The first Ten Commandments decision.

CNN reports:

The 5-4 decision, first of two seeking to mediate the conflict over religion's place in public life, took a case-by-case approach to this vexing issue. In the decision, the court declined to prohibit all displays in court buildings or on government property.

The justices left themselves legal wiggle room on this issue, however, saying that some displays -- like their own courtroom frieze -- would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held.

"The touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion," Justice David H. Souter wrote for the majority.

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment clause value of official religious neutrality," he said.

UPDATE: And the second case goes the other way. It makes sense, but I can't explain why until after class, which I've got to run to.

"Reality now is very strange."

So Iraqis are reading books.

Intellectuals and writers seem particularly disoriented in the new Iraq. Many were alive in the decades before 1968, when the Baath Party took control, which was a time of cultural renaissance in Iraq. But in 1979, when Mr. Hussein became president, he began banning books, singling out writers and intellectuals, jailing them and blocking publication of their work.

The employees of the Dar al-Bayan bookstore used a small crawl space in an attic area to hide favorite books that were banned. Some writers left the country, but many stayed, surviving by meeting secretly and circulating photocopies of banned books....

As far as reading about the ousted government itself, the period is still too raw for most. However, Mr. Khakhani said a book by Mr. Hussein's former doctor, Ala Bashir, called "In the Name of Terror," had been selling well.

Some abandon modern history and escape to ancient times. Suha Turaihi, an intellectual in Baghdad, said she was reading a book about Sabians, an ancient religion of Mesopotamia that dates to hundreds of years before Christ and still exists....

Young Iraqis are making different choices. At a bookstore in Mustansiriyah University, a large public university here, students flipped through romance novels and books on astrology.

Religious books, mostly on Shiite themes, which were banned under Mr. Hussein but have streamed into Iraq since his fall, were also in abundant supply.

Though college students remain relatively secular, said Zaid Hadithy, the shop owner, young people in the broader population "are going in a religious direction" as they search for a structure for their lives in an environment where the rules have fallen away....

[Mufeed] Jazaery [who was culture minister in the recent interim government] said he worried about the power of religion among young Iraqis. Anyone who was born after 1980 grew up during Iraq's decline into war and economic sanctions. Corruption and poverty have eroded the once-strong educational system, leaving young people vulnerable to populist leaders like Mr. Sadr.

"They can read, they can write, but they can't understand," Mr. Jazaery said. "That's good for dictatorship and dangerous for democracy. It's a spare army for all hard-line elements."

The dreaded Justice Kennedy.

Here's a front-page NYT piece on Justice Kennedy, whose nomination to the Court was sold to conservatives as "Bork without the beard" and who, 18 years laters, has conservatives fuming about impeaching him.

For more than a decade, Justice Kennedy has infuriated the right, writing decisions in cases that struck down prayer at public school graduations, upheld abortion rights, gave constitutional protections to pornography and gay sex and banned the death penalty for juveniles. With talk of a possible court resignation to follow the term that ends Monday, Justice Kennedy is looming in many conservatives' minds as just the kind of painful mistake they hope President Bush avoids. Showing few sharp edges in life or in law, the justice emerged as a consensus third choice, after President Ronald Reagan's first two selections failed. Demanding more ideological clarity in what could be the first Republican selection in 14 years, the right is now mobilized with a cry: "No more Tony Kennedys."

