On August 1, 2001, Alabama Supreme Court Chief Justice Roy Moore proudly unveiled a two-and-a-half ton, granite monument depicting the Ten Commandments.1 The evening before, under the cover of darkness and without the approval or knowledge of his eight fellow high court justices, Chief Justice Moore had moved the monument into the rotunda of the building housing the Alabama Supreme Court. The event was something of a triumph for the chief justice. As a state court judge, he had been the target of two American Civil Liberties Union lawsuits, which had attempted to prevent him from opening trials with a prayer and to force the removal of a small Ten Commandments plaque he displayed in his courtroom. Chief Justice Moore had managed to turn his notoriety from those lawsuits into a successful campaign as "the Ten Commandments Judge" that culminated in his election as chief justice and the prominent placement of his Ten Commandments monument. His victory, however, would prove to be short lived. Subsequent litigation forced the removal of "Roy's Rock" from the Alabama Judicial Building. The United States Supreme Court refused to hear his appeal, and Chief Justice Moore himself was removed from the bench by a judicial ethics panel for "willfully and publicly" flouting the order to move the monument from the state judicial building.
Chief Justice Moore's failed effort did not take the issue of Ten Commandments displays out of the public eye or the courts. The same day it rejected his appeal, the United States Supreme Court agreed to hear two other Ten Commandments display cases. On the last day of its 2004-2005 term, the Supreme Court ruled unconstitutional a pair of Kentucky displays, which had been inspired in part by Chief Justice Moore's early legal battles, but upheld a Ten Commandments monument on the grounds of the Texas State Capitol. The cases, which produced a total of ten opinions, mark a significant moment in church-state jurisprudence. They crystallized the deep divisions within the Rehnquist Court regarding the Establishment Clause's fundamental purpose and historical intention. The cases also brought forth significant but unannounced doctrinal developments. After discussing the relevant facts and lower court opinions of McCreary County v. ACLU2 and Van Orden v. Perry,3 this Article examines and evaluates the Supreme Court's Ten Commandments decisions, with particular attention given to the Court's use of the Founding Fathers and to the unannounced doctrinal alterations made in Establishment Clause jurisprudence. The Article also speculates as to how the Supreme Court might decide future Ten Commandments cases and other religious display cases in light of the appointments of Chief Justice John Roberts and Justice Samuel Alito to the bench. The future of Establishment Clause jurisprudence, the Article concludes, remains very much unsettled.
II. FACTS OF THE CASES AND LOWER COURT OPINIONS
A. McCreary County v. American Civil Liberties Union of Kentucky
McCreary County involved twice-revised Ten Commandment displays erected in two Kentucky county courthouses. The first displays, which were set up in the summer of 1999, consisted of large, gold-framed copies of an abridged text of the King James Version of the Ten Commandments.4 In November 1999, the American Civil Liberties Union of Kentucky sued the counties in federal district court, charging that the displays violated the First Amendment's Establishment Clause. Within a month and before the district court had responded to the ACLU's request for a preliminary injunction against maintaining the displays, the legislative body of each county authorized a second, expanded display. As directed by the resolutions, eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element, were added to the first display's framed copy of the Ten Commandments.5 After argument, the district court entered a preliminary injunction ordering that the "display . …