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The Non-Radicalism of Diane Wood’s Church and State Jurisprudence

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This Charlie Savage article about the politics of Obama’s Supreme Court nominations starts off by reminding us that attempting to preempt conservative claims that a Supreme Court nominee is a radical “judicial activist” is a waste of time, since anybody to the left of Sam Alito will be portrayed as a radical judicial activist. He then gives us another example of the extremely weak tea the right is brewing should Diane Wood be nominated:

Judge Wood could also find herself attacked as hostile to religion. She voted to allow people to challenge a Bush administration program that gave taxpayer money to religious groups and the Indiana House of Representatives’ practice of opening sessions with sectarian prayers.

These cases aren’t even decisions on the merits, but simply involved holdings that plaintiffs had the standing to sue over what were clearly potential violations of the establishment clause. The first of these involved a majority opinion by a 3-member 7th Circuit panel that was ultimately reversed by the Supreme Court. (Joining her in the majority, once again, was noted Maoist Richard Posner, who completely shredded the Supreme Court’s ultimate reasoning in advance.)

As some of you know, the precedent that was being applied in this case was Flast v. Cohen, which had granted standing to taxpayers to sue in a similar church and state case. However, as Justice Souter pointed out in dissent, Justice Alito managed to distinguish the precedent in a sort of parody of minimalist reasoning:

Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent…

So the argument here would seem to be that Diane Wood is a radical because she (along with the most influential conservative federal circuit court judge in the country) failed to anticipate that a plurality of the Supreme Court would discover a farcically specious distinction that would enable it not to apply its own precedent to the case in question. If that makes one a radical judicial activist, well…I think we’re back to the initial point.

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