Kennedy: The Buono-CLS Nexus?
Justice Kennedy is the only member of the Court yet to write an opinion from the October sitting. As of today, Salazar v. Buono remains the only case not yet decided from the October sitting.
The delay in Buono augurs a bitter split with lots of footnotes flying around. From the oral argument transcript, let me go out on a limb and say that Kennedy sided with the liberals on this one. Perhaps the conservatives–or, at least Scalia and Alito, by the write-ups–hoped the Court would rule more broadly than the standing issue that the rest of the justices ultimately focused upon. Or maybe the decision’s delay means that in Kennedy’s hands, the opinion did address the broader merits of whether Congress violated the Establishment Clause by transferring its ownership of a desert cross on government lands to a private entity so to avoid First Amendment suits.
Either way, perhaps the justices’ post-argument positioning triggered the Court’s December cert. grant to Christian Legal Society v. Martinez, which the justices had sat on since the spring. Wanting to make up for one (still totally conjectural) church-state loss with Buono, the conservative bloc may have sensed in CLS a big, broad win for the Free Exercise Clause.
The Court heard CLS on Monday. The justices fell to their familiar positions, but the conservatives’ (still totally speculative) gamble may have been for naught: Justice Kennedy didn’t seem at all convinced that the case’s facts had been sufficiently clarified to garner a ruling on the merits.
In the coming weeks and months, we’ll get the decisions. But whether I’m spectacularly right or wrong on what when down behind the curtain may have to wait until Justice Stevens’s papers go public. And for the sake of sating speculation, let’s hope Stevens will mimic Marshall and Blackmun‘s speedy release of their papers rather than follow Souter down the fifty-year memory hole.