For the second time this week, the justices are expected to issue opinions this morning, but they are unlikely to steal the thunder of one of the term's most high-profile cases: a religion clause challenge involving a 43-foot concrete World War I memorial cross on public land in Maryland. The case has drawn an outpouring of amicus briefs on each side. We focus on one in particular that charts a path away from the high court's multiple establishment clause tests. We also take a peek behind the end of the popular Supreme Court podcast First Mondays. Thanks for reading, and contact us anytime at [email protected] and [email protected].

Middle Road to a Constitutional 'Peace Cross'?

When the justices sit down later this morning to weigh the constitutionality of a 43-foot World War I memorial cross on public land, will there be another way—apart from their often criticized and debated establishment clause tests—to find an answer?

Walter Dellinger (above), professor emeritus at Duke University School of Law and an O'Melveny & Myers partner, and Martin Lederman of Georgetown University Law Center think so, and they offer, in an amicus brief supporting neither side, a middle lane for the justices.

A number of justices, most notably Justice Clarence Thomas, have chafed at the court's establishment clause tests: the three-part Lemon test, the coercion test, the endorsement test, the history and tradition test. Dellinger and Lederman say: Put them all aside.

In their brief, rich with historical and current examples, they argue there are “certain discrete contexts in which a state's display of religious symbols, including a cross,” might not violate fundamental establishment clause principles.

In particular, they point to the government's use of a religious symbol on the headstone, or as the grave marker, of an individual soldier, corresponding to the deceased's religion—a practice the military regularly does. They write in their amicus brief:

“For that reason, the Bladensburg Peace Cross may pass constitutional muster by virtue of an idiosyncratic characteristic of that monument—namely, that it memorializes 49 former residents of Prince George's County who were, in all likelihood, all Christians. Prince George's County was almost exclusively Christian during the First World War, and there is no evidence in the record that any of the memorialized soldiers were not Christian; that any of their family members ever registered complaints about the Cross; or that state officials have ever been presented with evidence that non-Christians are among those whom the Cross memorializes.”

Viewed in that way, Dellinger and Lederman contend, the cross is not seen as the state's expression of religion or ratification of the cross's messages, “but instead as a respectful representation of a fact about the religion of those being honored—something the Establishment Clause generally does not prohibit.”

Don't expect the advocates, however, to put aside the usual establishment clause tests, nor should they.

>> Hogan Lovells partner Neal Katyal, counsel to Maryland-National Capital Park and Planning Commission, argues the cross is constitutional because its purpose and objective meaning are secular and it fits in a long history and tradition of displaying crosses as war memorials.

>> Jones Day partner Michael Carvin, representing the American Legion, contendsthe cross is constitutional because it is not coercive, does not endorse religion and satisfies the 1971 three-part Lemon test. The acting U.S. solicitor general Jeffrey Wallagrees with all of their arguments.

>> Monica Miller of the American Humanist Association, which prevailed in the U.S. Court of Appeals for the Fourth Circuit, argues in her brief that the Lemon test (from Lemon v. Kurtzman) is the proper test and the cross fails because, as the appellate court wrote, it “endorses Christianity—not only above all other faiths, but also to their exclusion.”

In a term in which the justices appear determined to find unanimity or near unanimity in narrow rulings, the Dellinger-Lederman middle lane may be for some justices a safe and attractive path to a final destination.

What Comes After 'First Mondays'?

The announcement on Saturday of the sudden shutdown of the First Mondays podcast came as a shock to Supreme Court advocates and aficionados alike. Paul Weiss partner Kannon Shanmugam tweeted that the podcast “showed that you don't have to dumb down the work of the Supreme Court in order to provide entertaining and informative coverage.”

Launched in October 2016, First Mondays billed itself as “an entertaining podcast about the Supreme Court.” And that it was. Co-hosts Daniel Epps and Ian Samuel, both connoisseurs of Supreme Court procedure and minutiae, found that “deep in the weeds” was a fun place to be. The show sometimes went on the road, and even made news.

The podcast survived the sudden “leave of absence” last December by Samuel after Indiana University, where he taught, launched a Title IX investigation that involved him. Leah Litman, professor at University of California Irvine School of Law, took his place as co-host.

So why the abrupt downfall? Epps, professor at Washington University School of Law, suggested in a Twitter thread that the time and labor involved was overwhelming: “My Thursday nights and Friday mornings have been devoted to the podcast for too long. And I'll use that downtime for more reflection.”

Litman also tweeted sorrowfully about the news: “The show provided me with many wonderful opportunities, and I got to meet and make connections with so many amazing people as part of it.” She declined to elaborate. “I'm not really sharing any more than I've already said about the end of the show,” she told us.

So where will First Mondays listeners go for their audio dose of SCOTUS news and entertainment? We asked around on Twitter, and here are some of the responses:

>> Slate's Amicus pod, moderated by Dahlia Lithwick. >> The National Constitution Center's We the People podcasts. >> Heritage Foundation's SCOTUS101, and Federalist Society's SCOTUScast >> Some with more niche interests, like the National Security Law Podcast, The Ginsburg Tapes and the Institute for Justice's Short Circuit.

Please let us know if we missed any!

Supreme Court Headlines: What We're Reading

• U.S. Solicitor General Noel Francisco (above) told the U.S. Supreme Court on Monday that two precedents directing courts to defer to an agency's interpretation of its own ambiguous regulations should be significantly narrowed but not reversed. [NLJ]

• A Pennsylvania case is poised to become the vehicle for the U.S. Supreme Court to resolve a split among federal appeals courts over when the statute of limitations begins to run under the Fair Debt Collection Practices Act, our colleague Max Mitchell in Philadelphia reports. [NLJ]

• “A majority of the U.S. Supreme Court justices today took a skeptical view of a law that allows judges to put sex offenders on supervised release back in prison without juries finding they violated the law beyond a reasonable doubt.” [Bloomberg Law]

• The U.S. Supreme Court unanimously sided with the maker of dietary supplements that promised greater “sexual energy” and against a lawsuit on behalf of customers in a ruling over the timeliness of petitions to appeal of class certification orders, our colleague Amanda Bronstad reports. [The Recorder]