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Bench Memos

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What Happens in Greece Stays in Greece?



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The oral argument yesterday in Greece v. Galloway convinced me of two things. One is that the Court is going to reverse the Second Circuit’s opinion (holding the town’s prayer practice unconstitutional). The other is that no one on the Court — based upon what transpired during the argument – has a good idea of why. I do not mean by this second comment just that I – Gerry Bradley – think that the justices are clueless about this. I do think that. But I mean also that the justices all but confessed that they have no sound idea about how to think clear and coherent thoughts about legislative prayer. Justice Kagan recognized it when she said that the Court messes things up whenever it touches this matter of public prayer.

The Second Circuit opinion proves that Kagan is right. Guido Calabresi is a very smart, immensely experienced, and exceedingly fair-minded judge. He wrote the opinion in Galloway. In it he tried hard to bring Marsh v. Chambers and Establishment Clause law more generally to the matter at hand. The result was, well, a train wreck. The best Calabresi could do finally was this: looking at “the totality of the circumstances” “in context” and as a “whole” where no one “aspect” was controlling, the court’s (i.e., Calabresi’s) “legal judgment” (not, mind you, his “personal judgment” ) in light of the “underlying purposes” of the First Amendment and in light of the “consequences measured in light of these purposes,” was that a “reasonable, objective observer would perceive” that the town “affiliated itself with Christianity.”

My Cousin Vinny could not have made that one up. 

Besides, Calabresi’s supporting reasoning was not just unconvincing. It was unintelligible (as I described in my post yesterday on Public Discourse).

In any event, Calabresi could not have signaled more clearly that judicial resolution of these sorts of cases would be tantamount to an umpire’s call: ball or strike, and there is an end to it. One case could scarcely count as precedent for another. Each decision resolves the question on these facts, and none other. So positioned, one federal judge is soon going to reprise Potter Stewart’s most memorable line: cannot give any account of what “obscenity” is. But I sure “know it when I see it”.

In these circumstances the Supreme Court’s decision could go in either of two directions. One is that predicted by my colleague Rick Garnett: a lopsided reversal, announced in a terse opinion which cites Marsh, and does little more. The alternative is a reversal, with multiple opinions at least on the majority side.

For what it is worth, I think Rick will prove to be prescient.



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