Here’s a quick stab at summarizing the dissents by Justice Stevens (26 pages) and Justice Breyer in Salazar v. Buono:
A. Justice Stevens’s dissent (joined by Justices Ginsburg and Sotomayor):
The procedural posture of this case significantly narrows the question presented. For the purpose of this case, the final judgment in Buono I settles that the Sunrise Rock cross will project a message of government endorsement of religion to a reasonable observer and that the district court’s 2002 injunction was proper. The question we confront is whether the district court properly enforced its 2002 injunction by enjoining the government from implementing the 2004 land-transfer statute. (Slip op. at 2-6.)
The first step is whether the transfer would violate the 2002 injunction. Under the terms of that injunction (which barred the government from “permitting the display of the Latin cross in the area of Sunrise Rock”), the answer was yes. The transfer would be an act permitting the display of the cross. (Slip op. at 6-7.)
The second step is whether enjoining the transfer was necessary to achieve the objective of the 2002 injunction. Because it must be taken as settled, for purposes of the case, that the cross conveys a religious message, the transfer would result in continuing government endorsement of religion. It would continue to appear to any reasonable observer that the government has endorsed the cross, and the purpose of the transfer is to preserve the display of the cross. (See generally slip op. at 7-25.)
B. Justice Breyer’s dissent:
This case presents no significant issue of Establishment Clause law. Because of the final judgment in Buono I, we must take as a given the district court’s resolution of the Establishment Clause question before the land transfer. The only question before us is whether the law permits the district court to hold that the law transfer falls within the scope of its 2002 injunction. The legal principles that answer that question are found in the law of injunctions. The law of injunctions gives a district court considerable leeway to interpret its own injunction and enables it to construe it in light of its purpose and history. These principles adequately support the district court’s actions.
Because I believe there is no federal question of significance, I think that we should not have granted review in this case, and I would dismiss the writ of certiorari as improvidently granted.





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