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XI. Thou Shalt Not Posteth These Commandments on The Grounds of U.S. Public Buildings (Sometimes)

How Judges Reach Conclusions in Ambiguous Cases

Thomas RowlandPSC 3192W

14 December 2016

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Introduction

The Supreme Court- the most revered, yet misunderstood, branch of the United States

Federal Government, constantly seeks to resolve the most complicated societal questions that

Americans can throw at it. One of the most common reasons for why the American public

respects The Court as much as it does is because of the perception that the Justices are above the

political fray due to them basing their decisions on “the law-” although that expression is very

rarely explained, instead of politics. To assume that Justices always make decisions solely based

on the law would simultaneously suggest that the law is incredibly specific and can be applied to

every case, but there cannot realistically be a statute dictating a remedy for every possible legal

question that can cross a judge’s desk. This means, then, that there are gaps between what the

law says and what Justices1 ultimately decide in a case; how Justices reach these decisions is the

question being debated. Some argue that Justices may, or should, use a mechanistic system of

strictly adhering to precedent and basing their current holdings solely on past similar decisions,

leaving little room for the insertion of personal biases; others argue that Justices do, or should,

accept that they are “occasional legislators” and therefore use a more policy-based approach to

determine what remedy should be handed down. Very few would seriously argue that partisan

politics are the main driving factor behind judicial decision-making; while that does not mean

that personal political opinions cannot play a small role in pushing a Justice’s leanings on a

particular case, it does not mean that many believe that judicial decision-making ends with

political leanings.

To examine this debate, I will look at a series of First Amendment Supreme Court cases

regarding the display of potentially religious artifacts, such as the Ten Commandments, on the

grounds of public buildings- specifically, state courthouses. After first observing how potential

1 From here until the end, I am going to use the term “Justice” in this paper even though what I am arguing can also apply to an appellate judge in the U.S. system as well. The reasoning is because the case matter that I discuss later will be from the United States Supreme Court.

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policy regarding the issue was created in the case of Lemon v. Kurtzman, I will then investigate

the cases of McCreary V. ACLU and Van Orden v. Perry to see how the Supreme Court Justices

considered policy ramifications when they reached their rulings.

In addition to the application of the cases, I will look at the arguments of Jerome Frank

and Richard Posner, two men with substantial experience in the legal field. Both of them will

argue that Justices are occasional legislators who sometimes create policy through their rulings,

but they will differ on their sentiments towards this notion; Frank will seem to favor a more

mechanistic and less personal approach, while Posner will argue in favor of a more “pragmatist”

approach.

I will argue that, while some believe that the outside preferences and biases that

influence Justices are a bad thing, Posner argues correctly that these biases should be trusted

because a Justice’s intuition is one derived from expertise and experience. Additionally, Justices

fill in legal gaps with a pragmatist mindset; some argue that this is done haphazardly, but

Justices are very careful in thinking about how their decisions affect policy, as the First

Amendment cases will show. These “biases” are justified because of their pursuance of

efficiency.

Posner- Judicial Pragmatism

Richard Posner largely takes an economical view for legal interpretation; he mainly

targets the idea that a judiciary follows a mechanistic system to find conclusions for their cases

and states that: “even legal thinkers who believe passionately that judges should be rule appliers

and unbiased fact finders and nothing more do not believe that that’s how all or even most

American judges behave all the time2.” According to Posner, there is no such thing as an

American Justice who is one hundred percent tied to the law with no ability to insert his own

policy preferences into a case. For this reason, all Justices in the American legal system are 2 Richard Posner, How Judges Think (Cambridge: Harvard University Press, 2008), 5.

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“occasional legislators3.” The main theory supporting mechanistic interpretation is dubbed by

Posner as “legalism,” and it can be defined with the following explanation:

Legalists decide by applying preexisting rules or, in some versions of legalism, by employing allegedly distinctive modes of legal reasoning by analogy. They do not legislate, do not exercise discretion other than in ministerial matters (such as scheduling), have no truck with policy, and do not look outside conventional legal texts-mainly statutes, constitutional provisions, and precedents-for guidance in deciding new cases. For legalists, the law is an autonomous domain of knowledge and techniques4.

Legalism, as Posner describes it, keeps the scope of judicial discretion narrow in an effort to

block out the personal biases of a Justice. Describing it as “an autonomous domain of knowledge

and techniques,” Posner is referring to the fact that legalism only focuses on the law; no outsides

disciplines may be used, including economics and philosophy. This belief assumes that the law is

self-sufficient in its ability to sort out legal disputes.

The issue of the gap between the statute and the facts of a case would be exacerbated by

the legalist method because legalism appears to completely ignore the existence of this problem.

