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A Frank Admission by Justice Ginsburg:

Conservatives often criticize the Supreme Court on the ground that the Justices sometimes indulge their personal preferences over standard legal sources in deciding cases. Defenders of the Court, however, argue that those criticisms are unfair.

In that light, I was struck by a fairly frank admission by Justice Ginsburg about the way in which her personal views directly impacted her vote in a First Amendment case:

Justice Ginsburg also said that her Jewish heritage influenced her ruling in at least one case involving another religion.

"We had one case where I was in dissent — it was about a cross in front of the statehouse in Ohio. And to me, the photograph of that statehouse told the whole story of the case: Here is the Capitol in Columbus, and here is this giant cross. And what is the perception of a Jewish child who is passing by the Capitol? It's certainly that this is a Christian country. A person's reaction could be: 'There's something wrong with me.' It's not a symbol that includes you."

Update:

A word of explanation--I characterized this as a "frank admission" in that although judges surely are influenced by their personal experiences and viewpoints, it strikes me as somewhat rare for a judge to state as explicitly as Justice Ginsburg seems to do so here that she was so strongly influenced by her visceral and subjective reaction to a photograph in the case that it "told the whole story of the case," as opposed to standard legal arguments.

John (mail):
Note how this ties in with the recent post about Posner's remarks on how judges make decisions.
2.2.2006 5:27pm
Bobbie:
Huh? The standard includes how the reasonable person would understand a symbol; since a justice can't call the reasonable person and ask him/her, they have to search their own experiences. What's improper about this? How is this any different than Scalia saying that people don't mind standing through other groups prayers?
2.2.2006 5:28pm
GWU's Sister (mail):
It sounds to me like Justice Ginsburg is saying that her personal experiences, not her "personal preferences" affect her view of whether a cross at a state capitol should be construed as an endorsement/establishment of religioon, not her view of what the proper test for endorsement/establishment is. This just makes sense to me. Someone who grows up in the majority may just look at the cross and think it's no big deal, but someone who grows up as a non-Christian may see an endorsement of the majority religion. If it was her personal "preferences" that were at stake, she would say something like, I think the establishment clause is very narrow, but because I don't feel comfortable with an expression of Christian religion, I think it should be interpreted broadly anyway.

Also, as far as the liberal-conservative divide, surely Justice Thomas has emphasized many times that his upbringing affects his views on things like affirmative action, in a way it might not affect someone else. I don't see anything newsworthy here.
2.2.2006 5:30pm
Trevor Morrison (mail):
Todd: It's Ginsburg.
2.2.2006 5:30pm
Robert Lyman (mail):
Judiciary square in Washington, DC, has a sculpture made out of melted-down handguns. What is the reaction of a child whose parents have taught him to shoot? Does it not say to people who own handguns, "There's something wrong with me"?

Now, obviously the cross is a frankly religious symbol and thus implicates the Religion Clauses. But there's something deeply wrong about a rule of decision is based on how some hypothentical person "feels" about X instead of what the law is.
2.2.2006 5:31pm
OrinKerr:
What's your point, Trever?
2.2.2006 5:31pm
Lou Wainwright (mail):
Just a guess Orin, but I think he's pointing out that her name is misspelled in the headline.
2.2.2006 5:35pm
Merriam-Webster:
Nice one, Prof. Kerr.
2.2.2006 5:35pm
Lou Wainwright (mail):
Oh, I get it now. Yeah, that flew right past me. Serves me right for commenting on spelling.
2.2.2006 5:39pm
keatssycamore (mail) (www):
Trever's point seems such a simple one, but you crazy law professors and your Socratic method always have to overcomplicate things.

Prey tel we, Proffessor Orrin Ker, what do you think the point was?
2.2.2006 5:41pm
Anderson (mail) (www):
TZ claims to identify a "personal view" of Ginsburg's that "directly impacted her vote."

Since the article reveals no such "view," I wonder what it is?

