APPELLATE courts are charged with correcting errors of legal interpretation in lower-court rulings; they are not supposed to meddle with the facts. Yet America’s final court of appeal, the Supreme Court, finds itself sorting through facts quite regularly, particularly in religion cases where "fact-sensitive" analyses are the norm. The justices do not always acquit themselves very well.
Over the past few decades, in sussing out violations of the constitution's ban on religious establishments, the court has found meaningful distinctions between a menorah and a nativity scene in a public holiday display (both are okay) and a stand-alone creche (verboten); it has said that the Ten Commandments violate the constitution when placed in a courthouse but are perfectly fine when installed outside a state capitol. In the ruling Continue reading