Justice O'Connor upholds five, strikes down five.That would certainly be consistent with O’Connor’s voting record. But it also raises the question of which five?
I’m reminded of a parliamentary debate round I judged a few years ago. The proposition team chose to run an opp-choice case (i.e., describing a situation and then allowing the opposition team to choose which side to defend). Their case statement was something like this: “You’re Moses. You’re walking down from Mount Sinai with the Ten Commandments, which God has just handed to you. Suddenly, your sandal catches on a root and you trip. As you fall, you realize you will only be able to save one tablet from getting crushed – either the tablet in your left arm with Commandments 1 through 5, or the tablet in your right arm with Commandments 6 through 10. You have just enough time to consider all the arguments to be presented in this debate. Which tablet do you choose to save?”
Interestingly, it turns out that commandments 1-5 actually differ thematically from 6-10 (at least in many versions). In a nutshell, 1-5 outline proper behavior of man toward God (no gods before me, no graven images, keep the Sabbath, etc.), while 6-10 outline proper behavior toward other men (no killing, no theft, no adultery, etc.). And this difference would actually provide the basis for O’Connor to split the difference as Balkin suggests! Only the first five commandments carry an overtly religious component. The latter five commandments don’t necessitate reference to God, and at least three of them still appear in the laws of most democratic countries. Arguably, then, posting commandments 6-10 in public courthouses would be consistent with the Establishment Clause, while posting 1-5 would not.