The article does suggest that her Jewish identity helped her do her job as a Justice, i.e., interpret the law from a broader perspective than "how a Christian would see something."
2.2.2006 5:42pm
keatssycamore (mail) (www):
Now me get it too!
2.2.2006 5:43pm
cmp:
Robert Lyman:

You assume that a "rule of decision . . . based on what some hypothetical person 'feels'" is distinct from "what the law is." In fact, in many, many circumstances the law is based on what "some hypothetical person" "feels," thinks, understands. Examples include the law of self defense, the law of negligence, the law of federal qualified immunity, the law of sexual harassment, the law of assault, and on and on. One of those areas is application of the Establishment Clause, where the reaction of an objective observer is part of the legal standard. If you're advocating eliminating all "reasonable person" standards from the law, you have a big job in front of you.
2.2.2006 5:54pm
CJColucci (mail):
I've often thought that the Burger Court's Establishment Clause jurisprudence was explained by the absence of a Jew down the hall who could walk into a colleague's often, slap a draft opinion on the desk and say: "What, are you meshuggeh?"
2.2.2006 5:54pm
wt (mail) (www):
Although the point is a small one, I am on Trevor's side here.

The misspelling of a Supreme Court Justice's name, while obviously a very minor error, reads like fingernails on a chalkboard sound.

Someone on this blog, and it may have been Professor Zywicki come to think of it, once spelled "Rehnquist" as "Rhenquist." Oh boy did that get my goat.
2.2.2006 5:59pm
Robert Lyman (mail):
cmp,

I'm aware that the "reasonable person" is big part of the law, and I wouldn't advocate removing it.

But I would advocate removing it from the Establishment Clause, of which I personally take a very narrow view.

And more generally--I realize I was not clear above--I would minimize "feelings" as a basis for decision as opposed to, say, what a resonable person "understands" or "believes." I think the law ought to be quite insensitive, to compensate for the fact that litigats are often hypersensitive to the point of being clinically histrionic.
2.2.2006 6:07pm
Ihbor:
The second amendment now has an anti-antigun-establishment cause now?
I wasn't aware that there was a reading of 2 that could include barring people from anti-gun demonstrations or statues public.

There certainly is such a clause regarding religion.
2.2.2006 6:29pm
HeScreams (mail):
If Justice Ginsborg had substituted a "Muslim child" for her Jewish one, she could have come to the same conclusion without being accused of invoking her "personal preferences."

The quote is not a "frank admission" of anything, much less a "frank admission" that her "personal views" (about the First Amendment) influenced her vote. Mr. Zywicki's claim that it is is pretty ridiculous.
2.2.2006 6:32pm
Robert Lyman (mail):
Ihbor,

I noted that distinction in my original post.
2.2.2006 6:34pm
Olive Juice:
Lyman:

Is an "understanding" or "belief" just a more specific type of "feeling"?

I do not understand what you are advocating.
2.2.2006 6:35pm
Justin (mail):
I agree with the nothing to see here view.
2.2.2006 6:44pm
Lowell R. (mail):
Judge Kozinski wrote a short article a few years back in which he admitted his upbringing in a Communist country influenced his decisions. It's a universal thing -- how can one escape the impact of one's formative years? Kudos to Ginsburg for admitting it.
2.2.2006 6:46pm
Justin (mail):
Also, Professor Zywicki, I would greatly appreciate it if you explain fully what your post was meant to convey, and the purposes behind posting this. As Professor Volokh noted correctly before, you deserve every benefit of the doubt on the meaning and purpose of your post, and my initial view is that this is just a fairly cheap shot at a Justice you don't particularly like in order to discredit a type of jurisprudence you don't agree with.
2.2.2006 6:47pm
t d e (mail):
If, heaven forbid, I ever had to sit on the bench and decide such questions, I think (in attempting to construct the fictional "reasonable person") I would ask myself how would I feel about that cross if I were Jewish/Hindu/Islamic etc.

I would also ask myself how I would feel about it if I were devoutly Christian.

So, I don't find anything surprising or unusual about Ginsburg's reflections on the subject.
2.2.2006 6:48pm
WB:
How is this an "admission?" It looks more like a misguided attempt to tar Justice Ginsburg.

