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I am so going to miss Justice Stevens

I am so going to miss Justice Stevens.

The latest reminder came as I was reading the Supreme Court's ruling resurrecting -- pardon the pun -- Congress's effort to keep an eight-foot-tall cross erected on federal land in the Mojave Desert as a memorial to World War I soldiers.

The most obviously maddening part of the decision was the argument by three justices -- Anthony Kennedy, joined by Chief Justice John Roberts and Samuel Alito -- that the cross is not an exclusively religious symbol.

A "Latin cross is not merely a reaffirmation of Christian beliefs," Kennedy insisted. "It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

Two other justices, Antonin Scalia and Clarence Thomas, argued that the person challenging the cross no longer had standing to complain about it, because the latest phase of the dispute involves Congress's authority to swap the land on which the cross stands with the Veterans of Foreign Wars for another parcel. It's a fair bet that the justices would have shared Kennedy's views on the merits of the dispute; at oral argument in the case, Scalia scoffed at the notion that the cross might be offensive as a symbol honoring all war dead.

Reasonable people can differ about secular candy canes or secular Santas. But a cross conveys an inherently, exclusively religious message. On a Christian grave, it is an appropriate symbol of belief in Jesus as the son of God, who died on the cross. On a Jewish grave it is a sacrilege.

Attempting, as Kennedy does, to drain the cross of its purely religious significance shows little respect for Christianity, and other religions as well. As Kennedy himself noted, people troop up to the cross to hold Easter sunrise services -- not bar mitzvahs. (Okay, I added the bar mitzvah part.)

Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, demolished this argument. (Justice Stephen Breyer dissented on other grounds.) But you don't need a Justice Stevens to know that the federal government's involvement in enabling the continued presence of the cross represented, as Stevens said, "continued endorsement of a starkly sectarian message."

No, the wonderful part of the Stevens dissent involved a more subtle, but no less maddening point: the plurality's situational jurisprudence when it comes to congressional deference.

"Congress's prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations," Kennedy wrote. And: "Respect for a coordinate branch of government forbids striking down an act of Congress except upon a clear showing of unconstitutionality."

Where was this respect in the Citizens United case, when the court went out of its way to overturn a part of the McCain-Feingold campaign finance law on constitutional grounds -- a step that Citizens United itself did not press until the court invited it to?

As Stevens tartly pointed out, McCain-Feingold was the product of extensive hearings and debate in an area -- campaign finance rules -- of core congressional competence. By contrast, the provision authorizing the land swap in the cross case was "buried in a defense appropriations bill and, so far as the record shows, undertaken without any deliberation whatsoever."

The conservative justices' respect for Congress seems to have an awful lot to do with what the justices think about the outcome. This is not judicial restraint. It's selective judicial activism.

By Ruth Marcus  | April 30, 2010; 11:30 AM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Comments

Ms. Marcus, sometimes a cross can be just a cross, such as the nation's second highest military medal for bravery -- the Distinguished Service Cross, Navy Cross and Air Force Cross -- which no recipient of any faith has ever returned because it had a sectarian meaning. Those veterans erected a cross-shaped memorial 76 years ago not because of religious insensitivity, but to honor 53,000 Americans who died in 19 months of combat during World War I. It was built as a sign of respect, and it is absolutely unfair to judge the past using 21st century politically correct viewpoints. The complainant -- a retired National Park Service employee and practicing Roman Catholic who does not object to religious symbols on private land -- resides in Oregon. The memorial is in the middle of the 1.6 million-acre Mojave Desert Preserve, which is 10-percent privately owned, with very little fencing to mark what is government property and what is not. The land swap was the only way Congress could resolve the Establishment Clause challenge and protect the integrity and intent of a recognized veterans memorial.

Posted by: jdavis703 | April 30, 2010 12:57 PM | Report abuse

Ruth: One of Justice John Paul Stevens's boyhood heroes was Perry Mason. Nearly every lawyer and fellow judge who's participated with Stevens in appellate review will testify to Steven's ability to get to the nub of the matter, often by asking a question that appears to bear no relation to the legal argument then underway. As a laymen, I found listening to Stevens in oral argument and reading his opinions to be a high form of entertainment and well as an education in the law.
Bill Barnhart, author, John Paul Stevens: An Independent Life (Northern Illinois University Press, 2010)

Posted by: bbarnhart1 | April 30, 2010 2:58 PM | Report abuse

People that complain about private citizens putting up a cross in the middle of the desert on public land over 70+ years ago need to get over themselves.

