Instead, there was a string of last-day opinions, including two involving public displays of the Ten Commandments and one on internet file-sharing. And without comment, the high court declined to hear the case of two reporters, one from the New York Times and the other from Time Magazine, who have refused to testify before a grand jury in order to preserve the confidentiality of their sources.
As for Rehnquist he could, of course, still slip his resignation to President Bush later today or any other day—if he hasn't already. But he wasn't nearly as pivotal today as some might have expected. Rather, in a pair of decisions about public displays of the Ten Commandments, it was Justice Sandra Day O'Connor who proved once again that it is her departure that will provoke an intellectual and cultural war of the worlds in Washington—she is considered the next most likely to go, after Rehnquist. One decision centered on large displays of the Ten Commandments in two county courthouses in Kentucky, which had been challenged as being an impermissible breach of the separation between church and state. O'Connor's vote made the decision 5-4 against the displays because, the majority opinion said, the counties' motivation for the prominent showings seemed to be primarily religious.
The other case involved a vintage 1961 six-foot sculpture of the commandments donated with support from Cecil B. DeMille, director of the movie "The Ten Commandments." Standing in a park on the grounds of the Texas state capitol, the work is accompanied by 17 other statues and sculptures—a primary reason why it is acceptable, the court said. In that 5-4 decision, O'Connor sided with the minority that would have disallowed the Texas monolith.
The decisions show that the presence of religion in public life is an issue the court hasn't completely resolved and will likely continue to wrestle with. O'Connor's opinions place her on the wrong side of the discussion as far as religious conservatives are concerned, and they've also been vehemently critical of her votes in the court's abortion decisions, which have protected the core of Roe v. Wade.
The debate over the replacement of Rehnquist, though, if he goes, is expected to be extremely nasty, with tens of millions of dollars and a great deal of internet traffic devoted to each side's efforts.
In another case, the Court ruled against the Internet file-sharing service Grokster, pleasing the entertainment industry which argued that the technology encouraged theft of intellectual property. In the press case, New York Times reporter Judith Miller and Time correspondent Matthew Cooper have refused to tell a grand jury about their interviews with confidential sources in a case involving the leak of an undercover CIA operative's identity. A hearing in the case is scheduled Wednesday in federal district court in Washington, and the two reporters could face prison any time after that.