Judge Alito "admitted" in his confirmation hearings that his formative years affected his decisionmaking.

I suspect that what most judges do when they're called upon to determine what a "reasonable" person or observer would do or think, they ask: (1) what would my reaction be, and (2) am I "reasonable" in this context?

If you're talking about a judge you like, you probably say that a judge "explains that her formative years inform" her judge's work. If it's a judge you don't like, the judge "admits that her personal views directly impact" her work.

If my point is less than clear, see Prof. Kerr's op-ed template
2.2.2006 6:53pm
The General:
Only to a liberal could "hurt feelings" be sufficient to find a government act to be unconstitutional. Unbeleiveable.
2.2.2006 7:00pm
Jon Black (mail):
Why all the hostility to this fairly simple post. The post merely cliams that "her personal views directly impacted her vote." To that end Ginsburg herself states, "to me... the photograph told the whole story."

The obvious implication is that her personal view of that photograph directly impacted her vote, particularly so because she states as much.

The more interesting part of the article is that bizarre exchange regarding the wreath. Imagine if in observance of a muslim holiday, crescents were hung to respect the occasion. However, Justice Scalia throws up a crucifix and says " this is my space and don't put a crescent on my door." I'm sure nobody would reference that.
2.2.2006 7:01pm
epaminondas (mail) (www):
I can't imagine a bigger invitation to chaos than the public believing that supreme courts judges' personal and anecdotal experiences are a formative factor in the law, and therefore in american history. Why even worry for a second about overturning set law when someone's anecdotal experience is perceived as objective reality and becomes case law?

Imagine if medical research was run that way?
2.2.2006 7:02pm
Kovarsky (mail):
First of all, I can suggest some medication for people that are "infuriated" by spelling mistakes, and I further submit that people who are so willing to audit their spelling should be equally or more willing to audit their tone.

That being said, I don't think Professor Zywicki is trying to take a cheap shot at Justice Ginsberg, but I think he is incorrect in reading the remark.

I'm abstracting here, but all she seems to be saying is that her experience as a member of a cultural minority helped her understand the feeling of exclusion that accompanies the majority's iconography. That same cultural experience could be brought to bear on the case irrespective of whether the majority was muslim, black, jewish, latin american, asian, etc.

It's a pretty tortured reading of the passage to interpret Ginsburg saying "I voted to promote the interests of Jews." I don't read Professor Zywicki as saying that either - although some of the commenters seem to interpret her that way.

Instead, the proposition that I take the Professor to be advancing is that cultural experience as "the other" tend to influence decisionmaking when that interest is implicated. Yeah, I'd say that's true, and given the toxically polarized state of current Court discourse, a pretty frank admission.

The reaction of the more conservative types on this blog, though, appears to be "see! we told you that judging reflects and transmits cultural hierarchies." My answer - I had no idea that conservatives were such deconstructionists these days.
2.2.2006 7:07pm
t d e (mail):

I can't imagine a bigger invitation to chaos than the public believing that supreme courts judges' personal and anecdotal experiences are a formative factor in the law, and therefore in american history.

Absurd. I don't think even the most "conservative" justice (whatever that means nowadays) believes that justices are or should be some kind of decision machines.

Not to put too fine a point on it, but how one learned the meaning of words is based on personal and anecdotal expereinces.

No, I don't advocate Justices locking themselves in chambers and meditating on what they think the law should be based solely on their "feelings." But to suggest that there is any decision NOT informed by personal experiences is silly.
2.2.2006 7:11pm
Kovarsky (mail):
by the way, i believe the admission was "surprisingly frank" because it is capable of being freighted with a completely unintended meaning, being cast as an admission that all cases are decided according to personal preference, a meaning with which many people are saddling the remark here.
2.2.2006 7:13pm
Kovarsky (mail):
i said

Instead, the proposition that I take the Professor to be advancing is that cultural experience as "the other" tend to influence decisionmaking when that interest is implicated. Yeah, I'd say that's true, and given the toxically polarized state of current Court discourse, a pretty frank admission.

