Chip Lupu writes:
> I think we have to go back to Prof. Finkelman's "realist"
> question: Justice Scalia has (both before and after Smith)
> voted to uphold Free Exercise claims (Frazee, Lukumi, Locke
> v. Davey), but I don't believe he has EVER voted against the
> government in an Establishment Clause case (including Edwards
> v. Aguillard, and Santa Fe Ind. School District v. Doe, which
> are probably the two toughest Est CL cases in which to side
> with the government during his tenure on the Court.) So will
> Justice Scalia ever see an Establishment Clause claim that he
> likes? Or does he just find reasons to vote against them all?
I take it that Justice Scalia simply has a substantively very
narrow view of the Establishment Clause, such as (for instance) Justices
Stevens, Souter, Ginsburg, and Breyer have a substantively very narrow
view of the judicially enforceable article I section 8 constraints on
fedearl power. I don't see why we should cast this as "[the Justices]
find reasons to vote against [all or nearly all the claims]" -- they
*have* reasons, flowing from their understanding of the substantive
scope of the constitutional right.
Likewise, Justice Stevens has generally taken a very broad view
of the Establishment Clause; he has occasionally voted to reject an
Establishment Clause claim that has reached the Court, but quite rarely
(and the only cases that come to mind, at least recently, have been
unanimous or nearly-unanimous decisions, such as Witters, Widmar, and
Lamb's Chapel). That doesn't mean that "he just finds reasons to vote
[for] them all" -- only that his understanding of the breadth of the
Establishment Clause is such a reason.
Eugene
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