Commanding heights

Last week, the Supreme Court heard argument in two cases challenging the constitutionality of displaying the Ten Commandments in or near courthouses. Terry Eastland and Rich Lowry have excellent pieces on the subject. Neither expects that the Supreme Court’s rulings will make much sense, nor do I. The rulings likely will reflect Justice O’Connor’s (or maybe Justice Kennedy’s) policy preferences, and little more.
A moment of serious reflection should make it clear that putting up a statue representing the Ten Commandments does not amount to making a “law respecting an establishment of religion,” which is what the First Amendment prohibits. But 50 years of strained judicial thinking have clouded the issue to the point that the Justices seamlessly can decide these questions based on their policy preferences, not on what the Constitution says. This, presumably was the purpose of the strained judicial thinking. Thus, the freedom that the Supreme Court is most interested in preserving is not freedom of religion, but rather its own freedom to do whatever it wants.