I meant "Justice Ginsburg."
2.2.2006 7:20pm
BruceM (mail) (www):
I don't see this as an admission of personal opinion influencing her decision one bit. Rather Justice Ginsburg is merely giving an explanation as to how common sense dictates that this huge cross is functionally state sponsorship of christianity. She's absolutely right.
2.2.2006 7:26pm
mike (mail):
Interpreting the Constitution isn't about one judges "feelings" and "life experiences". Her role is to read the Constitutuion and apply the words as they were written and meant at the signing. Right wing nut jobs, like me, are correct .... the Courts are ignoring the Constitution and replacing it with their personal feelings.

What if the next judge wants to be a super-cop, loves every cop they see, thinks there is nothing that a cop can do that is "unreasonable". Would they conclude that the 4th Amendment doesn't apply when a cop is involved because everything they do is reasonable?

As a Jewish man (once a jewish boy), I've seen crosses. Frankly, it doesn't threaten me or my faith. I went to Catholic churches to see my buddies be confirmed, sing in the chior, etc. America is about freedom and enjoying what makes others happy. The first amendment is not freedom FROM religion, its freedom OF religion. I enjoyed my friends religion, as they enjoyed mine (side note - Catholics love matzo - who would have thought). Her interpretation would mean a teacher in public school could NOT wear a cross or star of David.

She is wrong on so many levels that I got to go and shoot something.
2.2.2006 7:37pm
t d e (mail):

Interpreting the Constitution isn't about one judges "feelings" and "life experiences". Her role is to read the Constitutuion and apply the words as they were written and meant at the signing.

Use that to compare:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

with

The first amendment is not freedom FROM religion, its freedom OF religion
2.2.2006 8:02pm
crane (mail):

As a Jewish man (once a jewish boy), I've seen crosses. Frankly, it doesn't threaten me or my faith.


So, you wouldn't mind having your tax dollars spent on huge crosses for government buildings?
2.2.2006 8:25pm
mike (mail):
As a conservative, I would be pissed my tax dollars were wasted in that manner. Government wastes so much of our money and a huge cross would be another example of that.

As a Jew, I wouldn't mind. Honestly. If I tolerate the majority's choices, then my choices would be tolerated also. If I don't tolerate and respect others, why should I expect tolerance and respect. A modified Golden Rule viewpoint.

I hate to break the news to everyone, America was founded by and for Christians. Minorities have always played an important role though. For example Hyman Solomon, a jew, helped finance the Revolutionary War. But in the end, our founding fathers were religious Christians. Our nation would not be what it is without their Christian ethics and viewpoint.

By the way, I thought the Cross in the Ohio case was paid for by private parties and there was no public funds used. Is that wrong?
2.2.2006 10:03pm
Byomtov (mail):
This is a truly silly post for reasons others amply explain. Just wanted to add my voice.

As to whether it's a cheap shot, I'd say it's an attempt at a cheap shot, but since it misses so badly it's probably not a shot of any kind.
2.2.2006 10:20pm
Robert Schwartz (mail):
"And what is the perception of a Jewish child who is passing by the Capitol? It's certainly that this is a Christian country. A person's reaction could be: 'There's something wrong with me.' It's not a symbol that includes you.""

Funny thing is that I am a Jewish man, who was once a Jewish child (boychik), who grew up in Columbus, Ohio and who later had an office overlooking Capitol Square. I have never once seen a cross or a Christmas decoration in, on, or near a public building and thought "There is something wrong with me."

I have had that thought, mostly back in my single days after being shot down, but not upon seeing a cross or a Christmas decoration in, on, or near a public building. Furthermore, I know no Jewish children who grew up in these parts (including my 3) who suffered a religious identity crisis precipitated by seeing a cross or a Christmas decoration in, on, or near a public building.

Columbus has a small (maybe 15-20K), but active, Jewish community. Those of you who concern yourselves with such matters may recognize names like Schottenstein, Wexner and Melton. Relations with our Christian neighbors and colleagues are excellent. Justice Ginsburg's comment come from a ghetto mentality that I cannot relate to, and only barely understand.