Posted by: BradG | April 30, 2010 3:04 PM | Report abuse

I am not going to miss Justice Stevens but wish he could hang on until 2012. Too bad.

Posted by: greatgran1 | April 30, 2010 3:05 PM | Report abuse

Justice Stevens and the three guaranteed liberals together with the swing vote upheld the taking of un-blighted homes from a widow and other long time homeowners, to give to Pfizer corporation to build a mall. (P.S. the mall property sat fallow for years thereafter)
WSJ: "The Supreme Court's 2005 decision in Kelo v. City of New London stands as one of the worst in recent years, handing local governments carte blanche to seize private property in the name of economic development. Now, four years after that decision gave Susette Kelo's land to private developers for a project including a hotel and offices intended to enhance Pfizer Inc.'s nearby corporate facility, the pharmaceutical giant has announced it will close its research and development headquarters in New London, Connecticut.

The aftermath of Kelo is the latest example of the futility of using eminent domain as corporate welfare. While Ms. Kelo and her neighbors lost their homes, the city and the state spent some $78 million to bulldoze private property for high-end condos and other "desirable" elements. Instead, the wrecked and condemned neighborhood still stands vacant, without any of the touted tax benefits or job creation.

That's especially galling because the five Supreme Court Justices cited the development plan as a major factor in rationalizing their Kelo decision. Justice Anthony Kennedy called the plan "comprehensive," while Justice John Paul Stevens insisted that "The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." So much for that.

Kelo's silver lining has been that it transformed eminent domain from an arcane government power into a major concern of voters who suddenly wonder if their own homes are at risk. According to the Institute for Justice, which represented Susette Kelo, 43 states have since passed laws that place limits and safeguards on eminent domain, giving property owners greater security in their homes. State courts have also held local development projects to a higher standard than what prevailed against the condemned neighborhood in New London.

If there is a lesson from Connecticut's misfortune, it is that economic development that relies on the strong arm of government will never be the kind to create sustainable growth."

The four conservatives voted in favor of the little folks, the homeowners. So much for the myth that Conservatives favor big companies.

Posted by: LETFREEDOMRING2 | May 1, 2010 9:32 AM | Report abuse

"But a cross conveys an inherently, exclusively religious message"

* * * * *

But that is precisely the problem, Ruth -- it does not. Like most symbols, especially simple ones (and two lines crossing at right angles is as simple as you get), there is a multivalence of meanings to the cross.

Posted by: RhymesWithRight | May 1, 2010 11:43 AM | Report abuse

Funny, how Ms. Marcus contends that the dissenting justices demolished the majority's decision and arguments.

Given her assessment, the dissent should be be the law of the land.

So sorry, Ms. Marcus, that is not how our democracy and our legal system works.

The dissenters did not carry the day, no matter what you suggest.

Posted by: Crmudgeon | May 1, 2010 5:01 PM | Report abuse

What about the Red Cross? What about the Iron Cross? Are these religious symbols?

Kennedy seems to be the only Justice that looks at each individual case with an open mind and no agenda. I would miss Kennedy if he left the bench. I won't miss Stevens nor would I miss any of the other politicians on the bench Alito, Breyer, Ginsburg, Roberts, Scalia, Sotomayor, or Thomas.

Posted by: hz9604 | May 3, 2010 9:47 AM | Report abuse

Let's see? There is an 8 foot post sticking vertically from the ground, crossed near the top by a shorter horizontal one. So that is irrevocably a religous symbol? So that we should saw that thing down so as to cart if off government property?

Posted by: racullen | May 4, 2010 8:09 AM | Report abuse

Let's see? There is an 8 foot post sticking vertically from the ground, crossed near the top by a shorter horizontal one. So that is irrevocably a religous symbol? So that we should saw that thing down so as to cart if off government property?

Posted by: racullen | May 4, 2010 8:09 AM | Report abuse

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