Posner argues that the freedom to insert one’s own interpretation into a ruling is inevitable and

involuntary because of the law’s vagueness5. While Posner says that there are certain types of

cases that do not need independent interpretation from the sitting judiciaries, such as torts, most

cases do have some sort of discrepancy between the statute and the facts of the case; it is in these

cases where Justices “have an open area in which [they] have decisional discretion- a blank slate

on which to inscribe their decisions-rather than be compelled to a particular decision by the

law6.” In cases where Justices have this latitude is where the debate surrounding how decisions

are made in a courtroom comes into play. Posner argues that United States Justices act as

pragmatists here7; pragmatist Justices are constrained from acting in a “free-for-all” environment,

3 Posner, Judges, 5.4 Ibid, 8.5 Ibid, 9.6 Ibid.7 Posner, Judges, 13.

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though, because they are constrained by the need to be impartial and to still hold the written

words of law in high regard8. Posner’s best defines “pragmatism” as:

The box [constraints on interpretation] is not so small that it precludes his being a political judge, at least in a non-partisan sense. But he need not be one unless ‘political’ is given the broadest of its possible meanings […] in which the ‘political’ is anything that has the slightest whiff of concern for policy. A pragmatic judge assesses the consequences of his judicial decision for their bearing on sound public policy as he conceives it. But it need not be chosen by him on political grounds as normally understood9.

It is important that Justices consider the policy ramifications of their rulings because an

inefficient policy can lead to further confusion, instead of the clarification that the courts are

supposed to supply.

Legalists, on the other hand, assume that decisions are solely determined by “the law”

and nothing else10. To a legalist “the law” consists of “a body of preexisting rules found stated in

canonical legal materials, such as constitutional and statutory texts and previous decisions of the

same or a higher court or derivable from these materials by logical operations11.” The process of

conducting “logical operations” is done through the use of syllogisms. Syllogisms consist of a

major and minor premise and a conclusion. A rudimentary example of a syllogism would be “the

weather station says it will rain on Thursday (the major premise); tomorrow is Thursday (the

minor premise); therefore, the weather station believes it will rain tomorrow (the conclusion).” In

a court case, the major premise is the rule of law or precedent; the facts of the case form the

minor premise, and the decision of the court is the conclusion12. While legalists hold this process

in high regard, Posner criticizes it by arguing that the precedent, specifically, had to originate

somewhere; there is not some long endless stream of precedent that that extends into the abyss.

At some point, there had to have been a Justice filling in a legal gap based on his own

8 Ibid. 9 Ibid.10 Ibid, 41. 11 Ibid. 12 Ibid.

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interpretation. To Posner, there is no reason to assume that this original ruling was not influenced

by the Justice’s ideological desire to create efficient policy13. A further critique Posner has of a

strict methodological approach to following precedent is that Justices rarely follow stare decisis

completely or overturn it if they do not agree; this is because “their preference is for

distinguishing them (previous decisions) to death rather than explicitly overruling them in order

to preserve the appearance of the law’s continuity and stability14.” For this reason, the United

States Supreme Court’s repertoire is completely polluted with random cases that can be revived

because of never being fully overruled15. While those who prefer interpretative gaps to be closed

believe that strictly adhering to precedent is the best way to leave the biases of Justices out of

cases, Posner argues that this stance is impractical because of the metaphysical questions

surrounding the origin of precedent and the fact that Justices already do not consider themselves

strictly bound by stare decisis.

The lack of a strict and robotic adherence to precedent means that Posner is suggesting

that Justices can, and do, often reach their own conclusions independent from, yet still guided by,

“the law.” Such a phenomenon, however, logically suggests that there is an opening through

which Justices can insert their own opinions sponsored by their personal biases. Posner does not

deny this, and he even explains that these biases can come from past experiences because:

“experience, like training, can inculcate values that influence Judicial behavior16.” This is an

inevitable thing to happen when Justices carry out their jobs. It should not, however be rejected,

but instead embraced. A Justice’s intuition “plays a major role in judicial as in most decision

making17.” This intuition allows quick judgement though a subconscious cost-benefit analysis of

various elements of the law, and it is derived from an ability of a Justice to reach into a

13 Posner, Judges, 44. 14 Ibid, 45. 15 Ibid, 184. 16 Ibid, 95.17 Posner, Judges, 107.

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subliminal state of knowledge from education and, most importantly, experience18. Like in Mill’s

utilitarian theory, where not every decision requires a calculus of costs and benefits, a Justice

need not walk through every logical step to reach his or her conclusion. The experience Justices

have, whether it be upbringing or training, becomes a natural part of their perception of the

world, and as much as common people make intuitive decisions throughout the course of

everyday life, so do Justices when executing their profession. Posner believes that “the more

experienced the judge, the more confident he is apt to repose to his intuitive reactions19.” An

important point of consideration here is how well-trained most U.S. Justices are, having typically

served on judiciaries for a long time seeing many different cases20. While this idea tends to

infuriate lawyers because it could mean that cases are more decided by a Justice’s personal

thought process more than by the arguments and facts of a specific case, it usually is done in

pursuance of efficiency, and it is something that cannot be helped because Justice’s usually

subconsciously decide whether to use an intuitive or fully-conscious problem solving strategy-

either of which is just as effective because of the highly-qualified nature of the Justice21. A

Justice who systematically works through every logical step in pursuance of a sound ruling is

unnecessarily being inefficient with his or her time, much like how a taxi driver would not

consciously think about every movement required to maneuver a car or how a banker does not

need to think of every logistical step that is taken to fully insure every clients’ bank account.

