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Saturday, December 31, 2005

"In and Out of the Mainstream"

The Washington Post provides an analysis of Judge Alito's opinions here, in an article called "Alito:  In and Out of the Mainstream."  The piece strikes me as fair, though -- I admit -- I am not wild about journalists' (and political scientists') practice of categorizing judges on the basis of which side wins in particular kinds of cases.   (As the authors note:  "The idea of trying to gauge a judge's ideology from his voting patterns on different types of cases is unpopular among law professors who prefer to study legal reasoning case by case.  But the method used by The Post is well accepted among political scientists -- many of whom clump together votes on types of cases to determine whether a judge is liberal or conservative, a step The Post did not take.").

Two quick thoughts:  First, how helpful is the idea of the "mainstream" -- defined here, apparently, by the behavior of the "average" judge -- in this context?  Put differently, is it reasonable to be surprised, or even troubled, if it turns out to be the case that a Supreme Court nominee is a few notches left or right of the "average"?

Second, I am not sure I agree with Professor Chip Lupu (who has forgotten more about church-state law than I know), who is quoted in this passage about Judge Alito's religion-related cases:

Alito's views differ from those of most appellate judges and all the current members of the Supreme Court, Lupu said, because "he is on the side of whoever is trying to include or advance a religious message." Alito has taken a narrow view of the First Amendment's establishment clause, which forbids the government to sponsor any religion, and an expansive view of its free-exercise clause, which protects people's rights to worship as they want.

In an establishment-clause case in the analysis, American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler , Alito wrote a 1999 majority opinion upholding the constitutionality of a holiday display in front of City Hall in Jersey City. A lower court had banned the display a few years earlier, when it featured a Hanukkah menorah and a Christmas tree. Two weeks later, the city put it back up with changes, adding a large plastic Santa Claus, Frosty the Snowman, a red sled and Kwanzaa symbols.

Alito said the secular additions "demystified" the religious symbols and made the display legal. In a dissent, Judge Richard Lowell Nygaard, a Reagan appointee, wrote that the "addition of a few small token secular objects is not enough to constitutionally legitimate the modified display."

In a free-exercise case, Alito sided with a boy named Zachary Hood in Medford, N.J., who, as a kindergartner, made a poster on which he had drawn a picture of Jesus as an example of something he was thankful for. In first grade, when allowed to bring a book to read to class, he brought "The Beginner's Bible: Timeless Children's Stories."

The court's majority ruled in favor of the school system and teachers, who removed the boy's poster from a wall and forbade him to read the Bible stories to his class. Alito dissented, writing that "discriminatory treatment of the poster because of its 'religious theme' would violate the First Amendment." He reasoned that "public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment."

It seems to me that Judge Alito's vote in Zachary Hood's case does not put him at odds with those Justices who (like Justice O'Connor, whom Judge Alito will replace) believe that government may allow -- and, in some circumstances, even sponsor -- religious symbols without running afoul of the Establishment Clause.  Hood's case seems more like Lukumi -- a 9-0 case -- than Smith, doesn't it?

Posted by Rick Garnett on December 31, 2005 at 09:41 PM in Constitutional thoughts | Permalink

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