LJWorld.com

October is always an exciting month for lawyers, political analysts and other folks who are concerned with the U.S. Constitution because October marks the opening each year of the U.S. Supreme Court term and arguments before the court on what are often highly contested points of law. The nine men and women who sit on the U.S. Supreme Court have enormous power. They are unelected, they serve for life — and often live to a ripe old age — and often exert as much power as Congress or the executive branch through their decisions.

This year there is a new justice, Justice Sonia Sotomayor, who has replaced Justice David Souter, as well as eight other justices who are returning from past years. Judging simply by her avid participation in questioning lawyers during argument, Sotomayor promises to add something new to the Court. Of the returning justices, there doesn’t seem to be very much new at all. Justice Clarence Thomas continues to sit silently; Chief Justice John Roberts continues to allow his conservative bent to shape the court; and Justice Antonin Scalia continues to exercise his rapier mind, sparing no quarter to lawyers who disagree with him.

Just how aggressive Justice Scalia’s comments can be was demonstrated the other week in his exchange with one lawyer, Peter Eliasberg, who was representing the plaintiff in the case of Salazar v. Buono.

The Salazar case has been bouncing around the federal courts for some time. The facts are fairly simple: A large Latin cross stands in the Mojave National Preserve as a war memorial. It has been there for decades. Several years ago, a park ranger, who is a devote Catholic, filed a lawsuit alleging that the display of a cross on federal park land violated the Establishment Clause of the U.S. Constitution and constituted an illegal endorsement of the Christian religion by the U.S. government.

This was hardly a new issue for the federal courts; cases on religious symbolism on federal land have been coming up through the courts for decades, although no clear rule as to what is or is not permissible has come forth. (My good friend, Jim Mayo of the Kansas University School of Architecture, and I have just written a brief article on this. I’ll be glad to e-mail a copy to anyone who is interested.)

What was so interesting about the arguments in the Salazar case had little to do with constitutional doctrine, however. The fascinating moment in the Supreme Court during these arguments came when Justice Scalia made the rather remarkable statement (to my mind) that “the cross is the most common symbol of the resting place of the dead.” Eliasberg responded that he had been to a number of Jewish funerals and never seen a cross on a Jew’s grave. Scalia made his annoyance at this response clear.

Scalia may well be right in his assertion that there are more Christians buried in U.S. cemeteries than Jews, Muslims, Hindus, atheists, and others, but this is totally beside the point. To argue from this that a Latin cross is now a secular, historical symbol, which would be required for the monument to stand, demeans every religious group, including Christians.

The cross is the most powerful symbol of Christianity that exists. It is not a symbol of other faiths. Neither Christians nor members of other faiths profess to believe this. The whole notion of the Establishment Clause is to prevent governmental endorsement of a religion, even if it is the religion of the majority. Certainly Justice Scalia knows this. His rudeness to a lawyer arguing before the Supreme Court and his insistence that the Latin cross no longer belongs solely to Christianity seems bizarre to me.

But, of course, Justice Scalia, like every Supreme Court justice, can pretty much say and do as he wishes. Justices are exempted from the ethical rules all other judges must obey and they serve life terms, limited only by impeachment, an extremely rare procedure. But that is precisely why all justices, not just Justice Scalia, ought to exercise self-restraint.