Trying something new here at Take the Fifth, sitting in to observe en banc arguments and provide quick-take observations. Reading the tea-leaves of an argument to predict outcomes is rarely a fruitful exercise even with a three-judge panel, certainly not with a 17-judge en banc panel; but the judges’ questions nevertheless are fertile ground for interesting observations.
This afternoon’s argument featured two cases that had been consolidated for en banc oral argument purposes only. Roake v. Brumley, 24-30706, is the challenge to Louisiana’s law mandating the display of the 10 Commandments in every public school classroom, and is a rehearing of the panel decision (Dennis, Haynes, Ramirez; Dennis, J., concurring) affirming the M.D. La. finding of facial unconstitutionality and granting a preliminary injunction. Nathan v. Alamo Heights Independent School District, 25-50695, is the challenge to a similar Texas law, and the en banc sitting is the initial appeal hearing, skipping over a panel, of Texas’s appeal of the W.D. Tex. finding of unconstitutionality and grant of injunctive relief. This was not going to be an en banc argument that would slip quietly by. Even arriving an hour and fifteen minutes before the argument’s scheduled time, we were directed to an overflow courtroom that was already 2/3 full, and which was completely filled by the time argument was still thirty minutes away.
At the commencement of the argument, Chief Judge Elrod noted that, for Roake, the 17 active-status judges of the Court would be joined by senior-status Judge Dennis, who would be listening in remotely, since he was also on the panel in that case.
A main theme of the plaintiffs challenging the 10 Commandments school-display laws was the emphasis on the laws’ privileging a particular protestant version of the Commandments’ text from the King James version of the Bible, starting with particularly religion-directed commandments that “I am the Lord thy God. Thou Shalt Have No Other Gods Before Me,” etc. Judge Jones later asked if commandments such as “though shalt not kill” and “though shalt not steal” were particularly tied to any religion, but in the face of the earlier religion-oriented commandments then asked whether “any believer in any religion” didn’t believe in the “I am the Lord your God” commandment. (No tangential discussion of comparative theology sprung from that question).
That exchange showed where the fault lines may lie in the Court on these cases, as Judge Jones generally was the most active judge in asking questions showing doubt in the positions of the challengers to the laws and in the holdings of the district courts; though Judge Ho also asked questions on the same line, supportive of the states’ laws. In one of his lines of questioning, Judge Ho wanted to know if Stone v. Graham, 449 U.S. 39 (1980), on which the challengers rely, could still be good law, even though no subsequent decision had expressly held that Stone was overruled, where Stone relied in large part on Lemon v. Kurtzman, 403 U.S. 602 (1971), which the Court in the football-coach case, Kennedy v. Bremerton School District, 597 U.S. 507 (2022), held was overruled. Judge Ho wanted to know if looking for an express holding that a particular case has been overruled is the correct way to analyze the vitality of Supreme Court decisions. Judges Jones and Ho proposed a number of other examples of texts that they wanted to know would be barred by the challengers’ arguments against the display of the 10 Commandments, including the Declaration of Independence, Lincoln’s inaugural address, Martin Luther King, Jr.’s letter from the Birmingham jail, and the pledge of allegiance.
However, the most active questioner of all of the judges was Judge Higginson, asking many questions showing some challenge to and skepticism of various arguments from either side, but overwhelmingly more skeptical of the states’ positions. In one line of questions he came back to often, he made note of the wide range and large number of amici from various faith-based organizations who were aligned with the challengers of the laws due to the laws’ provision of official preference for a particular text and version of the Commandments. At another point, he asked one of the states’ advocates what the limiting principle would be if the Court were to hold that the ubiquitous, multiple-years-of-education and every-classroom display of a particular version of the Commandments were constitutional, then how would the courts distinguish and treat a compulsory recitation of the Commandments or a required assignment to answer questions using the particular version of the Commandments as an authoritative source?
Judge Richman asked questions about the importance of the dates for historical sources in determining the history and tradition of use of Commandments in public education (very specifically distinguished from use in non-public education), looking to the dates of incorporation in 1868, or the dates of widespread public education systems.
Chief Judge Elrod asked questions looking for the particular differences between the two cases, particularly as to whether the challenge to the Texas law could be ripe while the challenge to the Louisiana law might not be because it required more context.
Judge Douglas asked questions that seemed to question whether context and the use of other texts with the display of the 10 Commandments mattered to the court challenge, particularly as a facial challenge, because neither state’s law required any other documents be displayed, only requiring the Commandments’ display while allowing discretion (under specific guidelines) for other contextual texts.
The overriding questions coming out of the en banc argument were whether the laws required a mere “passive” display, and whether the plaintiff-challengers met their burden of showing that the display of the Commandments fell within the history and tradition of the type of establishment of religion that was the concern of the establishment clause (though at what point in time that history and tradition should point to was also heavily questioned). As to “passive display,” the advocate for the challengers noted that what students experience with their eyes can be just as impactful as what they experience with their ears, such that the characterization of display as “passive” may miss the mark; and that required attendance in all years of compulsory public education in classrooms with mandatory display of a version of the 10 Commandments preferring a particular translation and version of a religious commandment that “I am the Lord your God” fit within the Supreme Court’s guidance as to coercion as a prohibited establishment of religion.
There is no easy means to predict how the 17 judges (18 in Roake) will come out; though, if using activeness in the questioning were any indicator, we may be looking at an opinion on one side of the Court by Judge Higginson and a competing opinion by Judge Jones or Judge Ho (indeed, it’s hard to imagine a 1st Amendment religion case in this Court without a Judge Ho opinion). Active questioning may not necessarily indicate who will be authoring various opinions in this matter, however.
Take the Fifth 