In April, the en banc Fifth Circuit upheld the constitutionality of Texas’s law requiring the posting of Ten Commandments in public school classrooms. For much of the past four months, I wondered whether the ACLU would take the risk of filing a cert petition. On the one hand, separationists must publicly state they will fight to the last stage to ensure there is no religion in the classroom. On the other hand, the Supreme Court could set a broader that would set back separationism far more than Kennedy v. Bremerton did. Why not just let Louisiana and Texas go to avoid setting a nationwide precedent. A conservative Fifth Circuit litigator told me he was certain the ACLU wouldn’t seek cert here. The move was just too risky.
Today, the ACLU filed a cert petition in the case.
Now the tougher question: does the Supreme Court have to grant cert? In the usual course, the Justices would always take a case of this significance that (arguably) deemed that Stone v. Graham was abandoned. Then again, the Court’s liberals may see a risk in taking this case, and vote to defensively deny cert. If so, would the Chief and Justice Barrett be eager to take the case? The conservatives may also grant to extend the Fifth Circuit’s precedent nationwide. But that grant may backfire if there is are five votes to preserve Graham.
The calculus here is not clear.