Pragmatists can sometimes reason by analogy, like legalists always do through

syllogisms, however, it must be done in a more efficient way that does not merely appear as a

convenient substitute for overruling a case. Posner prefaces this by explaining the caution that

needs to be taken because, prima facie, reasoning by analogy tends to downplay the actual size

18 Ibid. 19 Ibid, 108. 20 Ibid, 107. 21 Ibid.

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of the legal gap and thus results in unintelligent rulings that do not fully answer anything relevant

to the case22. The use of distinguishing cases can also be dangerous because it is commonly used

only as a tool to limit the legal scope of a case, thus changing the meaning from finding

similarities to finding differences23. The logical use of applying legal patterns and ideas to a case,

however, is incredibly important, as pattern recognition is a common part of the human mind and

critical in the legal field. It is nonsense, however, to say that one case most clearly “resembles”

the one at hand without exploring policy ramifications; the only exception to this rule is if the

cases are nearly identical24. Justices should not decide how to handle a current fact pattern by

looking at a past case that had a few, but albeit irrelevant, similarities because doing so can

create adverse policy issues; for example, this practice may allow a Justice to inadvertently apply

physics into a case where physics is not at all relevant. If Justices reason by analogy by focusing

on policy outcomes rather than fact patterns, they will be the most efficient in their rulings, but

the practice should be used carefully because of its inherent ability to skew policy analysis.

Being the cornerstone of pragmatism, policy analysis is the main consideration a Justice

should have in a case. As it was discussed with reasoning by analogy, policy ramifications are

the main elements that fully align the matter at hand with another line of precedents25. The ideal

pragmatist Justice, therefore, is a loose-constructionist- the antithesis of the strict-constructionist

who views cases through the narrowest possible lens26. Loose constructionists want “the

enactments that he interprets to have sensible consequences, though not necessarily the

consequences he would prefer- he is a constrained pragmatist, though he thinks that sensible

consequences are usually what legislators want as well27.” Posner suggests that pragmatist

22 Posner, Judges, 181. 23 Ibid, 182. 24 Ibid, 183. 25 Ibid, 187.26 Posner, Judges, 193. 27 Ibid, 194.

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Justices almost have a symbiotic relationship with the legislature, working to help correct the

mistakes and omissions left in legislation28. An additional element of pragmatism is that:

“although [it] rarely generates enough information to enable a decision that produces a social

optimum, often it generates an approximation that is good enough for the law’s purpose29.”

Justices are not looking to make everyone feel content, nor are they there to be social crusaders

on behalf of some minority; they are simply trying to fix the policy pursuits of lawmakers and

create an efficient set of laws in society.

As Posner suggests, it is impossible to rule out the fact that the personal politics and

biases may influence a Justices decision, but such a phenomenon should not be feared because it

is largely drowned out by the intuitive reasoning of a highly-qualified Justice who is primarily

driven by a desire to create effective policy. The mechanistic interpretation style advocated by

legalists is an ineffective method both because Justices do not follow it and it sets unrealistic

standards for the completeness of the law in its application to particular cases. Posner says that

most American Justices are pragmatists, and while they may use a regimented legal system in a

very select few cases, they often have a great deal of latitude in reaching a decision. As will be

seen in the First Amendment cases later, the practice of correcting policy becomes very useful.

Frank- Psychoanalytical Adjudication

Jerome Frank, a New Deal Judge, has many similar sentiments to Posner, but tends to

suggest more strongly that limiting the room for a Justice’s interpretation in a case is appropriate

and necessary. Although much of his theory has been discounted because of the close parallels

28 Ibid. 29 Ibid, 241.

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he draws to Freudian concepts of psychoanalysis, his focus on the idea of legal gaps makes him

relevant to discuss here.

Like Posner, Frank acknowledges the problems presented by the gap between the law and

a specific case; he takes it a step further than Posner and specifically mentions the constant

changes that occur to formal statutes*, stating: “it is uncertain, indefinite, [and] subject to

incalculable changes30.” Frank also agrees that Justices make subconscious decisions based on

their intuition, saying that Justices are often unaware of their own subjective reasoning, but he

takes a strong psychoanalytical perspective on the issue. For example, his main premise is that

humans “persuade [them]selves that [their] lives are governed by reason31.” This veil of naivete

leads people, specifically Justices, to be unwilling to admit the fact that their decisions are

controlled by personal biases32. Therefore, Frank argues that people often reach their final

conclusion first and work backwards to justify it33. This, therefore, means that lawyers fight

against the intuition of a Justice; Frank calls attorneys “professional rationalizers” who try to

convince the Justice to change his or her opinion34. Despite taking a more psychological

approach to adjudicating, Frank and Posner are of the same opinion that intuition plays a strong

role in adjudicating.

A second point that Frank and Posner agree on is the legislative status of Justices. Frank

also agrees that Justices create law and policy35, and he also critiques legalistic ideas without

specifically referring to the ideology by the name used by Posnert. The most direct challenge

Frank has against a legalist-esc type of interpretative style is his intense condemnation of the use ** While Posner does not specifically speak about the changing nature of statutory law, it is something that is easily inferred to exist within the context of his writing. His lack of directly mentioning it should count against him.30 Jerome Frank, Law and the Modern Mind (New Brunswick: Transaction Publishers, 2009), 5.

31 Frank, Law, 32.32 Ibid. 33 Ibid, 31.34 Ibid.35 Frank, Law, 36. tt Posner’s book was written more than sixty years after the death of Jerome Frank.