Furthermore, this type of argument should not serve as basis for judicial reasoning. The form of argument comes from Brown, but there they had Kenneth Clarke as an expert testifying as to the psychological damage done by Jim Crow. I don't know of any studies about the damage inflicted on Jewish children by seeing crosses, but it should not be presumed, and should only be regarded when established by clear and convincing evidence based on appropriate expert testimony. And I do not believe that such phenomena or evidence exists.

Nor, am I convinced that even if the psychic phenomenon existed, it would be relevant to a 1st amendment case. Remember that the issue in Brown, whether the 14th amendment was offended by segregated public schools, is quite different than the issues raise by a first amendment case.I think the real reply to some one who is offended by somebody else's religion is "keep it to yourself."

Michael Newdow, the plaintiff in the Pledge of Allegiance case in 2004, clearly had the hide of a rhinoceros. Since no one more sensitive than that would have dragged his daughter through that litigation or absorbed the public calumny that he did. Yet we saw him on television on numerous occasions complaining about the psychic injury caused by thinking about his child reciting the Pledge. It was not a persuasive argument, nor should it be relevant.
2.2.2006 10:20pm
2L:
robert:
i dig your post.
2.2.2006 10:45pm
Marcus1 (mail) (www):
Whether a state action amounts to "establishing religion" is a judgment call, dependent on how people perceive the action.

If people think "oh, it must just be Christian cross month, and that's why that is there," then it is not necessarily establishing religion. But if Jews will largely take the cross to mean that they are less American than Christians, then that's a problem.

The idea that officially sanctioning Christianity makes non-Christians second-class citizens may sound silly, but it's been specifically suggested by commenters on this site. "We're nice for letting the non-Christians live here, unlike countries like China that persecute their religious minorities." That view can not be officially endorsed.

This shows me that Ginsburg has good judgment. I think thta's a good thing.
2.2.2006 10:49pm
frankcross (mail):
We are in such an attack society. Nothing about this post is intrinsically critical. But because you figure Todd is conservative, you simply infer that he is attacking the Justice. That says more about you than it does about him.

The fact is, every justice I know who has spoken to the matter, has explicitly said that his or her decisions are colored by his or her background experiences. This is a little different because the justices typically speak very generally, and this involves a particular case. And it supports a diverse judiciary. Because justices inevitably bring their background life experiences to bear, it makes sense to have a broader variety of such experiences on the Court.
2.2.2006 11:10pm
Medis:
I'm a little puzzled by those claiming Todd wasn't implying a criticism of Ginsburg, His post starts:

"Conservatives often criticize the Supreme Court on the ground that the Justices sometimes indulge their personal preferences over standard legal sources in deciding cases. Defenders of the Court, however, argue that those criticisms are unfair.

In that light, I was struck by a fairly frank admission by Justice Ginsberg about the way in which her personal views directly impacted her vote in a First Amendment case . . ."

If Todd wasn't trying to imply that this episode was evidence for the aforementioned "conservative" criticism, then this is a very poorly worded post.

And of course, as other have pointed out, Todd seems to be conflating judges drawing on personal experience with judges elevating personal preferences over the law.
2.2.2006 11:27pm
Thomas Roland (mail):
Justice Ginsberg experienced insight based on personal experience, she did not place personal preference (for a particular result) over application of legal standards. This might be complicated for some, but to me it seems rather pedestrian.
2.2.2006 11:28pm
snowball (mail):
"We are in such an attack society. Nothing about this post is intrinsically critical."

It seems pretty "intrinsically critical" to (1) say there's a debate whether judges "indulge" their "personal preferences" (all words with negative connotations) when deciding cases, (2) claim that Justice Ginsburg has supposedly admitted that her "personal views" (note the close parallel to nasty "personal preferences") had affected her vote in a case, and then (3) invite comparison ("In that light, I was struck . . . ").

