The Corner

From Scalia’s Kentucky Dissent

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

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