Survey Questions

[marty.lederman at comcast.net]

Chip's post piqued my interest when he wrote that Edwards and Santa Fe were "probably the two toughest Est CL cases in which to side with the government during [Scalia's] tenure on the Court."

I'm curious whether others agree -- whether we have any sort of consensus on such matters.  After all, I seem to recall that at the time cert. was granted in both cases, it appeared likely the government would win (or, in Edwards, that at least the Court would have to tie itself in knots to side with the plaintiff).  

In cases the Court has heard on the merits since, say, Everson, what would you identify as:

1.  The toughest EC cases in which to side with the government.

2.  The toughest EC cases in which to side against the government.

3.  The toughest FEC cases in which to side with the government.

4.  The toughest FEC cases in which to side against the government.

 -------------- Original message ----------------------
From: "Ira (Chip) Lupu" <iclupu at law.gwu.edu>
> I think we have to go back to Prof. Finkelman's "realist" question:  Justice 
> Scalia has (both before and after Smith) voted to uphold Free Exercise claims 
> (Frazee, Lukumi, Locke v. Davey), but I don't believe he has EVER voted against 
> the government in an Establishment Clause case (including Edwards v. Aguillard, 
> and Santa Fe Ind. School District v. Doe, which are probably the two toughest 
> Est CL cases in which to side with the government during his tenure on the 
> Court.)  So will Justice Scalia ever see an Establishment Clause claim that he 
> likes?  Or does he just find reasons to vote against them all?
> 
> I'll use this question to slide into a piece of shameless self-promotion.  Gene 
> Nichol just resigned from the William & Mary presidency, in part over a 
> controversy re: his removing a cross from its default place on the altar table 
> in the school's chapel (the cross can be returned to the table during Christian 
> worship).  W & M is a state university.  Wasn't Nichol just acting as the 
> Constitution requires in removing that cross from its permanent place on the 
> altar table?  What would Justice Scalia say if the new 
> W & M President returns the cross to that space, and the matter is litigated?
> 
> Bob Tuttle and I have explored the question raised by the William & Mary 
> situation (though we of course did not focus on Scalia) in "The Cross at 
> College: Accommodation and Acknowledgment of Religion at Public Universities," 
> available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1090218.  I 
> suspect that Scalia would vote to uphold such a placement of the cross in that 
> chapel on some sort of "historical acknowledgment" ground, though (as we show in 
> the piece) that argument is very weak in this case, because the Wren Chapel at W 
> & M is designed to look like an 18th century Anglican chapel, and such chapels 
> would not have included a cross.  So the cross in that chapel is, as we say in 
> the piece, "glaringly anachronistic."
>