June 27, 2005

When Recycling the Story Goes Wrong

by PG

Dear Associated Press,

O'Connor is not the "swing vote" in every case in which she's in the 5-4 majority. In today's rulings regarding the Ten Commandments, Justice Breyer is much more accurately characterized as the "swing," as he voted with the majority both to permit the Texas monument but to disallow the Kentucky display. O'Connor, in contrast, consistently opposed both exhibitions of the Commandments, and wrote a dissent in the Texas case to boot.

An Annoyed Law Student

Sean notes that "it shows the bias of the media to promote or tear-down particular judges. This in turn keeps the laymen from having any 'true' grasp on legal theory." O'Connor as swing-vote is the prepared script for 5-4 cases -- Kennedy also, of late -- so perhaps liberals now can start bitching about being betrayed by Breyer. I hate getting left out of the things conservatives get to do!

Prior De Novo posts on the Ten Commandments:
Making the Ten Commandments Hindu-friendly
Establishment Claus: Religion in the Public Square
Jason Samuel: On McCreary & Van Orden
Sean Sirrine: Establishment Clause Issues

And it turns out that the SCOTUS blog miscalled it, aside from O'Connor's writing separately -- the aforementioned dissent plus a concurrence in McCreary.

UPDATE: Will Baude makes the same point.

June 27, 2005 03:31 PM | TrackBack

I agree--I'm STILL angry with Breyer's swing vote in Tecumseh Board of Education v. Earls, voting with the majority to allow mass suspicionless drug testing of high school students. (Although it was amusing watching Lindsay Earls introduce herself to Justice Breyer at a breakfast we both attended last year....)

Posted by: Jed Sorokin-Altmann at June 27, 2005 09:45 PM
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