This afternoon the Harvard ACS chapter sponsored a moot for the oralists in the two cases dealing with 10 Commandments displays that are on the docket this Term. Van Orden v. Perry was argued by Erwin Chemerinsky and McCreary v. ACLU of Kentucky was argued by David Friedman. The panel of "judges" consisted of HLS professors Minow and Fallon, visiting professors Ernest Young and Noah Feldman, BU professor Jay Wexler, and David Kravitz of Hanify & King. (apologies for the disjointed nature of my notes)
The panel was not terribly receptive to either oralist; they all thought that Chemerinsky would lose, and while four of six thought Friedman would win, they had harsh criticism for his arguments as well. All agreed that the case would be argued to a "bench of one" and that swaying O'Connor was the decisive factor.
Chemerinsky got bogged down in an elaborate argument of the innately sectarian status of any translation or culled version of the 10 Commandments and lost most of the panel on that issue right away. Nobody seemed to think that the reasonable observer would be able to parse the comparative Hebrew translations and draw the conclusion that a particular sect was being supported. One judge quipped that while he had never seen a "Judeo-Christian," the category was a created myth to bind us together as a nation, and the only potential way out of the box was to argue the exclusiveness of that tradition itself.
More judges were skeptical of the emphasis Chemerinsky put on the context of the monument. One judge, familiar with the actual turf being discussed, suggested that he downplay the geographical isolation of the monument because it didn't reflect the reality. Another was jarred by the suggestion that more religious representations would be better than having a single text (especially in light of the fact of McCreavy).
Fun facts: Athena (or the goddess of Justice) is atop the Texas State Capitol. The Mexican flag contains an ancient Aztec religious symbol and said flag is depicted in the Capitol as well.
Friedman's arguments also were savaged. After the panel got him to admit that under his analysis it would be unconstitutional for the government to quote from its own Supreme Court opinions, it got little better. He tried to draw a distinction between symbols and text, with text being more constitutionally questionable, but panelists said the case law doesn't support such a distinction and in fact has come down harder against symbolic displays than textual ones. In his effort to prevent the government from getting around the Establishment Clause by claiming everything is historical, Friedman ended up arguing that any link between a religious text and the political framework of the country was questionable. He also tried to argue that one could acknowledge religion without acknowledging a specific belief, but I wasn't sure how he thought you could do that. There seemed to be no good way to argue the case that didn't invlaidate only this display or this display with modification to remove the implication of the primacy of the 10 Commandments in American legal development.
All in all, the oralists ended up with suggestions for improving what didn't work, but their arguments undermined each other (especially the stress in Chemerinsky's on context when juxtaposed with the arguments that even with the carefully wrought context of the Kentucky display, the government still lost). I certainly hope that the real Court is not as ruthless as the panel - their reception does not bode well for either case, and while many panelists thought the Court wanted to "split the baby" by affirming both cases, they cautioned Friedman that he might potentially lose as well.