Howard Bashman has unearthed a copy of oral arguments from the Ten Commandment cases heard on Wednesday. Link.
UPDATE: Outside the Whale writes that the justices indicated their inclination towards “ceremonial deism.” Coined by former Yale Dean Walter Rostow, the term has mades its way into case law via Justice Brennan, and more recently Justice O’Conner in the Newdow case. For more discussion follow the link. My thoughts? If it helps the justices sort through the mess and come to some coherent discernible solution, I’m all for it. I am hesistant, to say the least, given that Establishment Clause jurisprudence suffers from no lack of tests. In fact my favorite Scalia line arises from this predicament.
[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it.
Absolutely a classic.