I thought the cry was "No more Souters." But Souter, appointed by the first President Bush, veered all the way to the liberal side of the Court. Kennedy just took up the middle position. It's not enough, I suppose, to avoid a Souter. You've got to avoid a Kennedy. I tend to think that if O'Connor retires, vacating one of the center spots, the new Justice will feel drawn to play the centrist role -- and if he does not, someone else will move toward the center. There's a certain small group dynamic going on here. But there is a more pervasive problem that has dogged conservatives over the years:

Ever since the elevation of Earl Warren, Republican presidents have picked justices who disappoint the Republican faithful: William J. Brennan Jr. (President Dwight D. Eisenhower), Harry A. Blackmun (President Richard M. Nixon), John Paul Stevens (President Gerald R. Ford), Sandra Day O'Connor (President Reagan) and David H. Souter (the first President Bush). One result is rage at what [rejected Reagan nominee Robert] Bork sees as subverted democracy. Even though Republicans keep winning elections, he said, the court "can say that the majority may not rule" in areas where permissiveness reigns, including abortion, gay rights and pornography. Calling most justices "judicial oligarchs," Mr. Bork said they reflected "the intelligentsia's attitude, which is to the cultural left of the American people." Some conservatives blame the judicial selection pool, which is largely confined to graduates of elite law schools that they describe as liberal (Justice Kennedy studied law at Harvard). Some say the Senate confirmation process weeds out strong conservatives. Many critics argue that justices drift left after reaching the court, in the hopes of pleasing "liberal elites."

Much more in the article about Kennedy. And much more carping by Bork. Myself, I like Justice Kennedy. He's a moderate who takes some strong positions on individual liberty.

If Justice O'Connor retires, must her successor be a woman?

"Sources report Rehnquist is not ready to resign and that O'Connor is readying the way for a return to Arizona with her invalid husband." So reports Robert Novak today.

No woman has ever vacated a seat on the Supreme Court. Every woman who has ever served on the Supreme Court is currently on the Supreme Court. We have yet to discover the extent of the political feeling that a woman must be replaced by a woman.

Novak writes:

While Bush would consider replacing one of the court's two women with its first Hispanic justice, neither Roberts nor Luttig for O'Connor would be politically correct.

Accordingly, White House judge-hunters are looking for a woman. They have interviewed Appellate Judge Edith Brown Clement (5th Circuit, New Orleans), a conservative who flies under the radar. She was confirmed as a Louisiana district judge in 1991, seven weeks after her nomination by the first President Bush, and was confirmed as an appellate judge in 2001, two and a half months after George W. Bush named her.

Clement would be subject to far more scrutiny as a Supreme Court nominee. So would any other conservative named by Bush, though Democrats may have exhausted scrutinizing Gonzales.

It's funny that members of minority groups should be thought to be exchangeable with women. I suppose there's an idea that it isn't right for the Court to consist almost entirely of white men, and the one thing you cannot do is move any closer to that extreme. But if we're concerned about representation, women are more than fifty percent of the population, and there are some important legal issues that have a special impact on women. For only one ninth of the Court to be female, after so many years of two ninths, should disturb us, unless we cast the notion of representation aside altogether. Equating a Hispanic man with a woman should be regarded as kooky. But it is really a smokescreen. Look, I'm doing a first! Sorry, that irks me.

Either replace a woman with a woman or don't talk about representing groups on the Court.

Fussing over symbols.

Here's the SCOTUSblog discussion group dedicated to McCreary, the Ten Commandments case that will be announced very soon. I'll be participating in the discussion over there, along with a bunch of other lawprofs. Amusingly, Marty Lederman, a SCOTUSblog regular, has gotten the discussion going with a quote from me -- the one that says I don't care which side wins. No one else has posted yet, but they've all been invited to react to my "provocative take."

He also asks:

Have liberals and progressives made a significant error -- in terms of their long-term interests -- in expending energy on such "government religious symbolism" cases over the past generation or two, even if such cases have (from their perspective) resulted in improved Establishment Clause doctrine?

Here he quotes Burt Neuborne (a lawprof who'll be participating in the discussion):

"[O]ne final staple of the progressive judicial agenda may not be worth defending at all -- the religious symbolism cases may do nothing but enrage voters who might be [our] natural economic allies."

That's certainly true. There's a corresponding mistake conservatives make, pushing for symbolic things that some of them care about (like the anti-flag-burning amendment), that are off-putting to people who'd otherwise be attracted to the conservative side. Politics would make more sense if both parties stuck to the economics and security issues that actually matter. But ordinary people might tune politics out, so they just can't resist prodding and stimulating us with those symbolic things. Somehow people get so fired up about symbols.

