The Supreme Court denied cert. yesterday in a widely-discussed case revolving around whether a private organization could place memorial crosses at the location of fatal accidents along the highway. The case is Utah Highway Patrol Association v. American Atheists.

Justice Thomas filed a heated dissent from denial arguing that the Court should take the case in order to settle its widely-panned public display jurisprudence. Justice Thomas notes–and has been noting for some time–that the Court’s jurisprudence in this area is considered wildly disjoined by many of its critics and unappetizing to even its most passionate advocates.

I think there is a simple reason the Court denied cert.: the Justices knew this case wouldn’t resolve anything. In theory, this case gives the Court a perfect opportunity to clarify the issue, but after recent forays into the field failed to bring any clarity, there was little reason to believe that this case would bring any much-needed relief. If anything, another disjoined and badly fractured decision would be another egg on the face of an already embarrassed Court. Near misses like Pleasant Grove v. Summum and Salazar v. Buono have done little to convince the Court that this is an area of law that is going to be resolved anytime soon.

The conservatives on the Court do not have the votes to take this area of law in a clear direction, and they remain splintered within their own ranks. Justice Thomas has proven unwilling to compromise on the Establishment making a plurality opinion the best option available, assuming – and these are big assumptions – (1) that the Chief Justice and Justices Scalia and Alito could reach a common consesus, and (2) that Kennedy would join them. It is not hard to see why none of the conservatives on the Court want to touch this issue right now; there is no upside to this case beyond the remote possibility of a plurality opinion.

The liberals on the Court are marginally closer to reaching a consensus to rally around, but this case was an unsavory vehicle to crystalize that view. They might also be nervous about the outcome; Justice Ginsburg was never of fan of Justice Breyer’s quirky jurisprudence in this area and it may be too early to test Justices Sotomayor or Kagan. Justice Breyer would prefer to see his Van Orden decision percolate, and Justices Sotomayor and Kagan may be nervous about the case because Justice Kennedy’s vote could likely swing against them.

So what is the Court waiting for? That question is harder to answer. The Court may be hoping for the federal circuits to toy around with the idea and come up with a consensus on the matter, or the Court may simply be waiting for a change in membership that will lead it in the right direction. In the end, this was a well-done petition in a messy area of law. The Court has dabbled in the area quite a bit recently, however, and this petition doesn’t seem to be the vehicle for cleaning up the intertwined case law on the matter. Justice Thomas correctly noted that the Court has created clumsy precedent but, absent encouraging his colleagues to join his radical approach, he has not proposed a workable solution. In fact, his own inability to compromise may be halting progress more than anything else.


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