There could have been prudence in allowing the red states to display the document on the wall, yet clinging to established precedents might prove problematic.
In April, the full Fifth Circuit affirmed the constitutionality of Texas’s statute that requires the Ten Commandments to be posted in public school classrooms. For most of the preceding four months, I wrestled with whether the ACLU would risk pursuing a writ of certiorari. On one side, proponents of church-state separation must publicly vow to contest at every stage to keep classrooms free of religious display. On the other, the Supreme Court could issue a broader ruling that would set back separationism more than Kennedy v. Bremerton did. Why not simply let Louisiana and Texas proceed to avoid establishing a nationwide precedent? A conservative Fifth Circuit litigator told me he was convinced the ACLU wouldn’t seek cert here—the move was simply too risky.
Today, the ACLU filed a cert petition in the case.
Now the tougher question: does the Supreme Court have to grant cert? In the usual course, the Justices would typically take a matter of such significance that some argue it signals that Stone v. Graham has been abandoned. Yet the Court’s liberals may view the risk of taking the case as too high and vote for a defensive denial. If that happens, would Chief Justice Roberts and Justice Barrett be eager to hear it anyway? The conservatives may also grant to extend the Fifth Circuit’s precedent nationwide. But such a grant could backfire if five votes are prepared to preserve Graham.
The calculus here remains unsettled.