"Some believe the lost souls try to drag living beings into their spiritual limbo land."

Fear of the haunted beach, after the tsunami.

"I started my band for all the right reasons, and we did what we did for all the right reasons, and somewhere along the way it got sort of taken away."

So says Billy Corgan, as he announces Smashing Pumpkins is regrouping. Interestingly, he's selected the release date for his solo album to make the announcement.

"Teaching math in a neutral manner is not possible."

Because we teachers are compelled to patronize you students.

Paris.

Today, I sent my older son off to Paris. He's studying law, and Cornell Law School runs a five-week program there. I've been to Paris twice, and I haven't been to every city in the world, but, with my limited experience, I think Paris is the most beautiful city. What is more wonderful than to travel to a great city and just walk around and see? I wait for John's photographs and messages. I'm thinking about Paris today.

Chief Justice Luttig?

The Chicago Tribune's Jan Crawford Greenburg thinks so, and seems to have good access to inside source.

As a judge, Luttig is widely considered an ardent conservative, but his record reveals his independence, as do recent analyses of his opinions by several political scientists. He has stressed, to his law clerks and in a recent speech, intellectual honesty and adherence to precedent. He tells law clerks they will be fired if they fail to show him contradicting authority on a particular issue or tell him exactly how they view the case, even if they do not share his views. His clerks praise him as a teacher--and 40 of 42 have gone on to clerk at the Supreme Court, an unparalleled placement record.

Luttig has been highly critical of judicial activism on both sides of the ideological spectrum, in which he believes judges have decided cases based on a desired outcome instead of adhering to established law and taking that where it leads.

"At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and is at the pleasure of no one," Luttig wrote in a 2001 case.

As a result of that approach, Luttig sometimes reaches decisions that cannot be called conservative. In one recent case, for example, he departed from conservative colleagues to find that some people convicted of serious crimes had a constitutional right to get DNA evidence if it could prove their innocence.

His opinion writing is crisp and clear, and he is willing to confront colleagues--usually conservative ones--head on. He has parted ways with Wilkinson quite vehemently in several cases, prompting criticism that Luttig can be too sharp in disagreement.

Can't filibuster that, can they? I mean, the filibuster compromisers can't legitimately say "extraordinary circumstances" here, can they?

I found the Tribune article via The Supreme Court Nomination Blog, one of the SCOTUSblog sub-blogs, which should heat up like mad tomorrow, along with the entire blogosphere, if Chief Justice Rehnquist retires. And if O'Connor retires too -- well, the excitement will be unbearable. Perhaps, Justice Stevens will bow down too. No, no, that would just kill us.

Anyway, keep an eye on the SCOTUSblog Discussion sub-blog, where they've been discussing Kelo all week, and where, tomorrow, they'll be discussing the Grokster case and the Ten Commandments case. Or I should say we, because I'll be joining in the Ten Commandments discussion.

UPDATE: You know what my favorite word was in the description of Judge Luttig's style? I use it in my "What I hope the Supreme Court will do in the Ten Commandments case" post.

"A female interrogator took an unusual approach to wear down a detainee, reading a Harry Potter book aloud for hours."

Such are the conditions at Gitmo. The detainee, it must be noted, had to endure significant stress to his upper extremities as he needed to hold his hands over his ears to avoid hearing the story.

"There's something very refreshing about her cynical sexual frankness."

