The Fifth Circuit ruled, and we won unanimously. Van Orden then filed a petition for a writ of certiorari with the Supreme Court. A “cert petition,” as it is commonly called, is a formal request for the Supreme Court to review the decision of the lower court. Because the Supreme Court has what’s called a discretionary docket, it gets to pick most of the cases it will hear (there are only a handful of mandatory exceptions). To grant cert and hear the case requires the affirmative vote of four of the nine justices.
At that point, we had a strategic decision to make. And the decision tree we were facing was fraught with peril. Normally, the default position for anyone in our litigating position would be to oppose cert, for a simple reason: If the Court denies cert and you won below, then the case is over. You can take your victory home. And usually, the odds are with the side who opposes cert. Every year, the Supreme Court receives about 8,000 cert petitions, and it only grants about 80 (roughly 1 percent) of them.
But we were in a unique situation. I sat down with my boss, Texas Attorney General Greg Abbott, and we discussed the state of First Amendment law as it relates to these public displays of the Ten Commandments. Both of us were well aware that liberal activist judges across the country had been ruling against Ten Commandments monuments over and over again.
Whenever the Supreme Court considers a cert petition, the primary thing the justices look for is a “circuit split,” where multiple federal courts of appeal have considered the same question of law and ruled differently. The idea is that, to the extent possible, the law in the federal courts should be uniform across the country. So when there’s a split, that is a major reason for the Supreme Court to grant cert and resolve the issue for all the federal circuits.
On the issue of these Ten Commandments–monument displays, and on the issue of the Fraternal Order of Eagles monuments in particular, there was a real and live circuit split, which meant that if we succeeded in getting the Court not to take our case, the odds were high they would choose to grant cert on another Ten Commandments monument case shortly thereafter.
Given the depth and breadth of the split, I thought that the Court was on the verge of taking a Ten Commandments case. Moreover, I thought our case had the best facts to win. We had litigated the case carefully, with an eye toward ultimately prevailing before the Supreme Court. We did not have many of the “bad facts” that many of the other cases had, which amounted to politicians saying stupid things on the record that made defending the monument much harder.
Since our fact pattern was so much better, I believed that our case was the best case to reach the Court. If a worse case made it to the Supreme Court, those bad facts would potentially produce a binding national result, and the bulldozer would not be far behind in coming for our own Ten Commandments monument in Austin.
So I urged General Abbott to do something unusual: acquiesce to the cert petition. We told the Supreme Court we agreed that the split was real, wide, and deep, and that the issue was important. So we said that, if the Court were inclined to grant a case on Ten Commandments monuments, then this case presented an ideal situation to grant cert and affirm a permissible display of the Ten Commandments.
This course of action entailed risk because if the Supreme Court took the case and we lost, both Attorney General Abbott and I would have faced considerable criticism for acquiescing to the Court’s granting cert to begin with.
But I thought about what the great ancient Chinese military general Sun Tzu once taught: every battle is won before it’s fought. It’s won by choosing the terrain on which it will be fought. And our case presented the best terrain on which this particular legal issue could ever be fought.
The Supreme Court did end up granting cert. And at the same time, it granted cert in another Ten Commandments–monument case, McCreary County v. American Civil Liberties Union, coming out of Kentucky. The Court scheduled both cases’ oral arguments for the same day.
As it turned out, the lawyer representing Van Orden at the Supreme Court was one of the most acclaimed liberal constitutional scholars in the country, Erwin Chemerinsky. Chemerinsky is the current dean of the University of California, Berkeley School of Law, and he was formerly the founding dean of the University of California, Irvine School of Law. He represented Van Orden pro bono, which means for free. Over the years, I’ve gotten to know Chemerinsky quite well, and he and I have debated each other on questions of constitutional law multiple times. He’s brilliant and very much a man of the left.
The Supreme Court’s jurisprudence on religious displays in public is complicated, to say the least. As discussed, the Court has applied multiple and often conflicting standards, and for more than twenty years the Court’s religious-liberty jurisprudence often seemed to hinge on whatever Justice Sandra Day O’Connor deemed appropriate on any given day. On religious liberty, she was the quintessential swing vote, capable of going in either direction in almost any case. It was very hard, sometimes impossible, to reliably predict how she would rule.
In writing our Supreme Court brief, I spent hundreds of hours poring over Justice O’Connor’s Establishment Clause jurisprudence. Throughout our brief, we incessantly cited O’Connor and the standard(s) she had advocated. Indeed, I joked that I wanted “O’Connor, J.” to be the most frequent words in our brief—more common than “and” or “the.” A lawyer in my office asked if it was possible to be too obsequious to O’Connor in this case, and I replied, tongue in cheek, “No—if we could possibly put an oil