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of syllogisms; when using them, Justices tend to neglect to establish even the major and minor

premise and jump right to the conclusion while still claiming that the case matter is similar to

precedent36. While this can be attributed to the difficult job of adjudicating, it opens the door to

the dangers of subjective views altering the finding of the case without any rhyme or reason37.

Frank warns that: “court[s] can decide one way or the other and in either case can make its

reasoning appear equally flawless38.” This is incredibly dangerous practice because, while it may

still present the illusion that the court is being internally consistent and stable, it encourages

Justices to come to decisions on their own whims. For this reason, Frank is not what Posner

would refer to as a legalist. However, there is still a large difference in the theories of the two;

although they have been reaching the same conclusions thus far (despite differing premises),

there is one variance that places Posner’s theory as superior to that of Frank’s.

The difference is the same issue that has been the cancer of Frank’s theory in

contemporary academia: psychoanalysis. The common denominator in all of Frank’s previous

stances that have ultimately proven to be compatible with those of Posner is his adherence to the

study of mental processes, similar to that of Sigmund Freud. Therefore, Frank’s ideas lost

relevance with the fall from grace of Freudian hypotheses. For this reason, most people do not

even consider Frank’s theory when attempting to explain how judicial decision making occurs.

The reason Frank is discussed here, though, is because of his parallels with Posner; for that

reason, the psychoanalytical elements of his argument will be ignored as much as that they can

be, and his raw premises will be what are largely focused on.

Frank argues that Justices, like everyone, have biases and prejudices, and these prejudices

produce hunches. Whatever produces a Justice’s hunches, in Franks opinion, is what makes the

36 Frank, Law, 72. 37 Ibid. 38 Ibid.

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law39. Some of these biases could be political, economic, and racial, and they often can cut into a

Justice’s ability to hear a case objectively40. The presence of any sort of mental trigger in a case

can cause a Justice to be swayed towards, or away from, one of the parties. For example: “Those

memories of a judge, while he is listening to a witness with such a twang or cough or gesture,

may affect the judge’s initial hearing of, or subsequent recollection of, what the witness said or

the weight or credibility which the judge will attach to the witness’s testimony41.” While this

quote unfortunately toes the line with psychoanalysis to an unfortunate degree for discussion in

contemporary times, it is a very important crux within the overall argument of Frank. He agrees

with Posner’s idea of intuition in that it exists, but because Justices make subconscious

determinations about how they make a decision in a case, it is inevitable that these biases will

come into play. Posner says that this is a not something to fear, but Frank is very apprehensive of

this idea. He argues that “If you ask him [the judge] how he reached a conclusion, he is unable to

recover his own reasoning process, but instead invents an artificial account which will somehow

lead to a result42.” This is what Frank argues to occur when Justices write their opinions; it is

nothing but the rationalization of a predetermined conclusion that is separate from the facts of

any case. For this reason especially, the discretionary capacities of a Justice must be limited, and

this is to be done by acknowledging the inevitable existence of personal biases43. A Justice who

can recognize his or her own biases and fully understands the power of the office he or she holds

is “the best guarantee of Justice44.” To create such an environment, Frank does calls for

psychological training for Justices, not to remove emotions, but to balance them and mitigate the

effects of prejudices; such training is to be done at the institutional level, specifically in law

39 Frank, Law, 112. 40 Ibid, 114. 41 Ibid, 115. 42 Ibid, 125. 43 Frank, Law, 148. 44 Ibid.

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schools45. One can see the Freudian elements here that helped lead to the overall demise of this

theory, but after sifting through that element, one can see that Frank really is in favor of limiting

the scope of a Justice’s ability to make his own judgement calls because he does not trust that a

Justice can still be impartial with his inherent prejudices.

Beyond the obvious fact of Frank passing away while Posner was still an undergraduate

student at Yale and the term “legalism” being decades away from being used in the way Posner

will have eventually portrayed it, Frank is not a legalist. He opposes the use of syllogisms to tie a

case to precedent, and he acknowledges the legal gap; it is difficult to have those two stances and

still fall into the category of a “legalist.” However, he is still more in favor of creating a narrower

system of interpretation where Justices are not as free to make up their own decisions based on

instinct in determining a case. While legalism’s main instrument is strict adherence to “the law,”

Frank’s mechanism is strict adherence to a very narrow method of thinking and viewing of cases

in a way that is independent of intuition. This theory, however, is unworkable mainly because it

advocates an unrealistic system; people all have different experiences and upbringings, and while

it may sound easy to institutionally suppress these emotions, it is inevitable that they will come

out at different points in different cases. It is important to trust that Justices’ intuitions are still

being impartial to the case because, in the American legal system, pragmatism is the only way to

appropriately, and realistically fill the legal gap; there must be some degree of flexibility. To not

have that would require very specific statutes that intend to reach into every possible section of

human activity. That being said, it would be interesting to hear how, or if, Frank would have

revised his argument in a twenty-first century legal context.

A Third Potential Theory- Legitimacy of the Judiciary

There is a third idea that Posner and Frank only briefly mention that deserves more

attention for this discussion; it is the idea that Justices make decisions not just for policy reasons 45 Ibid, 153.

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alone, but to increase the legitimacy of the courts. While I maintain my argument that Posner’s

theory is the most accurate, I do wish to discuss the merits of this theory as well and question

why it was not a larger part of either of their discussions.

