Bench Memos

Another Classic Scalia Dissent

In the Kentucky 10 Commandments case, Justice Scalia wrote a dissent joined in whole by Rehnquist and Thomas and in part by Kennedy. Scalia read from the bench a summary of Part I of his dissent (the part that Kennedy did not join). Be sure to read it. Here are the key points:

1. The history of this country demonstrates that the majority’s proposition that the government cannot favor religion over irreligion is plainly false.

2. “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” The majority flunks that test.

3. “If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.” “Historical practices . . . demonstrate that there is a distance between the acknkowledgment of a single Creator and the establishment of a religion.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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