Dear Walter and Dahlia:
It may strike you as ambitious for me to suggest similarities between the Ten Commandments and Grokster cases (though in a certain sense both are about the distribution of forbidden content). But reading your posts, I do think the cases have something in common and reflect a theme that is particularly strong over the last five years in the writings of O’Connor and Breyer.
The theme is respectability and etiquette. The O’Connor-Breyer view is that there are sometimes well-mannered and ill-mannered ways to do something—and that in hard cases, how you do things can make all the difference. It’s almost like the Miss Manners’ School of Jurisprudence—be polite and ask nicely, and you’d be surprised what can be done. This view of the law has gained surprising influence over the last five years, particularly in hard cases. Consider the Michigan affirmative-action cases, where the court, in essence, said that while quotas are unseemly, a little nudge and wink, done quietly and discreetly, is a respectable way to handle racial preferences.
Grokster turns on these ideas to a degree. The P2P companies were loud scofflaws, foreigners, and college students who blatantly encouraged illegal acts. KaZaA’s successor by contrast, Apple’s iTunes, may ultimately pose a greater threat to the recording industry, but it operates in a respectable way. Steve Jobs is a rebel with manners. And that has made all the difference.
The Ten Commandments cases are even more clearly centered on etiquette. You can talk about Lemon all you want, but in Van Orden everything seems to turn on the dull respectability of the stone tablets near the Austin State Capitol. Kentucky’s gold-framed courtroom commandments, on the other hand, have all the subtlety of Pat Robertson—they’re flashy, aggressive, and even rude. The contrast between loud and quiet religiosity may be the key to understanding the differing outcomes in Van Orden and McCreary County.
It may seem strange to court-watchers and American citizens that something akin to etiquette can decide cases. It certainly drives people like Justice Scalia up the wall—he thinks that rules are rules and that it is ridiculous to worry about manners in a serious case. But of course those from the etiquette school (while they’d never say so) think Justice Scalia himself ill-mannered and brash (not personally, but judicially). Using the power of judicial etiquette, they have successfully contrived to isolate Scalia’s views and mark them as inappropriate for the court to follow in important cases. There’s a lesson here. As Amy Vanderbilt herself might have said: As powerful as law may be, the power of good manners should never be underestimated.