Unlike the other branches of the United States Government, the Supreme Court has no

real enforcement mechanism, thus leaving it at the mercy of the other branches and the states to

execute its rulings. As of late, most Supreme Court rulings have been respected and enforced, but

historically this had not always been the case and automatic governmental support had often

been considered a luxury by those on the bench. Gibson and Caldeira speak about the importance

of legitimacy for this purpose; according to them the Supreme Court depends on appearing

legitimate in order to be effective, more so than the other branches46. The two therefore seek to

answer empirically how courts maintain their legitimacy when they have such a specialized role

in society and can give rulings that divide the nation politically. Gibson and Caldeira support the

idea that Justices are occasional legislators, and they fall generally in line with the idea that

Justices focus on policy ramifications when deciding on a case. They differ slightly from being

full subscribers to pragmatism, however, because they hypothesize that legitimacy comes from

public support, meaning that Justices seek to release policy that is pleasing to the public more

than they release policies that they feel are efficient47. Gibson and Caldeira found through their

research that the United States Supreme Court’s wealth of public support is very stable, but it has

been changed by certain policy outputs; for example, African Americans were more highly

supportive of the Court in the 1960’s in the wake of Brown v. Board of Education48. However,

they do argue that there are two different types of support for a country’s high court. The first

type is called “specific support” and it is the support, or lack thereof, for a specific ruling handed

46 James L. Gibson, Gregory A. Caldeira, and Venessa A. Baird, “On the Legitimacy of National High Courts,” American Political Science Review 92, No. 2 (1998): 343-358, doi:10.2307/2585668. (Accessed November 26, 2016), 343.47 Gibson, Legitimacy, 344.48 Ibid.

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down49. The second is called “diffuse support” and it is the support for the institution as a whole

that builds over time50. Diffuse support is important because it can help cushion a court if it

hands out too many unpopular decisions51. To build this type of support, Gibson and Caldeira

determine that longevity is the most important trait to have52; it is difficult for a young court to

appear as having enough power to be able to make important national legal decisions. While

specific support can be the most volatile of the two types, there is no common correlation

between it and diffuse support in younger courts; the two can be directly related, inversely

related, or not related at all53. This signifies that there is no set rule for how strong the influence

of specific support can be, but it has been determined that if there is too much consistent negative

specific support, the long-term support and legitimacy of the court can be damaged. In a new

court, this can be fatal; however, the correlation between specific and diffuse support is only

more unified in older institutions, such as the U.S. Supreme Court54. This would therefore

suggest that Justices in the United States Supreme Court might be more concerned with how the

public perceives them through their rulings.

A second study by the two, however, reveals that although the U.S. Supreme Court, as an

older institution, may generally be more concerned with its specific support because of its

correlation with diffuse support, it is uniquely impervious to having too much overall negative

support55. This can largely be attributed to the fact that it has established very longstanding

popularity throughout the years of its existence, but Gibson and Caldeira mainly attribute this to

49 Ibid. 50 Ibid, 344-345. 51 Ibid, 344. 52 Ibid, 355. 53 Ibid, 352. 54 Ibid, 355. 55 James L. Gibson, Gregory A. Caldeira, and Lester Kenyatta Spence, “Measuring Attitudes Toward the United States Supreme Court,” American Journal of Political Science 47, No. 2 (2003): 354-367, doi: 10.2307/3186144. (Accessed November 26, 2016), 359.

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the fact that the Court has generally been releasing opinions that the pubic tends to agree with

since the turn of the century56. For instance, the Court’s ruling on a case that ended up restricting

anti-abortion activists earned 77.3 percent public approval; a ruling in a case blocking

homosexuals from the Boy Scouts received 55 percent approval57. The outlier, however, was a

case in which the court banned public prayer at public high school football games; this ruling had

only 24.4 percent support and 71.4 percent disapproval58. This information can be extrapolated to

show that the majority of The Court’s landmark decisions tend to be in the public’s favor, with

only a few exceptions.

As it can be seen, the research on this theory is inconclusive, but it is a legitimate

hypothesis nonetheless. Posner only lightly touches upon the idea of institutional legitimacy,

saying that courts need to appear as internally consistent in order to appear legitimate and

politically effective59, but he does not speak about concern for public support to any significant

degree. While the majority of this theory is compatible with pragmatism because of its

acceptance of Justices being policy-driven, its explanation for why this is so is largely contrasted

with what Posner argues. While it does not change the main argument of this paper- pragmatism

is still the most effective theory, it does pose an interesting question for future debate

surrounding the idea of whether policy efficiency or popularity is more important.

The Ten Commandment Cases

The Ten Commandment cases: Van Orden v. Perry and McCreary v. ACLU, are

discussed here because the nature of these cases strongly represents the legal gap. The First

Amendment of the Constitution’s Establishment Clause states: “Congress shall make no law

respecting the establishment of religion…60” However, ever since the Constitution’s passage,

56 Gibson, Measuring, 369. 57 Ibid. 58 Ibid, 359. 59 Posner, Judges, 276. 60 U.S. Const. Amend. I.

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United States currency has contained the expression “In God We Trust;” many American

monuments make references to a monotheistic deity, presidential speeches have included

references to a Judeo-Christian God, the military pays for chaplains for its soldiers, and many

other government-related activities seem to dance around the idea of “establishing a religion.”

