The No. 2 GOP lawmaker in the House predicted on Thursday that the Supreme Court will come down in favor of those defending a giant World War I memorial cross at the center of a blockbuster legal and cultural dispute over the role of religion in public life.
House Republican Whip Steve Scalise of Louisiana, who led a slate of 64 representatives defending the cross in a legal brief, said he is “very confident” that the justices will side in his favor.
He made his comments in a short interview by phone a day after the court heard oral arguments in the matter.
In a fiery debate over which religious symbols should be permitted on public land, a majority of the justices ultimately seemed sympathetic to keeping the Bladensburg Peace Cross on government property, though it was not clear how sweeping the court’s ruling, expected by late June, might be. The cross, located in a busy Maryland intersection, was erected in 1925, and that long history seemed to sway Justice Stephen Breyer, a possible swing vote.
“I feel very confident that we are going to get the right ruling,” Scalise said, noting that he and his fellow members are “very interested in seeing this case coming out our way.”
The case against the cross was brought by the American Humanist Association, which argued that the government’s role in maintaining the 40-foot-tall display was unconstitutional under the First Amendment’s Establishment Clause. In a speech delivered outside the courtroom following her argument, the humanists’ attorney Monica Miller said she was “really happy with the conversations in the court today.”
But Scalise said that after his staff reviewed the arguments, he was convinced the justices would side with the cross’s defenders. The Trump administration joined the American Legion and a Maryland government agency in arguing on Wednesday that the cross was constitutional.
“I still feel very confident that, when you look at the argument, that we are going to be successful in this case,” he said. He added “it should be a 9-0 decision,” though he acknowledged the vote will likely be more narrow.
The bench is currently divided 5-4 among Republican and Democratic appointees.
Gorsuch and Kavanaugh diverge
Scalise said he did not expect apparent differences in thinking between President Donald Trump’s two nominees to the bench, Justices Neil Gorsuch and Brett Kavanaugh, to amount to much in the final decision.
Gorsuch, during arguments, seemed peeved that those opposing the cross put the legal system in the business of “having to dictate taste,” while Kavanaugh appeared open to the idea that the display could be unconstitutional under the court’s current tests, and questioned the government about Jewish veterans’ complaints.
Scalise pointed out that “the way they ask questions is going to be different from justice to justice.”
The Louisiana Republican, who is a strong supporter of Trump’s Supreme Court picks and touts a 100 percent voting record with the Louisiana Right to Life Federation, also addressed Kavanaugh’s divergence with some of his fellow conservatives in votes connected to abortion.
Kavanaugh shocked some court watchers when he sided with the liberals and Chief Justice John Roberts in a December order that limited state efforts to defund Planned Parenthood. And, earlier this month, he was the sole conservative to lay out his reasoning for a vote that would have permitted a restrictive Louisiana abortion law to go into effect, and did so in a dissent that left open the possibility of blocking the law in the future.
Roberts, a George W. Bush appointee, went further though, voting with the court’s liberals to form a majority that halted the law from going into effect.
Scalise said he did not want to predict how the justices will come down on future abortion cases, but said that “ultimately the court is going to come back to this issue.”
“There will be a full hearing on this,” he said. “I just feel very confident that the law is on our side.”