Today's Washington Post looks at the upcoming Supreme Court term and sees the potential for big changes in First Amendment jurisprudence, thanks to a more "muscular" Chief Justice, and the replacement of Justice O'Connor – Samuel Alito – both having gotten through inevitably "cautious first years".
"The replacement of [William H.] Rehnquist and O'Connor by Roberts and Alito is likely to have a significantly greater impact on the court than the replacement of [Justice David H.] Souter by Sotomayor," said Walter E. Dellinger III, a frequent Supreme Court practitioner who represented the government during the Clinton administration.
…
Alito is…likely to be more open than O'Connor to arguments that religious displays on government property do not necessarily constitute government endorsement of religion. That will be at issue when the court next week considers the case of a war memorial cross on government land in the Mojave Desert.Roberts will also be key in [First Amendment] cases…. He has emerged as a canny tactician, patiently moving the court's decisions to the right, but without bold steps.
I have not heard many experts predict the Mojave cross is likely to be struck down as unconstitutional by the current court. But the route it takes – and whether the decision is sweeping or narrow – will go a long way toward defining the Roberts court on Establishment Clause matters. Despite its troubling decision in Hein, the majority declined to go further in truly dismantling taxpayers' ability to challenge government actions. Once Buono is decided, we will have a better idea of whether there are 5 justices who desire to see "bold steps"in that direction.