Lawsuits in this respect are common, but it is difficult to make a strong legal determination when

all the law says regarding the topic is what is stated in the First Amendment. Therefore, Justices

have had to constantly make policies and various legal doctrines in order to attempt at

establishing a framework to determine what Constitutes the “establishment of religion,” and

bridge the gap between what is written and what various parties raise complaints about.

Contemporary history of this issue arguably begins with Lemon v. Kurtzman in 1971,

which established the Lemon test for determining what is permissible state action in relation to

religion. This was the reigning legal doctrine until it gradually was replaced by other tests, such

as Sandra Day O’Connor’s “Endorsement Test61.” Lemon had essentially been granted an

unofficial moratorium until its resurrection in McCreary on June 27th, 2005, when the Supreme

Court released two rulings in two separate cases surrounding the public display of the Ten

Commandments on public lands. The two decisions, released within minutes of each other, held

seemingly contradictory opinions: McCreary ruled 5-4 that two county courthouses in Kentucky

may not display the Ten Commandments in their main building; Van Orden however, in a 5-4

ruling, held that a display of the Ten Commandments on the grounds of the Texas State Capitol

is permissible. At first glance, this seems to be clear evidence that Justices make rulings based on

their whims, however, upon closer examination, one can see that the Justices crafted careful

decisions to ensure that sound policy surrounding religious displays was being created.

61 Jay Sekulow and Francis Manion, “The Supreme Court and the Ten Commandments: Compounding The Establishment Clause Confusion,” William and Mary Bill of Rights Journal 15, no. 33 (2006): 33-50, http:heinonline.org.proxygw.wrlc.org/HOL/Page?handle=hein.journals/wmbrts14&collection=journals&page=33. (Accessed November 23, 2016), 26.

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Lemon

Before going into the specificities of the Ten Commandment cases, it is important to talk

about the precedent created in Lemon. The Lemon Test is a legal doctrine created during Chief

Justice Burger’s majority opinion that serves as a policy director for states seeking to create

legislation regarding potentially religious topics. In this case, two states, Rhode Island and

Pennsylvania, created programs related to funding assistance for private schools. In Rhode

Island, a fifteen percent salary supplement was offered by the state to teachers in private schools

with a certain level of financial troubles62. A three-judge panel found the program to be

problematic because twenty-five percent of Rhode Island’s student population attended private

schools, and of that percentage, 95% attended Roman Catholic institutions. Moreover, the

teachers at these Catholic schools were the sole beneficiaries of this state program63.

Pennsylvania, on the other hand, created a program for the state to run a buy-back program for

certain “secular education services,” such as textbooks, instructional materials, and most notably,

salaries64. This program would, in essence, allow the state to reimburse private institutions for

much of their educational operating costs. Both programs were juxtaposed in the case before the

Supreme Court, where Chief Justice Burger held that both laws were unconstitutional. In his

ruling, Burger cited both how the Roman Catholic Church disproportionately benefitted by these

programs and how the three-judge panel in Rhode Island determined that parochial schools are to

be considered “an integral part of the Catholic Church65.”

Chief Justice Burger explained that the First Amendment’s Establishment Clause is not

simply a decree that the state may not formally establish an official religion; it actually goes

further, banning “laws respecting an establishment of religion66.” This imprecise wording created

62 Lemon v. Kurtzman, 403 U.S. 602 (1971).63 Ibid. 64 Lemon. 65 Ibid. 66 Ibid.

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a more restrictive measure on governmental activity, leaving a large legal gap between the text of

the First Amendment and the policies being created. A more nuanced reading of each policy

being reviewed is therefore required to ensure that there is no tacit religious establishment being

created. A secular purpose, for example, is an important part of the test that Burger establishes

to test the merits of a potentially-religious policy. This “Lemon Test” states that a law in question

(1) “must have a legitimate secular purpose;” (2) “Its principle or primary effect must be one that

neither advances nor inhibits religion,” and (3) “The state must not foster an excessive

government entanglement of religion67.” Applying it to Pennsylvania and Rhode Island, Burger

stated that the first prong was satisfied because both acts did say that they “wanted to advance

the quality of secular education,” and Burger was willing to accept those claims prima facie. The

second prong was not looked at because the third prong was what failed the test for both

programs. To determine which activities in the Roman Catholic private schools were secular and

which were religious would require extensive governmental regulations and monitoring of the

schools; doing so would require statutes defining religious activity, and dedicating funds for

agents to investigate the use of funds in these parochial schools. The logistics of such a program

would be too burdensome for such a purpose; therefore the acts are invalid68.

A key element to consider in this case is how, although the prongs of the test were

derived partially from past precedents, analysis on the part of Chief Justice Burger was used to

create a broad ruling that created a simple checklist that would extend beyond the courts. Any

government official who is considering passing a potentially-religious law could refer to this test

to determine the constitutionality of their legislative goal. Posner would argue that Lemon is a

good example of Justices being pragmatists focusing on efficient policy outputs because,

although it did refer to some precedent, it did not do so in such a way that Burger restricted

67 Ibid. 68 Lemon.

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himself and it was a derivation based on policy, not similarity. While Burger did not create

legislation that clearly said what is allowed and what is not, he essentially created a policy saying

that cases regarding the establishment clause need to be reviewed on a case-by-case basis, and

that his test is a good lens to use.

