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JUDICIAL STATESMANSHIP: JUSTICE BREYER'S CONCURRING OPINION IN \VAN ORDEN v. PERRY\
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JUDICIAL STATESMANSHIP: JUSTICE BREYER'S CONCURRING OPINION IN \VAN ORDEN v. PERRY\
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Journal Article
JUDICIAL STATESMANSHIP: JUSTICE BREYER'S CONCURRING OPINION IN \VAN ORDEN v. PERRY\
2014
Overview
On Jun 27, 2005, the US Supreme Court decided two cases in which plaintiffs had raised Establishment Clause challenges to public displays of the Ten Commandments. The Court rejected the challenge to a monument display located on the grounds of the Texas State Capitol but vindicated the challenge to framed displays on the walls of two Kentucky courthouses. Both rulings divided the Justices by five to four, and Justice Breyer was the decisive vote in both cases. In his concurring opinion in the Texas case, Justice Breyer explained that context was critical in Establishment Clause cases, denied that any single mechanical formula can accurately draw the constitutional line in every case, and found it dispositive that the Texas display was roughly forty years old and had generated little controversy, while the Kentucky courthouse displays were quite recent and controversial. In effect, his ruling insulated from constitutional challenge the thousands of Ten Commandment markers that were erected in the 1950s and 1960s by the Fraternal Order of Eagles. Justice Breyer's opinion in Van Orden v. Perry is a laudable act of judicial statesmanship.
