Bench Memos

This Day in Liberal Judicial Activism—December 25

1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.

Most Popular

In Praise of Trade School

About a decade ago, I participated in a discussion hosted by the chamber of commerce in a university town about state policies regarding higher education. I’ll never forget the first comment I got from one of the attendees. “The problem with your presentation,” she said, “is that it didn’t focus ... Read More

In Praise of Trade School

About a decade ago, I participated in a discussion hosted by the chamber of commerce in a university town about state policies regarding higher education. I’ll never forget the first comment I got from one of the attendees. “The problem with your presentation,” she said, “is that it didn’t focus ... Read More

The Last Days of Robin Williams

After Robin Williams hanged himself in 2014, the media speculated that financial troubles or depression related to drug or alcohol use might have been the cause. Without discussing those topics, Williams’s widow, Susan Schneider Williams, is eager to set the record straight and does so in Robin’s Wish, a ... Read More

The Last Days of Robin Williams

After Robin Williams hanged himself in 2014, the media speculated that financial troubles or depression related to drug or alcohol use might have been the cause. Without discussing those topics, Williams’s widow, Susan Schneider Williams, is eager to set the record straight and does so in Robin’s Wish, a ... Read More
Media

How American Journalism Died

In 2017, the liberal Shorenstein Center on Media, Politics, and Public Policy at Harvard University found that 93 percent of CNN’s coverage of the Trump administration was negative. The center found similarly negative Trump coverage at other major news outlets. The election year 2020 has only accelerated ... Read More
Media

How American Journalism Died

In 2017, the liberal Shorenstein Center on Media, Politics, and Public Policy at Harvard University found that 93 percent of CNN’s coverage of the Trump administration was negative. The center found similarly negative Trump coverage at other major news outlets. The election year 2020 has only accelerated ... Read More
World

Why Trump’s Mideast Peace Deals Matter

After Israel’s resounding victory over the Egyptian, Jordanian, and Syrian armies in 1967, the Jewish state again offered the Arab world peace in exchange for recognition. And it was again rebuffed. Instead, the Arab League convened in Khartoum to formulate a consensus response that became known as “The 3 ... Read More
World

Why Trump’s Mideast Peace Deals Matter

After Israel’s resounding victory over the Egyptian, Jordanian, and Syrian armies in 1967, the Jewish state again offered the Arab world peace in exchange for recognition. And it was again rebuffed. Instead, the Arab League convened in Khartoum to formulate a consensus response that became known as “The 3 ... Read More
National Security & Defense

Jared Kushner Was Right

Over the past several years, a new certainty was added to death and taxes: Jared Kushner would fail in his role as the administration’s Middle East point man. It caused considerable merriment among President Donald Trump’s critics (and even some of his well-wishers) when he put his son-in-law in charge of ... Read More
National Security & Defense

Jared Kushner Was Right

Over the past several years, a new certainty was added to death and taxes: Jared Kushner would fail in his role as the administration’s Middle East point man. It caused considerable merriment among President Donald Trump’s critics (and even some of his well-wishers) when he put his son-in-law in charge of ... Read More