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1/ A belated thread on American Legion v. American Humanist Association (the Peace Cross Case). I finally finished editing it for 2019 @RandyEBarnett/@JoshMBlackman supplement.
2/ After oral argument, I tweeted my biggest fear: Breyer would write the majority opinion, and make a further hash of establishment clause jurisprudence. That sort of happened.
3/ At every turn, J. Alito's majority opinion sought to mollify J. Breyer, and repeatedly cited his concurrence in Van Orden v. Perry--it's been there for a while, so don't tear it down! But we say nothing else about anything else.
4/ Alas, there are still not 5 votes to overrule Lemon. Thomas and Gorsuch would definitely jettison it. For that reason, they only concurred in the judgment. (Yes, I know they found no standing, but Gorsuch clearly signaled he would overrule the case). Same for Pt I of Kavanaugh
5/ But Alito and Roberts seem willing to accept Breyer's compromise. The majority killed Lemon in the limited context of old public displays of religion. But no more. I think Ginsburg accurately summarizes the holding in FN 2 of her dissent. 
6/ J. Breyer continues to wield a fairly significant power in the Establishment Clause. Recall he was the deciding vote in Van Orden and McCreary County, decided on the same day.
7/ Breyer does not get enough credit for his middle-of-the-road dogmatism. See also his split in Grutter and Gratz. I'd even add Heller to that list. Most lower courts channel his dissent, rather than the Scalia majority.
8/ Ultimately, I agree w/ J. Kavanaugh that Lemon cannot explain the five categories identified by the majority. Maybe in a future case, where Breyer's vote is no longer essential, the majority can kill Lemon altogether.
9/ Until then, lower court judges will continue to apply Lemon to reach whatever result they wish, not Town of Greece. J. Gorsuch is engaging in wishful thinking here.
10/ Though, J. Gorsuch is onto something with his "offended observer" standing position. He largely echoed Michael McConnell's brief for @BECKETlaw supremecourt.gov/DocketPDF/17/1… - Standing has always been an anomaly in the Establishment Clause context (putting aside Flast)
11/ I raised this argument in the travel ban context: there is no Article III injury based on a policy that stigmatizes a religion. lawfareblog.com/analysis-irap-…
12/ #SCOTUS did not need to rely on this notion of standing in Trump v. Hawaii because other Plaintiffs had concrete injuries--family separation. But J. Gorsuch casts doubt on the entire area of standing in the Establishment Clause context.
13/ RBG says Gorsuch's standing opinion is "startling." She's right. It would call into question many old decisions. So be it. Gorsuch has already shown a willingness to question any precedent. He is Thomas's partner on this front.
14/ Relatedly, I noted the Court's flimsy approach to standing in the Establishment Clause context bolsters the case for standing in the new Obamacare challenge. reason.com/2018/12/17/und…
15/ But if "offended" people do not have standing, Ginsburg asks, how could anyone stop a public religious display? To this, Gorsuch responds, turn to the Democratic process: "an 'offended viewer' may 'avert his eyes,' or pursue a political solution."
16/ Far too many law students, and lawyers, forget that the political process always exists to get rid of bad stuff. I always remind my students this avenue exists--not all problems must be resolved in the courts.
17/ The public tenor towards religious displays has changed greatly over the last century. Indeed, the tenor towards Confederate displays has changed radically over the past decade. With social persuasion, change is possible.
18/ Part II of J. Kavanaugh's dissent sounded a similar note. He cited Judge Sutton's book, and suggested that people can use the democratic process to provide greater separation between church and state. For example, by amending the state Constitution.
19/ Kavanaugh made an identical point during oral argument:
20/ In Part II, J. Kavanaugh wrote he has "deep respect" for the Plaintiffs and "Great respect" for Jewish war veterans. He recognized their "sense of stress and alienation." He noted the "clash of genuine and important interests"
21/ This solo concurrence reminded me very much of J. Kennedy's solo concurrences. Show empathy for both sides, note that the case presents a difficult clash of competing values, and hope that the political solution can remedy any problems.
22/ Why write Part II at all? There is no actual legal doctrine developed. This can't be cited in any judicial decision. Who is he talking to? Part II merely signals his virtues to his colleagues and the public. It is very Kennedy-esque.
23/ Part II of Kavanaugh's American Legion concurrence reminds me of his solo dissent from the stay application in June v. Gee (Louisiana abortion case) supremecourt.gov/opinions/18pdf…
24/ Kavanaugh wrote a solo, four page opinion. In the last graf, he flagged the possibility that the Plaintiffs may be able to bring "a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period."
25/ Generally, the shadow docket works best when it remains in the shadow. Why write anything at all? Who is he talking to? Counsel for the Petitioners? They don't need advice. This is the sort of thing J. Kennedy would write.
26/ One other data point. In the Murphy saga (Alabama death penalty case), J. Kavanaugh wrote a second statement on the same case, joined by Roberts, "in light of" Alito's dissent. Why even write this second statement? Less is more.
27/ One final note on the American Legion case. FN 3 of Thomas's concurrence comes very close to calling Justices Black and Douglas anti-Catholic bigots.
28/ Overall, a fascinating case. We will have to wait and see what happens when the next Establishment Clause case arrives to the Court, that does not involve a really old memorial.
29/ @threadreaderapp unroll.
