This morning, after learning that the Supreme Court had deemed unconstitutional the display of the Ten Commandments inside two Kentucky courthouses but had upheld a similar display on the state capitol grounds in Texas, I surmised that some absurd hair-splitting had occurred. It turns to be worse than I thought.
As one might expect, eight of the nine Justices thought that the outcome in the two cases should be the same. Because one Justice disagreed, the cases had different outcomes. In this instance, the one Justice was Breyer. That's a bit of a surprise; usually it's O'Connor or Kennedy. It's refreshing to see both of them see marginalized for a change.
So what made the difference for Breyer? As Ed Whelan noted earlier today, it was the fact that no one had complained about the Texas display for 40 years, whereas the Kentucky displays had caused agitation from the beginning. Breyer finds this fact "determinative" (see pages 5-6 of his concurring opinion, which I'm not able to link to, but can be accessed through Whelan's post at NRO's Bench Memos).
So, according to Breyer, the Supreme Court is now justified in gauging public opinion on a purely Constitutional question.
In fact, rumor has it that they intend to setup a series of Supreme Court 1-800 numbers to assist them in the future, with opposing viewpoints, like 1-888-RELIGIONISEVIL vs. 1-888-WECANNOTREADPLAINENGLISH, 1-888-DIEBITCH vs. 1-888-LETTHEVEGETABLELIVE, 1-888-BUSHLIED vs. 1-888-BUSHJUSTPLAINSUCKS, and 1-888-WEHATETHEMILITARY vs. 1-888-NOTORTUREATGITMO.
To comment, call 1-888-WERULEANDDON'TYOUEVERFORGET IT.