I know that you want to be nice to Todd, for some reason (maybe to show that you're even handed in treating conservative legal scholars), but that's no excuse for accusing the comments of attacking Todd unfairly. His post was a hatchet job, and he was rightly called on it.
2.3.2006 3:33am
minnie:
What's your point, Trever?

On a legal blog, shouldn't the misspelling of a SC Justice's name be pointed out?

Methinks Trevor is owed an apology.
2.3.2006 3:55am
Zywicki (mail):
A quick word of explanation--what caught my eye was Jon Black's observation, the implication that the photograph told "the whole story" of the case. At that point, it seems that she is implying that her subjective feelings were driving her vote in the case, rather than external legal sources.

Sorry about the initial spelling error in the text.
2.3.2006 6:32am
Medis:
That makes little sense, Todd.

Any competent user of the English language knows that "X told the whole story" isn't a literal claim--eg, it doesn't mean that literally nothing else was relevant. Rather, that turn of phrase simply implies that X somehow captured the essence of whatever was going on.

In this context, it is absolutely clear what Justice Ginsburg means. She isn't somehow abandoning the Court's jurisprudence with respect to the Establishment Clause. Admittedly, that jurisprudence is a bit of a mess, but with something like a display on government property, the applicable test is the Endorsement Test. So, the judge is supposed to ascertain whether the display creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion. More broadly, the principle behind this test, as stated by Justice O'Connor in Lynch, is that "[t]he Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." What Ginsburg is saying is simply that this photograph "told the whole story" of the case by capturing the essence of why the display violated the Establishment Clause given this standard.

Frankly, Todd, I am having a hard time understanding how you could miss all this. Anyone with a basic understanding of the Court's recent Establishment Clause jurisprudence should have been able to immediately identify the legal test that Ginsburg was applying. So, it should have been obvious that she was in fact making a "standard legal argument" in this passage, notwithstanding the turn of phrase "told the whole story."

In short, there actually is no "opposition" between what Ginsburg is describing and the "standard legal arguments" in this area of the law. So, I think many commentators are rightly suggesting that you appear to be reaching to find such a conflict where none in fact exists.
2.3.2006 7:42am
frankcross (mail):
Well, "liberals say that's unfair" is a little vague. But if the liberals are saying that backgrounds don't influence judging, that's nuts. I assumed the "unfair" was referring to the more sensible claim that the same influences conservatives. And it's nuts for conservatives to deny this.

But my bottom line is that I don't know Todd's agenda or if he has one. The post could be read different ways. And I'm tired of people automatically assuming the worst of other people. Instead of critiquing the speaker's motives, I think it's much more valuable to discuss the substance of the argument.
2.3.2006 11:26am
farmer56 (mail):
Frankcross;

But. That is the point. a judge should judge the law and not be influnced by a picture. A picture is proof of what both litigants have agreed happened. So? Why does a picture sway a legal opinion of something no one questions?

An additional question? I keep hearing 'establishment clause'. What is that?
2.3.2006 12:10pm
frankcross (mail):
Farmer, I suspect that conservative judicial opinions on obscenity and pornography are influenced by the nature of a "picture". Maybe you are.
2.3.2006 1:08pm
Medis:
farmer56,

Judges have to make factual determinations, and apply law to fact. To do that, they evaluate evidence in the record.

So, for example, if the law requires the judge top ascertain how a reasonable person would react to a certain event, the facts of the event are only the first step in the analysis. The law requires, as a next step, that the judge determine how a reasonable person would react to the event given those facts.

And as I and others have explained above, that is all that Justice Ginsburg was doing in this case: she was applying the law to the facts as represented by this evidence.
2.3.2006 2:01pm
Richard Aubrey (mail):
Kovarsky.

This type of cultural experience is most assuredly NOT going to be applied to other religions, and, considering the tentative nature with which the current cartoon kerfuffle is being reported, most and moster assuredly not going to be applied to Muslim iconography.

Now, I know saying that makes me a bad person and a Christer and all that, and I know that both history and future events proving me right won't prove me right.