McCreary

Three decades after Lemon, two Kentucky county courthouses, in McCreary and Pulaski

counties, posted versions of the Ten Commandments on their courthouses’ walls. After a lawsuit,

the two county legislatures passed identical resolutions calling for their installations. The

displays were then changed to add some new documents in order to make them appear less

religiously-focused. Justice Souter handled this case for the majority, ruling against the two

counties69. He began by framing the question around the idea of the original purpose of the

displays being erected, with consideration for the fact that they were regularly altered70. Souter

noted the fact that the exhibitions were framed in gold and that the text of the Commandments

used the King James’ English biblical translation, and that the installation ceremony involved a

Judge-Executive declaring the Commandments as “good laws to live by” in the presence of his

pastor71. Then, the resolutions after the first lawsuit contained heavy religious wording, such as

“Jesus Christ, the Prince of Ethics72.” All of these elements in conjunction with each other made

Souter rule against the counties by invoking the Lemon Test’s first prong: secular purpose- the

test’s first use in years. Souter says that the purpose must be “genuine, not a sham, and not

merely secondary to a religious objective73.” Souter said that the displays failed because their

constant changes signal that the officials were trying to conceal a religious purpose.

Additionally, the Commandments being in plain English, as opposed to more legally-symbolic

69 McCreary V. ACLU 545 U.S. 844 (2005), 1. 70 McCreary, 2. 71Ibid. 72 Ibid, 4. 73 Ibid, 16.

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roman numerals, suggests that the religious message was to be more emphasized because of how

the First Commandment plainly declares one monotheistic deity74. Compiling this with the fact

that a religious figure was present at the dedication of the display gave Souter the impression that

“the display and resolution presented an indisputable and undisputed showing of impermissible

purpose75,” and was therefore unconstitutional.

Van Orden

Several minutes after the McCreary ruling came Van Orden v. Perry, which contained

another Ten Commandment display. This monument was donated by Fraternal Order of the

Eagles of Texas- a largely secular civil organization, and placed on the Texas State Capitol

grounds among 17 other monuments marking historical commemoration76. The display contained

the Commandments, an Eagle Grasping an American Flag, the All-Seeing Eye, two Stars of

David, and “the superimposed Greek letters Chi and Rho, which represent Christ77.” Forty years

after the erection of the monument, Thomas Van Orden, a lawyer, noticed the monument on his

way to the State Supreme Court library; he determined that it violated the First Amendment and

decided to sue. Chief Justice Rehnquist rejected Van Orden’s claim in the majority opinion by

arguing that: “Our institutions presuppose a Supreme Being, yet these institutions must not pass

religious observances upon their citizens78.” To Rehnquist, government must be able to

acknowledge religion and religious heritage and must not be hostile to any and every reference to

it, however, bridging the gap between church and state cannot happen79. He declined to use

Lemon here because the dedication from a private organization made this a passive display and

not a state-sanctioned policy, making Lemon irrelevant80. Rehnquist ended his short opinion by

74 Ibid, 20. 75 Ibid, 22. 76 Van Order V. Perry, 545 U.S. 667 (2005). 77 Ibid. 78 Ibid. 79 Ibid. 80 Ibid.

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saying that “Simply having religious content or promoting a message consistent with a religious

doctrine does not run afoul of the Establishment Clause81,” citing the existence of the Ten

Commandments and Moses in various locations throughout the Supreme Court82.

Anyone following the Court on this particular day in June of 2005 surely felt as if the

Court suffered from a sudden case of short-term memory loss, as two seemingly contradictory

rulings were released within minutes of each other. It is easy for an individual to see these cases

and instantly argue that Justices simply go on a whim when making decisions, and it is easy for

those in the legal field to argue that the lack of a strong ruling does not create any sort of policy

at all, and instead undermines a lawyer’s ability to consistently predict how a court would rule in

such a seemingly straightforward case83. Critics of the “Januslike” rulings cite how the various

circuit courts were split in their holdings of similar cases. For example, the 3rd, and 10th Circuits

upheld such a monument, the 6th struck one down, and the 11th split two decisions84. It is the

Supreme Court’s job to settle these inconsistencies, and many believe it failed at its job. Some

critique Souter’s new interpretation of the, supposedly dead and buried, Lemon test’s first prong

as being more restrictive with no clear way to prove that a declared purpose is “not a sham85;”

others critique Rehnquist’s lack of application of a test of any sort. It seems, to critics, that a

lawyer preparing a similar case has no way to tell if he or she should try to argue using a test or a

qualitative observation, and this lack of clarity in a relatively common case is doomed to

continue unless a clearer ruling comes out soon86.

