But the hypocrisy of the reasoning was apparent in deciding the case on ideological not constitutional grounds. In the opinion, written by Justice Kennedy for the majority, he wrote that the first amendment calls for a "middle ground policy of accommodation regarding religious symbols."
There is of course no mention of a middle ground on anything in the first amendment, and and the hypocrisy of the reasoning is brazen because conservatives, including those on the court, who rail against Roe v.Wade, do so because they say the basis for the decision -- that there is a constitutional right to privacy -- doesn't exist in the constitution.
Conservatives on and off the court have criticized Roe, or try to, on the grounds that the justices didn't strictly follow the constitution and insinuated themselves, legislating from the bench, and seeing things in the constitution that arent there. Conservating complain bitterly that liberal judges substitute their own judgement for what's in the constitiution. Yet that is just what happened in this decision. The 5 conservative members of the court did the very thing conservatives howl about -- legislate from the bench and Justice Kennedy's "middle ground of accommodation" is clearly substituting his judgement for what the Founders intended.
The conservative justices legal reasoning, as expressed in Kennedy's written opinion, that the crucifix has more than just a religious meaning is intellectually and factually preposterous. A crucifix has only one meaning and it is clearly and solely the symbol of Christianity and means nothing else. In the opinion of the 4 dissenting justices, that was made clear when they wrote that the first amendment explicitly forbade government endorsement of any particular religion and that the cross at Mojave was solely a symbol of Christianity.
To find that it was more than that,and therefore allowable, or that there is some "middle ground of accommodation" nowhere to be found in the First Amendment, the conservative wing of the court has given indication that they are apt to decide more cases on ideological grounds and do what conservatives loudly complain about when they believe liberals are doing it -- legislate from the bench.
Obama's next appointment to the court, expected to be a liberal, will not change the current balance on the court and so wouldn't have changed the outcome of this decision.
And so far Ann Coulter, who at one point publicly advocated the poisoning and killing of Justice Stephens for, in her opinion, legislating from the bench in a liberal opinion, hasn't yet made public whether she thinks the conservative justices should meet the same fate.