Alas, nobody got the right answer to my question, although Terry and Roxanne made the best guess. And, in fairness, CNN identified O’Connor as the “swing vote.” But, in fact, she voted the same way in both cases, as did 8 other justices. For your actual swing voter, I bring you Mr. Stephen J. Breyer.
From a doctrinal perspective, like the other justices I don’t find Breyer’s opinion remotely convincing. The position of Scalia and Thomas in Van Orden is honest; they correctly see the 10 Commandments as state-funded endorsement of religion, and have no problem with it. The same is true, from the opposite perspective, for Stevens and Ginsburg. But Breyer’s Solomonic distinctions, which didn’t even convince O’Connor, aren’t very persuasive.
What I really don’t understand about Breyer is that I assume this split-the-difference concurrence was an attempt at consequentialist pragmatism. But what’s the logic here? Now, unlike abortion these church-and-state decisions are actually counter-majoritarian, and I have little doubt that these issues going to the Court is bad for Democrats (although there’s nothing they can do about it.) However, although this is contrarian, at this point I think the litigation itself is what matters; as with tort cases, the fact that people are litigating matters more than the outcome. But even if I’m wrong about that, it surely doesn’t make a difference whether the Court rules against the state in 1 or 2 cases. The headlines tomorrow, and the fulminations on talk radio, etc., will be “Court strikes down 10 Commandments.” You may be able to make a pragmatic case for ruling for the state in both cases, but what Breyer did doesn’t really make sense to me. Moreover, for progressives the best outcome would be a clear rule that makes it unlikely cases will get to the Supreme Court. When the constitutionality of state religious displays depends on Breyer’s (or O’Connor’s) random whim, this generates more litigation, which is bad for progressives not matter how it comes out.
On the merits, Stevens’ dissent in Van Orden gets it right:
The wall that separates the church from the State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require governments to hide works of art or historic memorabilia from public view just because they also have religious significance.
This case, however, is not about historic preservation or the mere recognition of religion. The issue is obfuscated rather than clarified by simplistic commentary on the various ways in which religion has played a role in American life, and by the recitation of the many extant governmental “acknowledgments” of the role the Ten Commandments played in our Nation’s heritage. Surely, the mere compilation of religious symbols, none of which includes the full text of the Commandments and all of which are exhibited in different settings, has only marginal relevance to the question presented in this case.
The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion, nor can the State’s refusal to remove it upon objection be explained as a simple desire to preserve a historic relic. This Nation’s resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality’s wholehearted validation of an official state endorsement of the message that there is one, and only one, God. [my emphasis]
I can, however, respect Thomas and Scalia for recognizing that the display is an endorsement of religion, and arguing that this is consistent with the 1st Amendment. To claim that the display is consistent with a robust reading of the Establishment clause, as Rehnquist and Breyer do, is remarkably disingenuous.
…as always, good discussion at SCOTUSBlog.