“For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts, Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.”  So writes Adam Liptak, the supreme court correspondent of the New York Times.

"They laugh alike, they walk alike, at times they even talk alike ..."

It’s not clear why this is such a good thing, although I suppose homogeneity becomes much more attractive when everyone looks a lot like you.  It is unlikely that the composition of the high court has ever been so uniform as it is today.  Not only are all nine justices former federal appellate court judges, four of them served on the same circuit bench.  Indeed, only Anthony Kennedy and John Paul Stevens served in federal courts outside of the Washington-Philadelphia-New York triangle.  Granted, with the addition of a woman and a black man, the court’s group photo no longer looks exactly like the fortieth reunion of a Princeton eating club, but it could be a class reunion photo for Harvard Law School — after all, five of the justices graduated from there.

This is a far cry from the days when there was, unofficially, a “New York seat” or a “southern seat” or a “New England seat” or even a “Jewish seat” on the supreme court (there’s still a “Catholic seat,” to be sure, but it’s currently being occupied by five of the nine justices).  More disturbing, none of the justices has ever served as a trial court judge, despite the fact that the supreme court routinely reviews the performance of those judges and determines whether they made the right decisions — decisions that the justices themselves have never had to make.  It’s rather like having a sport where none of the referees has actually played the game.

The Fraternal Order of Eagles (FOE), an organization founded in 1898, has been in the ten commandments racket since the early 1950s, when it handed out copies of the Mosaic law as part of its efforts to curtail juvenile delinquency. Thousands of the suitable-for-framing copies of the ten commandments, however, were evidently not making a significant dent in the ranks of juvenile delinquents, so the FOE decided that large granite monuments, plunked down in various governmental locations, would be far more efficacious. It seems, however, that no thought had been given to the possibility of dropping one of these massive monuments onto some of the most serious juvenile offenders, thus killing two birds with one stone, so to speak. Nevertheless, from about 1954 to 1985, as many as 4,000 of these monuments were deposited across the US, sometimes with help from the stars of the 1956 Paramount Pictures film epic The Ten Commandments, such as Charlton Heston (Moses), an early proponent, and Yul Brynner (Pharoah), who was apparently a late adopter.

The monument in question: nope, no religious expression here

Each of these monuments was like a constitutional time bomb waiting to explode in the nation’s courts. The problem is obvious: the establishment clause of the first amendment prohibits the government from setting up a state religion. Erecting a monument on government property that says something like “I AM the LORD thy God: Thou shalt have no other gods before me” tends to convey the message that the state is endorsing one particular religious viewpoint over all others, which is constitutionally suspect. But what if the government just passively allows a non-governmental organization, like the FOE, to erect such a monument? And what if that government doesn’t allow any other organization plop down a monument that displays a contrary religious message?

That’s the question that the supreme court encountered in the case of Pleasant Grove City v. Summum.

One of the talking points my friends on the right (real friends, not the McCain usage) bring up is concern over who Obama will appoint to the Supreme Court.  Obama made the following comments on his Supreme Court criteria

I would not appoint somebody who doesn’t believe in the right to privacy. But you’re right, Wolf, I taught constitutional law for 10 years, and I — when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the court. And part of the role of the court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.

Ricardo de los Santos Mora, a native of the Dominican Republic, entered the United States in 1991.  The following year, he was arrested by New York City police and charged with attempted robbery.  As set forth in the appellate court opinion, de los Santos Mora:

did not speak English at the time of his arrest, and the arresting officers did not speak Spanish. He was interrogated without an interpreter present, although he told police in Spanish that he did not understand and wanted to speak with somebody in Spanish. After appearing before a judge, plaintiff was appointed counsel who did not speak Spanish. Plaintiff was then, according to his allegations, “coerced into taking a plea without the benefit of an interpreter.” He was sentenced to six months’ incarceration and five years’ probation.

Vienna: More photogenic than the Vienna Convention

And thus began de los Santos Mora’s strange odyssey through the American legal system, a journey that will end some time during the recently opened Supreme Court term.  For de los Santos Mora, a citizen of the Dominican Republic, may have had the right under the Vienna Convention on Consular Relations to be advised by the police at the time of his arrest that he could have requested assistance from the Dominican consulate.  Or maybe not.  Or maybe he had that right, but the courts can’t do anything about it if local authorities ignore those rights.

First, some background: the US, along with a bunch of other countries, entered into the Vienna Convention, which, in Article 36, requires signatory states to inform arrested or imprisoned foreign nationals that they have the right to contact their own consular officials.  Under the constitution, treaties have the same force as federal statutes, which, pursuant to the supremacy clause, overrule any inconsistent state laws.  Thus, the states are required, in theory, to abide by the Vienna Convention.