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2) This week we are hosting an online symposium on The American Legion v. American Humanist Association, a dispute over the constitutionality of a cross that sits on a traffic median in Maryland. Contributions, as well as Amy Howe’s introduction to the case, are available at this link.

Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

About four and a half years ago, here at SCOTUSblog, commenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound.

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Marci A. Hamilton is Robert A. Fox Professor of Practice and Senior Resident Fellow of the Program for Research on Religion at the University of Pennsylvania.

The Supreme Court’s grant of certiorari in The American Legion v. American Humanist Association (along with a companion case brought by the state involving the same facts) is troubling. There was no split in the circuits that required the Supreme Court’s attention and the rulings in both cases were eminently reasonable. In the American Legion case in particular, a large, and I mean huge, cross dominates an intersection. It is intended to be dedicated to veterans of World War I, and is referred to as the Bladensburg World War I Veterans Memorial. There is no question, however, that it is a deeply religious symbol on public property that sends a message of government endorsement of Christ and Christianity. The government has had to pay over $100,000 for upkeep. The U.S. Court of Appeals for the 4th Circuit correctly held it is a violation of the establishment clause and remanded for consideration of either removal or adding other religious symbols for the purpose of changing the Christian message to one of religious diversity and inclusion. The Supreme Court’s grant signals that the current conservative members of the Supreme Court may be poised to do what many feared they might: further cripple the separation of church and state.

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Tuesday round-up

By on Dec 11, 2018 at 7:00 am

Yesterday the Supreme Court issued additional orders from its conference last Friday, adding one case to its merits docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Education Week’s School Law Blog, Mark Walsh reports that the court agreed to review Kisor v. Wilkie, which raises “an important question about when courts should defer to a federal agency’s interpretation of its own ambiguous regulations.” Additional coverage comes from Tony Mauro at The National Law Journal (subscription or registration required) and from Ellen Gilmer at E&E News, who reports that the case “centers on veteran benefits but has broader implications for the degree to which judges yield to agency decisionmaking.” Jordan Rubin and Kimberly Robinson report for Bloomberg Law that “what the justices say could suggest that Chevron deference—the rule giving deference to agency interpretations of statutes—could itself be in the cross hairs.”

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In a brief and straightforward opinion, the Supreme Court ruled unanimously today that “burglary” as used in the federal Armed Career Criminal Act encompasses not just buildings but also any “vehicle that has been adapted or is customarily used for overnight accommodation.” As I previously reported, today’s two consolidated cases (U.S. v. Stitt and U.S. v. Sims) were argued on the same day (October 9, Justice Brett Kavanaugh’s first day on the Supreme Court bench) as another ACCA case, Stokeling v. U.S. The court this morning did not issue an opinion in Stokeling, suggesting that the justices who have expressed unhappiness with the ACCA in the past may be holding their fire (that is, writing separate opinions) for Stokeling, which presumably will now not be decided until next year. Today’s opinion in Stitt is crisp, clear and devoid of controversy.     Continue reading »

Over the years, the Supreme Court has sometimes struggled to explain when and why religious symbols are permitted in the public sphere and when they are not. Sometime early in 2019, the justices will hear oral argument in a dispute over the constitutionality of a cross that sits on a traffic median in the suburbs outside Washington, D.C. The challengers say that the cross is an illegal government endorsement of Christianity, while its defenders counter that the cross is simply a secular war memorial. The justices’ eventual opinion will likely decide the fate of the cross, but the ruling could also clarify – or potentially even revamp – the Supreme Court’s test for resolving these kinds of challenges.

The Constitution’s establishment clause bars the government from both establishing an official religion and favoring one religion over another. In 1971, in a case called Lemon v. Kurtzman, the Supreme Court struck down state programs that provided financial support for private schools, including religious ones. At the same time, the justices also outlined a test for courts to use to determine whether a government law or practice violates the establishment clause. They concluded that the law or practice will pass constitutional muster if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”

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Last week the justices added one new case to their merits docket for the term – a relatively obscure maritime-law case. Somewhat unexpectedly, they added another new case today that will almost certainly have a much higher profile, at least in the legal world: Kisor v. Wilkie, in which the Supreme Court will consider whether to overrule a line of cases instructing courts to defer to an agency’s interpretation of its own regulation. The court’s ruling could have significant implications for administrative law, and it could also again bring to the forefront the question of when and whether the justices should overrule their prior cases.

Today’s new grant comes in a case brought by James Kisor, a Marine who served in the Vietnam War and sought benefits for post-traumatic stress disorder. In 2006, the Department of Veterans Affairs agreed that Kisor suffers from PTSD, but it refused to give him benefits dating back to 1983, when he had first filed a claim for benefits.

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There are twice as many women in this episode as there were at the Supreme Court podium in the whole December sitting. Leah Litman and guest host Jaime Santos recap the week’s arguments with two special guests. First, we’re delighted to have with us Lindsay See, the solicitor general of West Virginia, to discuss her argument in Dawson v. Steager. Then, we play the highlight reel of another first-time advocate, Ishan Bhabha, in Biestek v. Berryhill. Finally, Kate Levine calls in to help us understand a case that kind of baffled us last week: Gamble v. United States.

Monday round-up

By on Dec 10, 2018 at 6:53 am


  • For The New York Times, Adam Liptak takes a look at the history behind “an awkward and illuminating tradition at the Supreme Court: the group photographs prepared when a new justice joins the court.”
  • As Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, on Friday the justices issued orders from their private conference; they added one case to their merits docket: maritime-law dispute The Dutra Group v. Batterton.
  • At CNN, Joan Biskupic reports that Justice Ruth Bader Ginsburg’s “relentless” questioning in a double jeopardy case last week sent a “message, explicit then, and implicit in other instances over the past month: I’m still here.”
  • Tony Mauro observes at The National Law Journal (subscription or registration required) that “[i]t is rare for justices to compliment the lawyers before them for the quality of their briefs, but Justice Stephen Breyer did just that during oral argument” last week in patent case Helsinn Healthcare v. Teva Pharmaceuticals.
  • At Good Judgment, Ryan Adler invites readers to forecast the result in Tennessee Wine & Spirits Retailers Association v. Blair, “a challenge to the state of Tennessee’s durational residency requirements for liquor licensing”  in which the court will confront a “dichotomy between … two constitutional tenets”:  the 21st Amendment and the dormant commerce clause.

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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This week at the court

By on Dec 9, 2018 at 12:00 pm

The Supreme Court released orders from the December 7 conference on Monday; the justices added Kisor v. Wilkie to their merits docket for this term. The justices also released their decision in United States v. Stitt on Monday.

The justices will meet next for their January 4 conference. The calendar for the January sitting, which will begin on January 7, is available on the Supreme Court’s website.


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