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Scalia and the Cross

The New York Times is reporting on a Supreme Court case about a cross erected in the Mojave National Preserve in 1943.  While most of the Court seemed focused on whether the attempt to transfer the land to a private party (and thus avoid establishment issues) was proper, Justice Scalia went right for the establishment question: 

The question of the meaning of a cross in the context of a war memorial did give rise to one heated exchange, between Justice Scalia and Peter J. Eliasberg, a lawyer for Mr. Buono with the American Civil Liberties Union Foundation of Southern California.

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”

“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.

Justice Scalia grew visibly angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

Stephen Burbank (in an email) points out that this has all the markers of cognitive illiberalism as described by our article in the Harvard Law Review on the Supreme Court's decision in Scott v. Harris:

Because they are not generally aware of their own disposition to form factual beliefs that cohere with their cultural commitments [judges] manifest little uncertainty about their answers to [policy questions turning on issues of disputed fact]. But much worse, because they can see full well the influence that cultural predispositions have on those who disagree with them, participants in policy debates often adopt a dismissive and even contemptuous posture towards their opponents' beliefs....

It may be cognitively difficult for someone with the cultural commitments of Justice Scalia to understand the cross as anything other than a universal symbol profound respect, and to struggle with evidence to the contrary.  But struggling with cultural blindspots is something we expect judges to do, particularly in cases involving questions about the establishment clause.  

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