Monday round-up

AMY HOWE MAY 12, 2014 7:40 AM

Last week’s decision in Town of Greece v. Galloway, upholding a New York town’s practice of beginning its town council meetings with a prayer, continues to provide fodder for analysis.  In an article for The Wall Street Journal, Jess Bravin observes that the “decision reflects an ongoing shift among all nine current justices that is lowering barriers between church and state,” while in a post at the Journal’s Law Blog Bravin focuses on Justice Clarence Thomas’s separate opinion in the case, and in particular on Thomas’s suggestion that the First Amendment’s Establishment Clause does not apply to the states.  Commentary on the decision also continues around the blogosphere.  At Jost on Justice, Kenneth Jost discusses the decision in the context of a 2007 incident in which a Hindu priest from Nevada who was invited to offer a prayer in the Senate was met with protests; Jost contends that, “[w]ith an Establishment Clause pass from the Supreme Court, one can expect only more such acrimony in the future.”  Rick Garnett weighs in on the decision at PrawfsBlawg, where he contends that “[a]lthough a rule against religious establishments seems to me a good way to avoid ‘political divisiveness along religious lines,’ courts should not answer questions about what the Establishment Clause permits or prohibits by asking whether or not a policy or program is associated with, or is predicted to cause, or is observed to be accompanied by such ‘divisiveness.’”  In another post at PrawfsBlawg, Howard Wasserman responds to Garnett’s post, acknowledging that “[i]t is an open question when, exactly, an establishment occurs (which is Rick’s point),” but adding that “it is not as simple as Kennedy suggests in saying ‘you can always express your own views’–the government’s involvement changes the metric.”

Briefly:

• In The Atlantic, Garrett Epps discusses last week’s summary opinion in Tolan v. Cotton, in which the Court sent a lawsuit filed by a young man shot by a police officer back to the lower courts.  Epps contends that the Court’s decision “sent a quiet signal that this kind of thing won’t do; it was . . . the first time in a decade it has held against law enforcement in a ‘qualified immunity’ case. Let’s hope that signal is received.”
• In a post at CitiesSpeak, Lisa Soronen looks at last week’s grant in T-Mobile South v. City of Roswell, in which the Court has agreed to consider whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.  She explains that the case’s “impact . . . on local governments should not necessarily be underestimated.  First, the remedy for failing to meet the ‘in writing’ requirement isn’t a do over—it is a granting of the permit.  Second, meeting the ‘in writing’ requirement as T-Mobile would have it might be harder than you think.”
• In an op-ed for The Baltimore Sun, Robert Percival discusses Justice Scalia’s error in his dissent in Environmental Protection Agency v. EME Homer City Generation.  Percival concludes that “the real story here is that, rare as such errors are at the country’s highest court, even the justices who are surest in their views can benefit from proofreading their opinions one more time.”

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