The Washingtonienne's novel/memoir is out. Here's the NYT review -- kind of a good review:

What is surprising about the Washingtonienne is what tolerable company she turns out to be. With much of the ubiquitous chick-lit genre still primly obsessed with the marriage plot, there's something very refreshing about her cynical sexual frankness, her shrugging irreverence toward the buffoons with whom she is intimate, her Scarlett O'Hara tenacity. Sure, she's unrepentantly, appallingly shallow -- callous toward the homeless (''so rude!''), uninterested in reading a newspaper (not even the Sunday Styles section of the newspaper you're holding) -- but there are hints that Cutler, at least, has matured enough to regard her alter ego with a wry knowingness. ''It was worse than Twilo closing,'' Jackie whines, referring to the New York nightclub, when she discovers that her parents are divorcing (the novel's one excuse for a subplot). ''I felt myself getting old, my youth and beauty fading,'' she sighs in Chapter 2. ''I was 25 years old.''

Okay, then. No reason to hate the sex-having, book-contract-snaring Washingtonienne, but no reason to read the book either, unless you're already a chick lit fan but you're tired of "the marriage plot." There's nothing much about politics in the book, apparently, other than that people in politics have illicit sex. Scarcely news.

Is foie gras evil?

Ever since I saw the movie "Mondo Cane," back in the 1960s, I've believed the methods used to make foie gras were truly evil. In the nutty old documentary -- which displays all sorts of human follies -- we see a close-up of a goose's eye as it's being force-fed. I don't know what the goose really felt, but as a human being, looking at that eye, I had to read: terror.

But consider this, written by Lawrence Downes in the NYT:

To animal welfare groups, the obscenity of force-feeding, known by the French word gavage, is self-evident. But Mr. Ginor and his partner Izzy Yanay, who runs [the country's leading foie gras producing] farm, accuse their critics of anthropomorphism and ignorance of duck anatomy and behavior. They say the practice is as benign as it is ancient, since waterfowl lack a gag reflex and have sturdy throats that easily tolerate grains, grit, stones and inflexible gavage tubes. To understand gavage, they say, is to accept it - as they insist poultry researchers have, after examining birds for signs of undue stress and suffering during gavage and finding none.

I visited Hudson Valley Foie Gras last week, seeing gavage for the first time. I saw no pain or panic in Mr. Yanay's ducks, no quacking or frenzied flapping in the cool, dimly lighted open pens where a young woman with a gavage funnel did her work. The birds submitted matter-of-factly to a 15-inch tube inserted down the throat for about three seconds, delivering about a cup of corn pellets.

The practice, done three times a day for a month, followed by slaughter, seemed neither particularly gentle nor particularly rough. It was unnerving to see the tube going down, and late-stage ducks waddling bulkily in their pens, but no more so than watching the epic gorging at the all-you-can-eat buffet at Shoney's, where morbid obesity is achieved voluntarily, with knife and fork.

Downes compares the ducks' interests to the interests of the farm workers: "175 people, mostly Latino immigrants [many of whom] live in trailers on the grounds and worship in a tiny chapel of crepe-paper streamers and candles in a corner of a warehouse." He also notes that their are far more brutal things going on in the production of the ordinary beef, pork, and chicken that most of us eat. We focus on the bizarre and not the ordinary, however, and deliberately producing an enlarged liver seems pretty bizarre. And most of us don't eat foie gras, so opposing it is a sacrifice-free virtue. I don't know if Downes is a shill for the foie gras industry, but it's obviously important to get all the facts and think straight about these issues.

A very conservative, pro-Kelo voice.

John Derbyshire on Kelo:

As conservatives we are of course all watchful for, and suspicious of, overweening state power. Governments do sometimes need to be able to act, though. The Tory in me appreciates what a British Prime Minister (though not a Tory) once called "the smack of firm government," when it's appropriate.

There are quite large areas of public life where the problem is not the govt doing too much, but govt frustrated in doing anything at all. The state of public works in New York City illustrates the point. It's little short of miraculous when govt here gets ANYTHING done, let alone a major public works project. (Look at the decades-long struggle to set up public toilets for the use of New Yorkers.) Yes, yes, I know, the Connecticut decision involved private development, not public works, but the eminent domain principle apparently comes in to both cases. Consider the paralysis over the World Trade Center site. If use of urban land were not such a tar pit of regulation & litigation, surely a vigorous govt, exercising eminent domain, might have done something with the site by now.