It is easy to agree with those sentiments based on a cursory interpretation of the cases, but

upon a closer reading, one can see that there actually is a great deal of merit in the policy output

81 Ibid. 82 Ibid. 83 Sekulow, 33. 84 Sekulow, 33.85 Ibid, 38. 86 Ibid, 46.

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of these rulings. To do this, one must move past the majority opinions, as they are only good for

clarifying what the rulings are in these cases. Both votes were 5-4, meaning that one Justice,

Breyer, switched sides between the cases. To see the real difference in the two, it is important to

see his justification for changing sides, which he gave in his concurrence of Van Orden. Breyer

agrees with Rehnquist that the state cannot encourage religion, but at the same time, it is not

required to purge all public showings of religion87. However, he takes it a step further to argue

that the aggressive pursuance of “neutrality” actually violates the First Amendment when it

involves striking symbols of faith from the public. To seek absolute neutrality in these cases is to

violate the Establishment Clause by favoring the secular over the religious88. Such a gray line

between endorsement and condemnation enshrouded with passion on both sides is likely to cause

many borderline cases, and Breyer hints that the policy of the court should be a non-specific

policy approach- that no test should be consistently called upon because they in themselves can

be inefficient due to their bias against religion under the cloak of “neutrality89.” Breyer concedes

that the text of this monument is in English and refers directly to subordination to a Judeo-

Christian deity, but the circumstances surrounding the monument are what one should focus on.

This monument was placed by a third-party group with little to no direct religious ties; the

monument is further surrounded by the displays of many other beliefs and ideologies, which

suggests that it is not directly advocating for religion in a way that should cause any alarm90.

Unfortunately, Posner says little about these cases, outside of saying that Breyer is

“generally regarded as the most pragmatic member of the current Supreme Court91,” and that he

supports the ruling in Van Orden. Posner also acknowledges the criticism thrown at the two

87 Van Orden. 88 Van Orden. 89 Ibid. 90 Ibid. 91 Posner, Judges, 320.

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cases: the lack of a specific rule to apply92. However, his response does not go far enough to

support Breyer; Posner simply states that compromise is important in a democratic system and

therefore this is a sensible approach to such a divided issue that is likely to continually come up

under slightly different circumstances93. While he is on the correct track in his defense of

pragmatism, a simple applause of Breyer is not enough. Instead Posner should have proved

pragmatism’s efficacy by speaking more about how not having a specific policy in these cases is

efficient policy within itself. Not setting an explicit standard reveals that lower courts may now

have more latitude to use their own intuitive reasoning to determine whether a particular display

is or is not religious94. Those who believe in the flat allowance of all religious symbols without

discrimination and those who believe neutrality should be paramount are too far on the extremes

of this issue; hardline policies from the bench would only exacerbate these extremes and force an

all-or-nothing approach that could do more damage in the face of the Establishment Clause than

it would help95. Damaging the clause one is supposed to be enforcing is the opposite of efficient

policy. Therefore, the vagueness and apparent discrepancy in the two cases is actually a good

thing that proves that the only way to truly handle the imprecise law on religious establishment is

on a case-by-case basis. The policy that resulted from these cases does not settle all questions, as

there are still leftover issues surrounding specific elements and how they should be dealt with,

such as Souter’s focus on the language in which the Commandments are written and whether the

simple presence of a pastor at a public event makes it religious, but the non-policy approach that

gives court’s more leeway does create a “more workable standard96” that follows pragmatist

92 Ibid, 323. 93 Ibid. 94 Mike Schaps, “Vagueness as a Virtue: Why the Supreme Court Decided the Ten Commandments Cases Inexactly Right,” California Law Review, no. 4 (2006): 1243-1269, http://www.jstor.org/stable/20439063. (Accessed November 23, 2016), 1244.

95 Schaps, 1244. 96 Ibid, 1260.

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ideology. This is because the policy output, despite having no precise standard, is increasing

efficiency by not forcing courts to use a strict one-size-fits-all model to determine such

ambiguous and unique cases surrounding a relatively vague clause in the Bill of Rights. Breyer

should be applauded in his decisions.

The Ten Commandment Cases prove the success of Posner’s pragmatism by requiring

increasing interpretative efficiency in ambiguous cases. While Posner does not like

“distinguishing cases to death,” he does admit that it is a common practice, and, in these cases,

the practice actually led to an efficient policy being created, maybe suggesting that an aversion to

distinctions is not as important as Posner believes. The Court did, however, recognize that

strictly following precedent and forming a specific rule would have led to an aggressive

pursuance of secularism through using “neutrality” to scrub any element of religion from the

public sphere, an act which would have caused The Court’s own standards to be inviolate of the

First Amendment by inhibiting religion. The fact that the court cannot promote religion either

suggests that middle ground must be found between the two extremes to allow for efficient and

effective analysis of each individual case as it arrives; Breyer’s non-test policy is the best way to

avoid these judicial extremes.

Conclusion

The law is ever-changing, and the scope of the legal gap always will bring up new

challenges to existing policy. However, one should be confident in the idea that American

Justices are pragmatists in the way that Posner defines: focusing on efficient policy outputs.

While the policy that was put forward from the Ten Commandment Cases will not be appropriate

for every ambiguous case, as what is efficient should be determined by each genre of cases, they

represent fully the idea that Justices should be free to use their intuition to decide what is best.

Rowland 26

Future research in the study of judicial interpretation should look into the ideas presented

by Gibson and Caldeira suggesting that public approval may significantly play into the decisions

of Justices. While it may be difficult to fully determine the role it plays, it could do well for the

field to know if public support is as important as some may think.

In conclusion, mechanistic interpretation would not be successful in the United States’

legal system because it would lead to judicial extremes of “all or nothing” in cases with many

variables that can set the two situations very far apart. It is best for the system to allow

judiciaries, especially appellate Justices, to be free to create policy that they intuitively feel is

most efficient.

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