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1/ Thread on American Legion v. American Humanist Association oral arguments (Bladensburg cross case) #SCOTUS supremecourt.gov/oral_arguments…
2/ Ginsburg: Jewish soldiers said cross violated Establishment Clause, was "hurtful" and "wrong." Katyal replied, "people disagree[ing] with something" does not by itself violate the Establishment Clause. 
3/ Correction: tweet #2 should be Kavanaugh, not Ginsburg.
4/ Mike Carvin framed the "coercion" test as a test that prohibits proselytizing. The Justices struggled with this approach.
5/ J. Gorsuch appears ready to jettison Lemon altogether--he called it the "dog's breakfast." In McCreary County, Justice Souter used another dog analogy to describe Lemon's purpose prong. (From my article: This Lemon Comes as a Lemon: papers.ssrn.com/sol3/papers.cf…)
6/ A mark of Justice Scalia's vitality: he still pops up at oral arguments. Have anyone ever asked what Justice Kennedy would think since his retirement? Justice Stevens? Justice Souter? Their opinions were important only so long as they were on the bench. Justice Scalia endures
7/ The upshot of Carvin's argument: the various Establishment Clause tests are very different to reconcile, and cases with similar facts reach different results based on what decade they were decided.
8/ J. Sotomayor asked Deputy SG Wall about the "reasonable observer" test. He pivoted back to the Town of Greece test.
9/ The reference to the "45-foot star of David" reminded me of "Jews in Space" from Mel Brooks's "History of the World Part I"
10/ J. Gorsuch raised the question of how someone would have standing to challenge a religious display because it is "too loud" or "offensive." I've cited Van Orden as a possible justification for standing in new Obamacare case. reason.com/volokh/2018/12…
11/ Justice Breyer did not say a word until p. 62 of the transcript, halfway through respondent's argument. (His Van Orden concurrence was invoked a few times before). He must be struggling with this case, like he did in Van Orden. He does not want memorials torn down.
12/ My biggest fear: CJ Roberts will let J. Breyer write the majority opinion to show unanimity and consensus. That opinion will make an even bigger hash of Establishment Clause jurisprudence. (Think of Comstock.) Toss out the dog's breakfast and let J. Breyer concur in judgment.
13/ Follow J. Gorusch's lead, and clarify the issue for the lower courts. (Ditto J. Kavanaugh)
14/ J. Kavanaugh also gave a shout-out to J. Sutton: the state can provide greater protection of liberty.
15/ Neal Katyal told Gorsuch that this case is not the right case to overrule Lemon. "Wait for a case in which it has some bite." (Neal gave a similar answer in Trump v. Hawaii concerning nationwide injunctions.)
16/ J. Kavanaugh asked what would happen if the Court found the MD cross violated Lemon. Katyal demurred: "take a look at Lemon." + Laughter.
17/ Maryland will win, I do not know how. Worst case scenario: J. Breyer writes an opinion along the lines J. Alito joked about. JGR. Don't do it. /End.
