I appreciate the invitation to blog, here at The Volokh Conspiracy, about a recent (short!) paper of mine, "Justice Breyer and the Establishment Clause." I set out the background and context for the paper in an earlier post. In this one, I summarize my account of what I regard as the first of the three distinctive features of Justice Breyer's judicial legacy with respect to the First Amendment's no-establishment rule.
Scholars and informed commentators know that the just-so story about the Supreme Court in which most cases are decided along ideological or partisan lines is misleading. That said, it cannot be denied that the Court's cases involving the Establishment Clause are regularly resolved by close votes that track familiar "liberal" and conservative" classifications.
Justice Breyer's record, though, is interesting. He was confirmed in the summer of 1994, replacing Justice Harry Blackmun, just a few weeks after the Court handed down a splintered 6-3 ruling in the Kiryas Joel case, holding that New York had violated the Establishment Clause by creating a new school district that tracked the boundaries of a village inhabited entirely by Satmar Hasidim. Just one year later, Justice Breyer revealed his reservations about inflexible judicial policing of a strict form of public secularism: In Capitol Square, he joined concurring opinions by Justices Sandra Day O'Connor and David Souter rejecting the claim that it unconstitutionally "endorsed" religion for an official body to permit a private group to display a cross during the Christmas season in Columbus, Ohio's Capitol Square. On the same day, he dissented, with Justice Souter and two other "liberal" justices, in Rosenberger, insisting that the Free Speech Clause did not require, and the Establishment Clause did not permit, the University of Virginia's Student Activities Fund to pay the printing expenses of a Christian newspaper.
