The Morning Report
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The Supreme Court weighed in on the Mount Soledad Cross today – one of the first legal glimmers of hope for cross supporters in some time – but attorneys in the case dispute the significance of the court’s announcement.
Justice Anthony M. Kennedy today issued a one-sentence ruling in the cross case. It reads as follows:
IT IS ORDERED that the enforcement of the order of the United Stated District Court for the Southern District of California, case no. 89-0820GT, issued on May 3, 2006, is stayed pending further order of the undersigned or of the court.
Right, but what does that mean?
In non-legalese, it essentially means that the May 3 decision by Judge Gordon Thompson, Jr. – that the cross must be removed from public land or the city will be fined $5,000 – has been put on hold.
Basically, Kennedy’s overruled Thompson until either he or the Supreme Court as a body make their next move on the cross. The city has sought to postpone the issuance of any penalties as it pursues appeals at the state and federal level that officials hope can preserve the cross atop Mount Soledad.
City Attorney Mike Aguirre seems to think it’s a significant move for Kennedy to make.
He said it’s unlikely that a Supreme Court justice, who’s been watching this case unfold for the last 17 years, would suddenly decide to step into the fray of this most controversial of cases without good reason. That Kennedy said anything is significant, Aguirre said in a press conference this afternoon, and that he ordered the stay should send a clear signal to the community.
“It’s not something that was done lightly, and I think it does suggest that it is more probable that the case will be heard than not.”
But, Aguirre continued:
“It doesn’t mean that it will be, and it is always a possibility that in going back over the applications, the law clerks and the justice may find something that’s not persuasive about it, that they didn’t anticipate originally.”
In other words, Kennedy could just turn around and change his mind – say he’s thought about it some more and he doesn’t actually think there’s merit in sending the case to the Supreme Court after all.
That’s what Jim McElroy, the attorney leading the charge against the cross, reads into Kennedy’s ruling. He said the wording of the judgment is notable because it doesn’t simply state that the stay has been granted. Rather, it says that a stay has been issued, pending further consideration of the case.
McElroy thinks that’s because Kennedy’s under pressure. The city’s application for a stay asked Kennedy to make an urgent decision by July 5. McElroy thinks the justice and his staff simply haven’t had time to consider the multiple briefs handed to them in this case, and needed to stall for a few days until they can make a full decision on whether or not to grant the stay.
He said there’s no reason why Kennedy should know much about the intricacies of this case.
“I don’t know if he’s ever been to San Diego. He doesn’t know the Mount Soledad Cross from the man on the moon,” he said.
McElroy is betting that Kennedy will be back with a full decision whether to grant the stay within a week or so.
It is, of course, possible that Kennedy could back out of his decision. Having considered the briefs before him, he could decide to scrub out the glimmer of hope he just handed cross supporters. That will leave the city and the cross back where they were yesterday, with less than a month to weigh their options for the future of the cross while they continue to petition the White House and Congress for an 11th-hour reprieve.