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At the oral argument, however, Justice Antonin Scalia wanted to engage the ACLU’s lawyer on whether the cross was an establishment at all. Scalia wanted the lawyer to admit that the cross could be a commemoration of all war dead, not just Christian war dead:

Justice Scalia: “The cross doesn’t honor non-Christians who fought in the war?”

Mr. Eliasberg [Counsel for the ACLU]: “I believe that’s actually correct.”

Justice Scalia: “Where does it say that?”

Mr. Eliasberg: “It doesn’t say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that’s why the Jewish war veterans—“

Justice Scalia: “It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”

Mr. Eliasberg: “Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.” [At this point, the transcript just says “Laughter.”] “So it is the most common symbol to honor Christians.”

Justice Scalia: “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.”

Mr. Eliasberg: “Well, my . . . point here is to say that there is a reason the Jewish war veterans came in and said we don’t feel honored by this cross. This cross can’t honor us because it is a religious symbol of another religion.”25

According to reports of those present, Justice Scalia became visibly angry during the exchange. (Usually he gets laughs at the expense of attorneys, not the other way around.)26 He was angered by the suggestion that Jews would not feel honored by a Christian symbol, and he thought it was “outrageous” to argue that a cross could not honor the dead of other faiths.

Justice Scalia is not a humble man, and in this exchange he seemed to be flaunting a cultural blind spot. To him, crosses are the “most common symbol” of respect for the dead. But of course the reason he believes this is that we live in a majority Christian country, where most dead people have graves marked with Christian symbols. I doubt that Scalia would think it outrageous if Christian war dead did not feel honored by a war memorial erected in Israel using a Star of David. But to Scalia, a devout Roman Catholic, Christianity is the neutral position; it is the water and he is the fish.

Others on the Court sided with Scalia in this respect when the decision was released. The Court allowed the cross to stand. Justice Anthony Kennedy wrote a plurality opinion (meaning he won a majority for the result but not for his reasoning) noting that “although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.”27

The meaning of the cross in the Mojave Desert case is subject to cultural bias much as the word “no” was subject to cultural bias in the Berkowitz case. The problem for judges—especially cocky judges like Scalia—is that they readily see the cultural biases of others (“How can you say that the cross cannot honor all war dead? That’s outrageous!”) but don’t see their own.28

This lack of self-reflection is especially troubling in a judge. As law professor Don Braman noted about the case: “It may be cognitively difficult for someone with the cultural commitments of Justice Scalia to understand the cross as anything other than a universal symbol [of] profound respect, and to struggle with evidence to the contrary. But struggling with cultural blindspots is something we expect judges to do . . .