Toto

From the Newswire:

<a href="http://www.cnn.com/2002/LAW/03/columns/fl.lazarus.commandments/index.html" target="_blank">Nine justices, Ten Commandments and two failed monuments</a>

(snip)

Kennedy's 'betrayal' of the conservatives in the graduation prayer case

Early in his tenure, Kennedy was a full-fledged member of the Rehnquist-led crusade to dramatically lower the metaphoric wall between church and state in cases involving the Establishment Clause. In 1992, however, Kennedy betrayed his more conservative brethren in a case involving the constitutionality of prayer in public school, Lee v. Weisman.

Before opinions are written, the justices, at conference, voice their initial views on pending cases. Justice Kennedy's initial view on Weisman was that 40 years of precedent should be overturned, and prayer in public school allowed. Four other justices agreed, making up a majority in favor of this view.

However, as Kennedy started to write the opinion on behalf of the majority, he had a change of heart. In the end, he switched sides and authored an opinion for a different 5-4 majority, which reaffirmed that prayer in public school violates the Establishment Clause.

It is said around the Court that Scalia has never forgiven Kennedy for this apostasy. And subsequently Kennedy has shown no enthusiasm for granting review in cases -- such as those involving the posting of the Ten Commandments, on schoolhouse walls or elsewhere -- that would reopen old wounds. Justice O'Connor is equally reticent about picking fights with her natural conservative allies.

. . .

As a result of Justices' Kennedy and O'Connor's disinclination to grant review of Establishment Clause cases, Justices Rehnquist, Scalia, and Thomas are consistently left one vote short of the four they need to grant review in cases that would give them a chance to attack current Establishment Clause doctrine. . .

Zimyatin

This is a good thing. I think gawd guided Reagan's decision of Kennedy. Hopefully Justice Stevens will stay in good health for the next several years so we can avoid a Bork-clone W. nominee.