Tuesday, January 11, 2005

Justice Scalia Will Return to Ann Arbor on January 25th to Speak on Religion Clauses.

According to a post on How Appealing blog (quoting a 1/08/05 AP report), Justice Scalia will return to Ann Arbor, Michigan on 1/25/05 to speak in a lecture series sponsored by Ave Maria School of Law. The lecture is reported to be about the U.S. Constitution's First Amendment religion clauses (i.e., the Establishment and Free Exercise clauses). A visit to Ave Maria's website reveals no details on Nino's speech. But if his November 2004 speech at the University of Michigan is any guide, no recordings for broadcast will be allowed. (Check out these photos of Nino's UofM visit - how cool would it be to have Scalia lecture for your Con Law class?!) Perhaps UofM law student Heidi Bond will "live blog" the speech again?

In any case, the religion lectures ought to be fascinating. Even more so since the Court granted Certiorari in October to review the constitutionality of displays of privately donated depictions of the Ten Commandments on public property. (See, McCreary Cty. v. ACLU., (pdf) No. 03-1693, decision below: ACLU v. McCreary Cty.,(pdf) 354 F.3d 438 (6th Cir. 2003).)

Could McCreary Cty. bring the death of Lemon v. Kurtzman, 403 U.S. 602 (1971)? Certainly, Justice Scalia would like to kill off the Lemon test. Note his concurring opinion in Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 397-402 (1993), where Scalia remarked on the Court's selective application of Lemon as: "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."

But if Lemon were overruled, think of all the potential law review articles on the Establishment Clause that would be without a trite lemon title. (See, e.g., Bodemar, Note, School Choice Through Vouchers: Drawing Constitutional Lemon-Aid from the Lemon Test, 7o St. John's L. Rev. 273 (1996); Robertson, Squeezing Religion out of the Public Square -- The Supreme Court, Lemon, and the Myth of the Secular Society, 4 Wm. & Mary Bill Rts. J. 223 (1995).)

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Anonymous Anonymous said...

Oedel has been bashing Scalia in Con law. According to Oedel, Scalia has "marginalized himself because he is continuously pissing the other justices off."

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Blogger jpwalsh said...

Dear anonymous,
Professor Oedel has a point. Scalia is known to be crotchety. He has reportedly been savage to Justices O'Connor and Stevens during oral arguments. Because of his intense intelligence, he can be blunt and stubborn. While marginalizing might be a bit too strong, Scalia certainly is not known for being a great consensus builder among the Justices - just read some of his dissents. Recently, though, there have been reports in the media about Scalia going on a "charm offensive" in hopes of being named by President Bush to succeed the ailing Chief Justice Rehnquist. Whether that's true - who knows? But, I'll be mentioning some of these stories on Ninowatch, so stay tuned!

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