Utah Highway Patrol Assn. v. American Atheists, Inc.

Justice Thomas has written a dissent from a denial of cert that's well worth a read. I must say, however, that Justice Thomas is quite the optimist if he believes that the court had "an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles." To be sure, his dissent is wonderfully written and skewers a jurisprudence that has indeed gone "hopelessly awry." At the same time, however, it seems quite obvious to me that the reason for that shambles is that the court is deeply divided, and that accordingly, barring an Owen Roberts-style switchup, each establishment case that the court decides before new appointments bring a majority for one view of the clause or another can only make the law less clear not more. That has been the experience of the last three decades (as Thomas recounts), and it is hard to imagine why it would be different now. Until that's fixed, perhaps the best policy is for the court to avoid muddying the waters even further.