Bench Memos

Salazar v. Buono

The Supreme Court has just issued its opinion in Salazar v. Buono, a case that presented an Establishment Clause challenge to a cross that members of the Veterans of Foreign War placed on federal land in 1934 to honor American soldiers who died in World War I.  In the midst of litigation against the cross, a federal law enacted in 2004 directed the Secretary of the Interior to transfer the land to VFW.

Based on my skim of the six opinions that the case generated, here’s an attempt at a quick summary:

1.  The lead plurality opinion by Justice Kennedy concludes that (a) the plaintiff had standing to assert his challenge under the Establishment Clause, (b) the district court erred in enjoining the government from implementing the 2004 land-transfer statute, and (c) remand is appropriate so that the district court can address more carefully whether the land-transfer statute should be enjoined.  The Chief Justice joined Kennedy’s opinion in full.  Justice Alito joined conclusions (a) and (b) but not (c).

2.  Justice Alito would not remand the case but would instead hold that the land-transfer statute may be implemented.

3.  Justice Scalia, joined by Justice Thomas, would hold that the plaintiff lacked standing.

4.  The four dissenters would leave in place the district court’s judgment.  Justice Stevens, joined by Justices Ginsburg and Sotomayor, wrote one dissent.  Justice Breyer wrote another.

I will supplement (and, if necessary, correct) this account once I have read more carefully through the opinions.

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