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Wednesday, March 02, 2005

The Ten Commandments Argument

It sounds as if oral arguments today in the Ten Commandments case were quite interesting, with Justice Scalia leading the way in deriding Erwin Chemerinsky's arguments against display of the Commandments. Interestingly, Justice Kennedy also appeared unsatisfied with the arguments against the Commandments, and mentioned that the States should retain an interest in promoting religion (he didn't seem so concerned with democracy and states' rights yesterday though). Both Scalia and Kennedy appeared unwilling to decide the case on the more narrow "Ten Commandments have secular, museum-like value" as well, though it seems as if Justice O'Connor might head that way. In the end, it appears that this case will produce a win for Texas, probably with at least 6 Justices on their side(maybe 5 if Rehnquist does not need to participate). But there is also the very real possibility that the lead opinion, perhaps by Scalia (with Thomas and Kennedy, perhaps Rehnquist too), will not garner more than a plurality, with Justices Breyer and O'Connor writing separately on more narrow grounds. In addition, look for a possible concurring opinion by Justice Thomas which is pretty extreme, arguing against the incorporation of the establishment clause as against the states. More to come...

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