Oral Argument in Summum

After a post on the background of the case and one about its weirdness,  I wanted to note some interesting things about the oral argument (well, at least I find them interesting).  Whole transcript available here (HT: Religion Clause).  For other background info on the case, see here and here. 

Short answer: Summum is in trouble.  Maybe 9-0 trouble? 

Longer answer: past the break.

My solemn vow:  Yes, I will post on other topics...

Some interesting things happened, and the whole transcript is worth a read.  But I found most revealing this exchange between Summum's counsel and Justice Souter.   Remember that there's an existing Ten Commandments display in the park, which was given to the City by the Fraternal Order of Eagles in 1971.  In order to win, Summum's counsel needs to convince the Court that that display is really the Eagles' speech, and not really the government's speech.   (It being the Eagles' speech is what makes Summum's claim of discrimination valid.)  So Summum argues that the display was the Eagles' message in 1971, and it's the Eagles' message now.  But that claim is really hard to square with the fact that the display has been owned and controlled by the government and has been sitting in a government park for 36 years.  The Eagles haven't really been involved since 1971 -- so how is this their speech?  So Summum's counsel says that the crucial thing is this -- it can't be the government's speech until the City officially adopts it by some sort of resolution.  Hence this exchange (p. 38):

JUSTICE SOUTER:  So this case -- your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?

MS. HARRIS:  It would, Justice Souter.  We would no longer have an equal access right going forward --

JUSTICE SOUTER:  But that's -- I mean, if that's all that's involved here, we're engaging in kind of a -- almost a silly exercise in formality.

Now Summum's counsel tries to say it's not a mere formality.  She suggests that much of the Mormon population might object to the display because it's not the Mormon version of the Ten Commandments.  But Souter's formality point doesn't seem to go away -- p.s., it also gives Pleasant Grove an easy way to moot the case.  But besides being arguably a formality, it's difficult to see where the "official resolution" requirement would be coming from in terms of precedent or principle.   (By the way, I am not suggesting that Summum's counsel was anything less than tremendous; it seems just that the facts and the law may not exactly be on Summum's side.)

So let me indulge in a ridiculously overconfident prediction that is really just crazy speculation -- maybe Summum loses 9-0?  I mean, there's real possibilities the Court could fracture along lots of lines.  Both Justice Souter (p. 10-11) and Justice Breyer (p. 24) brought up the possibility of the Court recognizing the category of "hybrid speech."  Justice Stevens (p. 23) suggested that perhaps the government-speech label shouldn't mean that government has absolute discretion to discriminate in abhorrent ways.   I don't think Justice Stevens liked the answer from the deputy SG in the following exchange (Stevens: Well, supposing the Government in the Vietnam Memorial decided not to put up the names of any homosexual soliders.  Would that be permissible?  Joseffer: Yes....").  But I don't think the Court needs to get into any of that to resolve the current case.  I guess we'll see.