The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Don't Push A Pencil Through Lemon, Slice It In Half!
Will the Supreme Court finally overrule the Lemon test?
In the five decades since Lemon v. Kurtzman, there have been more puns about lemons that I could ever count. Perhaps the best barb came in Justice Scalia's Lamb's Chapel concurrence:
As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening thelittle children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, 505 U. S. ----, ---- (1992) (slip op., at 7), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.
Indeed, the Justice Scalia bobblehead depicts him shoving a pencil through a lemon.
Today during oral argument in Kennedy v. Bremerton School District, Paul Clement riffed on Scalia's dissent, and improved on it! Enjoy this colloquy between Clement and Justice Kavanaugh:
JUSTICE KAVANAUGH: Okay. And then, to pick up on Justice Gorsuch, the Lemon endorsement test, that has not been applied by this Court in several decades in cases like Van Orden, Town of Greece, American Legion. At least I've said I don't think there is such a test in our case law anymore, the Lemon endorsement test, correct?
MR. CLEMENT: Sure, but it's a --it --it's a stubborn --it's a stubborn fruit, and I don't think just pushing a pencil through it has done the trick. I mean, you really have to slice it in half and make clear to everybody--
Will Justice Kavanaugh merely jab another pencil into the stubborn fruit? And Justice Barrett? Or will they slice it in half, and make lemonade out of lemons? (Hopefully the last Lemon pun I'll have to make.)
