The East Wing and Justice Breyer’s Concurrence in Van Orden v. Perry

When I studied the First Amendment circa 2007, we struggled to reconcile two Establishment Clause cases decided on the same day. In McCreary County, the Court held that a display of the Ten Commandments posted on the wall of a courthouse was unconstitutional. And in Van Orden v. Perry, the Court held that a large stone monument of the Ten Commandments on the grounds of the Texas Capitol could remain. Justices O’Connor and Breyer cast the deciding votes in each case. In the latter decision, Justice Breyer worried what would happen if the people saw a large edifice on state property being demolished.

At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets’ text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U. S., at 717–729 (Breyer, J., dissenting).

The rule, as we learned it, is the Constitution permits taking down a piece of paper but does not permit demolishing a heavy stone monument.

This history makes me think of the pending East Wing case. According to the government, nearly 60% of the structure is already built. Let’s say the Supreme Court denies the stay. What happens? Would Judge Leon force the government to leave the partially-exposed construction zone on the White House grounds indefinitely? Would he order the government to close it up in some ad hoc fashion that he decides, but which fails to provide the intended defenses to the underground facility? Would he force the government to tear down all of the above-ground structures? What would that image convey to the American people who are already concerned that the judiciary is usurping our democracy? How would our foreign adversaries, who are planning attacks on the White House, see that act?

Enjoining an executive order is an abstract act that most people cannot understand. But ordering bulldozers onto the White House property to tear down a structure is something everyone can see. Indeed, I can see a world where those bulldozers are not allowed through the gate. Judicial supremacy has its limits. A court-ordered demolition of a White House national security facility, broadcast to the entire world, would be a Rubicon that should not be crossed.