In a post at Dispatches from the Culture Wars, I ran across a quote from Supreme Court Justice Scalia's opinion in Lamb's Chapel v. Center Moriches Union Free School District (1993) regarding the so-called "Lemon test," which, as Ed Brayton notes, Scalia would like to have done away with all together. The relevant passage reads as follows:
Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, 505 U. S. ----, ---- (1992) (slip op., at 7), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. [...]
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
Ed Brayton calls attention to the opinion's "vivid metaphors and its wry wit." Fair enough, but I'm inclined to comment that the metaphors' vividness serves mainly to mask their lack of aptness. For insofar as the "Lemon test" is some kind of supernaturally indestructible creature, it is a man-made one, more akin to, say, Frankenstein's monster than a ghoul. Actually, the most apt comparison might be to a golem, in this case one created in 1971, animated by a scroll inscribed with the Establishment Clause, and kept locked in the basement of the US Supreme Court Building except when a majority of the justices authorized its unleashing. And, as with its mythic counterpart from Josefov in Prague, its forays are met with dismay from certain Christians.
Notably lacking from Scalia's opinion is any argumentation as to why the Lemon test should be regarded as a monster. The most substantial criticism he expresses is that the Supreme Court has applied it inconsistently, but I fail to see how this is a reflection upon the test itself, rather than an indicator of the gutlessness exhibited all too often by the Court. All we are left with is that Lemon is supposedly bad jurisprudence for the sole reason that Scalia doesn't like it. Tough. If Scalia doesn't like having to deal with jurisprudence, he picked the wrong country in which to practice law. A closer look at Scalia's opinions, however, reveals that a marked lack of consistency on his own part. In the aforementioned post, Ed Brayton points out that Scalia has happily concurred with rulings based on a vague "history and tradition" argument, which rather puts the lie to his claim of being a "textualist." Similarly, Scott Lemieux at Lawyers, Guns and Money lists a number of opinions in which Scalia conveniently changed his argumentation from case to case to suit his personal preferences.
I would like to say Scalia is an idiot, but I cannot, in all honesty, claim that he is. He possesses an eloquence which simply is not achievable without a generous helping of intelligence. However, I do believe he exemplifies a statement made by Michael Shermer (publisher of Skeptic magazine) on an episode of Penn & Teller: Bullshit!, to the effect that: "Smart people are very good at rationalizing things they came to believe for non-smart reasons." Scalia may have convinced himself that he adheres scrupulously to the spirit of the Constitution, and he may have convinced quite a few Americans of that notion as well, but once we take off the rose-tinted glasses, it becomes readily apparent that he is simply pursuing a socially conservative agenda from the bench, and switches his position with regards to the Constitution and jurisprudence to whatever is required to support the conclusion which benefits his agenda. If anything, I'd say that with the passing of William Rehnquist last year, Scalia is probably the most "activist" judge on the Supreme Court today.
