Patterico's Pontifications


The Establishment Of Supreme Incompetence

Filed under: Constitutional Law,Court Decisions,General — Justin Levine @ 3:53 am

[posted by Justin Levine]

Legal quote of the day, courtesy of the Supreme Court’s oral arguments in its latest Establishment Clause case:

JUSTICE ALITO: General Clement, are you arguing that these lines that you’re drawing make a lot of sense in an abstract sense? Or are you just arguing that this is the best that can be done within the body of precedent that the Court has handed down in this area?

GENERAL CLEMENT: The latter, Justice Alito.


GENERAL CLEMENT: And I appreciate — I appreciate the question.

JUSTICE SCALIA: Why didn’t you say so?

JUSTICE SCALIA: I — I’ve been trying to make sense out of what you’re saying. (Laughter.)

GENERAL CLEMENT: Well, and I’ve been trying to make sense out of this Court’s precedents.



I have been saying this for years – the Supreme Court’s precedent in Establishment Clause jurisprudence has been an utter disgrace and a wholesale disaster. Nobody can understand it. Only those with an ideological agenda even pretend to understand it by cherry-picking the sections of inconsistent decisions that support their views while ignoring the other (still valid) decisions which would clearly contradict them.

Previous ultra-hyperventilating rantings on this subject throughout the years here, here, here, here, here, here, and here.

[posted by Justin Levine]

25 Responses to “The Establishment Of Supreme Incompetence”

  1. If half of the rulings favor one side and half the other, that’s justice – right?

    Amphipolis (fdbc48)

  2. I think the justices want the rules to be confused in this area, so they can have fun bullshitting about religion more of the time.

    Daryl Herbert (4ecd4c)

  3. My guess is that this area of the law may become quite clear in the near future.

    MOG (c949f7)

  4. Thanks for posting this. It would have been a fun argument to listen in on. I pity the law students and lawyers who have to deal with this mess.

    DRJ (605076)

  5. The word I have used to describe SCOTUS establishment-clause jurisprudence is “psychotic”.

    Of course, we must understand that rulings come about through consensus and compromise, and from case to case the arguments and votes lean one way or the other and they have to make the best of the given situation.

    Or… some of the SCOTUS justices like it this way because it gives them more power over everybody else’s lives.

    ELC (a84138)

  6. hope the taxpayers win.
    the marshal challenge is easily answered. even if the marshal didn’t open court sessions with references to god, he or she would still be sitting at the marshal desk drawing that federal nickel, so unlike the facts of the instant case, it doesn’t cost us a penny for the marshal to invoke fantasy figures in the sky.

    oh, and the type on this page is verrry small today.

    assistant devil's advocate (b5bf6d)

  7. Dunno what’s up with the font type. I think I may have unknowingly screwed something up by my cutting and pasting the quote into the body of the post. Help Patterico!

    Justin Levine (20f2b5)

  8. Maybe the font is a new cost-cutting, conservationist measure.

    DRJ (605076)

  9. In perl:


    (“clause” != “right”)


    Who the hell is the #@^%#bag who started all of this trying to ‘read between the lines’ of the Constitution?

    Kevin (3fd7a6)

  10. In the case of the Establishment Clause, a Catholic-hating former KuKluxKlansman, in Everson v. Board of Education, aided and abetted by the ACLU.

    nk (db0112)

  11. Can the SC completely put aside previous precedent? As in ‘We recognize the confusion, ignore all that, here’s the new guidelines?’

    Al (b624ac)

  12. Can the SC completely put aside previous precedent? As in ‘We recognize the confusion, ignore all that, here’s the new guidelines?’

    Absolutely. But where’s the fun in that?

    Daryl Herbert (4ecd4c)

  13. Al,

    The Supreme Court can overrule any prior case or precedent it wants but I doubt that will happen in this area. The notion that the law changes slowly is ingrained in our judicial system and is best illustrated by the principle of stare decisis. In addition, a decision on such an important and far-reaching area would require a near-unanimous opinion to be effective, and I don’t think that could happen with this Court.

    DRJ (605076)

  14. Thank you for the entertaining dialogue. It sounds like it could have been in a “Marx Brothers” courtroom scene (no disrespect intended).

    I am thinking that in this area of law, moreso than many others, personal opinion/perspective of the justices comes into play. Those who hear Jefferson’s echo “separation of church and state” want the separation to be so wide as to take religious belief out of public discussion. (Never mind ignoring the context of the concept and the source of the statement). Those who remember that the Constitution says “Congress shall make no law…” are content to see that no one religious group is granted a privileged status (including the de facto religion of secularism). Hence, depending on the specific judges at the time when a given case comes up the consensus tips one way or another. I imagine that is not what is meant to happen most of the time, as The Law and its precedents are there for all to see and read.

    I realize that the Declaration of Independence preceeded the first binding document, the Constitution, but if the King of England was not violating our Rights of Life, Liberty, and the Pursuit of Happiness we had no justification to fight for our freedom. That is, if there is/was no Creator to bestow those rights, then we couldn’t have received them.

    MD in Philly (3d3f72)

  15. “in addition, a decision on such an important and far-reaching area would require a near-unanimous opinion to be effective…”
    uh, no, drj. a decision on such an important and far-reaching area requires exactly five justices to be effective.
    “if there is/was no creator to bestow those rights, then we couldn’t have received them.”
    i expect a little more healthy skepticism from a doctor.

    assistant devil's advocate (8ad143)

  16. ADA,

    Not legal … effective. There may be one somewhere but I can’t recall any 5-4 decisions that were embraced as controlling authority on something as controversial as the establishment clause. The closest thing might be the death penalty cases prohibiting execution of minors and mentally impaired defendants, but even those continue to be criticized.

    DRJ (0c4ef8)

  17. How the hell did I make the font so small here? Argh!!!

    Justin Levine (1ce9b6)

  18. You did it in the post. I told you before: you gotta stop copying and pasting from Word. Compose the post online or in Notepad.

    Patterico (04465c)

  19. Oh, man, what a system, when the best laugh I’ve had in a month comes from Supreme Court arguments! Wow.

    Dan S (44073f)

  20. I forgot! I’m a bad guest blogger! 🙁

    Justin Levine (1ce9b6)

  21. Ah ha! I fixed the font size! Take that HTML biataches! Now feel free to comment away without going blind…

    Justin Levine (1ce9b6)

  22. Shouldn’t we as taxpayers have the right to challenge the courts’ wasting our money continuing to decide cases like this? All they seem to accomplish is more mischief, intolerance and confusion.

    AST (b318b5)

  23. In comment #15 ada said:

    “i expect a little more healthy skepticism from a doctor.”

    A doctor might be a little better suited to judge whether life is a gift or an accident.

    nk (db0112)

  24. Justin,

    I think this is the same case Jan Crawford Greenburg discussed at her blog, proving once again that great minds think alike.

    DRJ (0c4ef8)

  25. I don’t think the last link worked so here’s one to the blog comments. Is it just my ISP or is the internet cranky tonight?

    DRJ (0c4ef8)

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