Yay for private property rights and down with govt usurpations. No argument about that as a general principle. When govt needs to act, though, it ought to be able to do so without unnecessary impediments & infinite delays, & private citizens, properly compensated, should yield their rights.

Well put.

What I hope the Supreme Court will do in the Ten Commandments case.

The AP's Gina Holland writes:

The Supreme Court ends its work Monday with the highest of drama: an anticipated retirement, a ruling on the constitutionality of government Ten Commandments displays and decisions in other major cases.

You know, I teach "Religion and the Constitution," and I'm especially interested in all the Supreme Court cases about the Religion clauses, but I've got to tell you, I think it's very bizarre of us to regard the Ten Commandments case as the big case. I understand that we are drawn to symbols and that it's especially easy to feel that you're up-to-speed on an issue like this and have a lot to argue about, but it really just isn't that important whether there's a monument amid other monuments somewhere on the state capitol grounds or a framed text amid other framed texts on a courthouse wall.

I'm sure people will get very excited about this case whichever way it comes down, and I'll be excited too, and I plan to write lots of posts about it here tomorrow. But I'd just like to tell you in advance that I really don't care which side wins. I don't think it's the sort of thing that matters much at all. These are inconsequential displays, which is why they'll be approved if they are approved and why it won't make much difference if they are taken down either.

What I'm hoping for is a crisp, useful opinion clarifying the law in this area.

IN THE COMMENTS: I explain my support for a middle position on the Establishment Clause (responding to three different commenters):

There are ideologues who want to purge religion from the public eye who care [how the Court decides this particular case] and religionists who want to intrude a lot more of it who care. If either of these groups were getting very far, I would care about the outcome in the cases that would arise. But the displays at issue in this case are inconsequential. Still, they are too much for the extreme secularists and just the beginning of what extremists on the other side would like to see. The Court needs to draw a good line that fends off both extremes. I don't care which side of the line the particular displays at issue in this case end up on....

I ... think the [Establishment Clause] extremists are blowing [this case] out of normal proportion. Everyone needs to learn to get along, and those who want to purify things too much don't impress me. Sure, they'll be put out if the government wins in these cases. I don't think people who take great offense easily should be driving the outcomes....

I think most atheists ... and many religious people ... accept and even enjoy seeing evidence of other religions around them. It's part of art and history and culture -- part of the beauty of the world that we live in (either by the grace of God or by pure, weird chance).

''This is only the second show that's a comedy about the South -- this and 'Andy Griffith' -- that doesn't make fun of Southerners."

Who watches "King of the Hill"? According to this NYT piece: "men between the ages of 18 and 49, and almost a quarter of those men own pickup trucks." The theory of the article is that "King of the Hill" offers Democrats insight into how to appeal to young Southern/rural voters -- sort of like the way "South Park" gives Republicans insight into how to appeal to young, non-socially-conservative voters:

[The Democratic Governor of North Carolina, Mike Easley,] says he thinks that understanding the show's viewers might resolve some of the mysteries confronting his party about the vast swaths of red on the electoral map.... When the governor, a former prosecutor, prepares to make his case on a partisan issue, he likes to imagine that he's explaining his position to Hank -- an exercise that might be useful for his colleagues in Washington too. For instance, Easley told me that Hank would never support a budget like the one North Carolina's Senate recently passed, which would drop some 65,000 mostly elderly citizens from the Medicaid rolls; Hank, after all, has pitched in to support his own father, a brutish war veteran, and he would never condone a community's walking away from its ailing parents. Similarly, Hank may be a lover of the environment -- he was furious when kids trashed the local campground -- but he resents self-righteous environmentalists like the ones who forced Arlen to install those annoying low-flow toilets. Voters like Hank, if they had heard about it on the evening news, would have supported Easley's ''Clean Smokestacks'' law, which forced North Carolina's coal-powered electric plants to burn cleaner, but only because industry was a partner in the final bill, rather than its target.

