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. That is what
prevents judges from ruling now this way, now that
thumbs up or thumbs down as their personal preferences
dictate. Today’s opinion forthrightly (or actually, somewhat
less than forthrightly) admits that it does not rest
upon consistently applied principle. In a revealing footnote,
ante, at 11, n. 10, the Court acknowledges that the
Establishment Clause doctrine it purports to be applying
lacks the comfort of categorical absolutes. What the
Court means by this lovely euphemism is that sometimes
the Court chooses to decide cases on the principle that
government cannot favor religion, and sometimes it does
not. The footnote goes on to say that [i]n special instances
we have found good reason to dispense with the
principle, but [n]o such reasons present themselves here.
Ibid. It does not identify all of those special instances,
much less identify the good reason for their existence.
I