The Supreme Court heard vigorous arguments Wednesday morning in Salazar v. Buono, an Establishment Clause dispute over a Latin Cross that has stood for more than 70 years as a war memorial on federal land in the Mojave Desert. But for much of the hour, you might have been forgiven if you thought you were back in civil procedure class.
Led by Justice Stephen Breyer, the Court got mired in questions about the finality and appealability of injunctions like the one issued at early stages of the case enjoining the government from permitting the display of the cross. “Procedurally, this is a little boring,” Breyer acknowledged, but he dove right in. By the end of the discussion, it appeared that one of the big issues in the case — whether retired National Park Service employee Frank Buono had standing to challenge the cross — had evaporated, because the original injunction had decided in favor of standing, a determination the government did not appeal. Many commentators had thought beforehand that the case could be decided on standing, without reaching the church-state issue, but that path now seems unlikely.
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