Well, then, Easley's use of "King of the Hill" is to figure out how to sell the Democrat's usual policies to people like this, not to critique any of his party's settled assumptions. Is that the way "South Park" is used by conservatives? It seems to me "South Park" criticizes all sorts of adult follies, and any Republicans watching that show for insight into how to appeal to its young audience ought to be learning that they need to become more libertarian and less socially conservative. "South Park" has plenty of advice for Democrats too -- but it's advice about changing yourselves, not just how to improve your rhetoric.

The Democratic interest in "King of the Hill" is that it portrays voters in a region where the Democrats have a big problem. So then, tell me, what does "King of the Hill" have to say about how Democrats should actually change their policies? I haven't watched enough of "King of the Hill" to be able to answer that question, so help me out in the comments if you can.

In the meantime, here's a post from Half-Bakered that says the NYT got the show all wrong:

[The show is] about renewal of traditional values in the face of the transformative. Every time Hank encounters the kind of "transformation" that Democrats and bureaucrats and the PC peddle, he defeats them -- often using their own internal problems and philosophies against them...

Hank is a rock-ribbed Republican, I tell ya whut. Dale Gribble, his neighbor, is a Libertarian. Boomhauer is a Republican, but doesn't much care, I'm sure. Only Bill will likely vote Democrat sometime, but only because he's a softie who falls for a good line; if he admitted it to his friends, they'd blast him.

Bai [the NYT writer] also somehow manages to quote or mention pretty much only Democrats in the piece. Go read it; it's a hoot. He's either clueless or delusional.

Or as Hank would put it, "That boy ain't right."

(Via Signifying Nothing via Memeorandum.)

UPDATE: Lot's of good discussion in the comments. Makes me decide to TiVo "King of the Hill."

Also, here's the NYT review of the book "South Park Conservatives." The reviewer, Liesl Schillinger, an arts editor from The New Yorker, doesn't seem to know much about "South Park." She seems to think it represents "a new generation of Americans who refuse to accept public censure for their scornful attitudes toward gay men and lesbians, Native Americans, environmentalism and abortion rights." I say "seems" because she seems to attribute this characterization to the author of of the book. Actually, I'm really not sure what Schillinger is babbling about here. She doesn't seem to have put much effort into understanding the things she's criticizing, and the very short review is padded with irrelevant blather about "Monty Python."

Schillinger sniffs:

[T]his book isn't intended for readers of The Times and The Economist and watchers of CNN. It's for the people who are sick and tired of mainstream media and are fans of the blogs and right-wing commentators [the author Brian C. Anderson] cites so abundantly.

Blogs!

Oh, yeah, they're horrible. Horrible! They just take idiotic unfair slams at the good people who write for mainstream media. Why they'd even slam an arts editor who works at The New Yorker! The New Yorker! Where we know what we're talking about. We know "South Park" is anti-gay... uh, right? Isn't it?

ANOTHER UPDATE: I TiVo'd and watched an episode of "King of the Hill." The episode -- "The Petriot Act" -- involved taking care of a pet for a soldier who'd gone overseas. Hank feels the call of duty to take care of a dog, as a friend of his is doing, but he signs a contract that turns out to require him to take care of a cat, which turns out to be annoying and sick, and because he's agreed to use a particular, expensive vet, costs him the money he'd saved for the family vacation. He does his duty, without being particularly grumpy or cheerful about it, and in the end the family settles for a dinner out in a modest restaurant, all they have money left for. This is a very straightforward tale about living up to one's obligations. There is a scene where Hank stands up to the vet who is overcharging him, which is the sort of thing it seems Easley was grabbing onto. Hank gets mad when another man is not being fair and honest, so I suppose that shows that Hank-types can be activated by stories about people who cheat and take advantage. The whole "King of the Hill" concept, based on that episode, seemed to be about being solidly responsible and upstanding.