But I thought it useful to inform you that folks actually know better.
2.3.2006 2:32pm
farmer56 (mail):
Frankcross;

No. I see no reason to see a picture of pornography to identify it. I would use the written statute of the jurisdiction I was in, to determine if the PEOPLE thought it was porn. 'I'm a judge now'. So. My feelings have no bearing. Simple. At least to me. If you might be a judge??Would you reverse a juries verdict of a murder, and the body that was never found? Because you, (the Judge did not see the picture?)

Sounds silly dont it?
2.3.2006 3:09pm
farmer56 (mail):
Medis

Where did that come from?

if the law requires the judge top ascertain how a reasonable person would react to a certain event, the facts of the event are only the first step in the analysis. The law requires, as a next step, that the judge determine how a reasonable person would react to the event given those facts.

A Judge has the ability to define a reasonable persons response to 'Something'?

So? I am a judge. And my determination is that a reasonable person would react in a negative way to grilling a steak on Friday night, on the court house square (Catholics dont eat meat on Fridays) I can put the offending party in jail?
2.3.2006 3:24pm
Medis:
farmer56,

Under a particular law, yes, a judge might have to determine a reasonable person's reaction to an event.

I'm not sure what you are getting at with your hypothetical, however. First, to flesh out your hypothetical you would have to provide the relevant criminal law. I might note that the "reasonable person" standard does appear frequently in the criminal law--for example, if you are accused of a crime involving a negligence standard, or if you are asserting certain defenses.

But I suspect that you didn't really mean to bring up the criminal law. Rather, if you are talking about the Establishment Clause, it would usually be a civil, not criminal, case.

I noted the applicable standard for such Establishment Clause cases above (the Endorsement Test). So, if I could take the liberty of modifying your hypothetical, we might suppose that a judge declares that a reasonable person would find that a government cafeteria serving meat on Friday sends a message of disapproval of Catholicism.

What could we say about the judge's decision in such a case? Well, it is not the case that the judge applied the wrong legal standard, because that is in fact the applicable legal test under the Supreme Court's precedents. However, we could (and undoubtedly would) say that the judge had misapplied the law to the facts in this case.

So what happens then? If this was, say, a federal district court judge, then the case could be appealed to a federal court of appeals, where they would very likely reverse this decision. If the court of appeals for some reason did not reverse this decision, then it could be appealed to the Supreme Court, which would also very likely reverse this decision.

But what, you might ask, would happen if for some reason the entire federal judiciary went insane and decided that this is what a reasonable person really would believe?

To me, this is sort of like asking what would happen if Congress decided to increase the income tax rate to 110%, or the President decided to order the entire United States military to surrender to Luxembourg. In other words, if an entire branch of government does something entirely insane, then I'm honestly not sure what would happen next.
2.3.2006 4:14pm
farmer56 (mail):
Medis

I used your premise. A reasonable person being offended.

I am reasonable. I am often offened.

You want a judge to define reasonable, and, offended?

Gosh what a system

I'm offended by the kids at the malls with their pants falling off. Gee

I am offended by atheists using our legal system

I am really offended when a judge cannot define the difference between the constitution, (Congress shall make no law 'prohibiting the free expression of religion') and turning it into any thing that recieves a tax penny can not allow a mention of religion.

YES I am offended. were is my relief?
2.3.2006 4:37pm
Medis:
farmer56,

Actually, the relevant test is not whether a reasonable person would be "offended". As I stated above, it is "whether the display creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion." That, of course, is a very important difference.
2.3.2006 6:02pm
byomtov (mail):
You know, I remember Clarence Thomas' confirmation hearings. Before Anita Hill appeared lots of conservatives were talking about how Thomas' personal experience growing up would be ever so valuable to his decison-making on the Court. It would give him insight, etc.

Only applies to conservative Justices I guess.
2.3.2006 9:03pm
Omar Bradley (mail):
To my knowledge, Justice Thomas has never upheld a pornography law either. He's broken with the conservatives in Ashcrift v ACLU, US v Playboym Ashcroft v FSC, Jacobson v US, et al

Coincidence?
2.4.2006 12:42am