time notes) many legislatures do counsel general invocations to be inclusive [the challenger's attorney noted that was done back in the day too, but it just was that inclusive then was bland Protestantism], "tolerable acknowledgment of beliefs widely held among the people of this country." They are not their to preach their particular religious faith -- they are to serve the interests of the group.
There was not much interest -- other than maybe from Breyer -- to compromise much here or note the special nature of the small town meeting context here. The fact there might somewhere be teen pages in the gallery in the U.S. Congress -- to allude to a bit noted by the town -- doesn't really make it the same as a town meeting which is a more small and contained group, including those there to petition right there. It was left, of course, to couple of the liberals to note such things.
Alito basically used current religious diversity against the challengers. The usual argument here is that diversity makes establishments more problematic, since there is more of a split of views. Here, there are so many diverse views, there just cannot be a truly non-sectarian prayer. I covered this already, so won't belabor the point, but that is a sort of nice Catch 22. Finally, as even the town lawyer noted, there have been non-religious (or atheist/humanist/whatever) invocations made. It's possible to have a system where a majority of the prayers aren't Christian in nature.
Bets on how many opinions there are -- pretty sure Ginsburg/Sotomayor/Kagan will write a separate concurrence or dissent. Justice Sotomayor joined Stevens in Salazar v. Buono, a military display case that Kagan argued. Ginsburg also has generally been a separationist here.