Strengthening Constitutional Self-Government

No Left Turns

Tooting my own horn

We scholars never do this, but, since Peter is out of town (here, perhaps?), I’ll have to engage in some shameless self-promotion. Desperate times call for desperate measures.

I’ve written a very long piece examining the publicly available evidence regarding John Roberts’s position on the First Amendment religion clauses. Did I mention that it is VERY LONG?

Here’s the relatively short conclusion:

A careful review of the publicly available evidence suggests that John Roberts has put his name to positions solidly within the mainstream of judicial interpretation of the First Amendment religion clauses. As seems to be the case in many other areas of law, he would be careful to stay within the proper bounds of judicial competence and be respectful of the role and judgments of the political branches. Above all, he would apparently continue and perhaps extend somewhat the Court’s tendency to look favorably on attempts to accommodate religious expression, not necessarily as a matter of judicially-enforced constitutional right, but rather as a matter of what might be called legislative grace. This deference and "judicial restraint" would require a rethinking of the Court’s Establishment Clause jurisprudence, continuing the move away from a mechanical application of the Lemon test and perhaps an abandonment of Sandra Day O’Connor’s "endorsement" test, in favor of a return to a focus on the traditional elements of establishment ("force and funds").

This would, of course, mark a change in the Court, just as Ruth Bader Ginsburg’s replacement of Byron White marked a change in the Court. Our first opportunity to see what sort of change will come in the next term, when the Court hears Ashcroft et al. v. O Centro Espirita Beneficiente Uniao do Vegetal, a case addressing a Religious Freedom Restoration Act-based challenge to the Controlled Substances Act. Will Roberts take the opportunity—as Sandra Day O’Connor did in her dissent in City of Boerne v. Flores—to call for a reexamination of the Court’s holding in Employment Division v. Smith, stare decisis to the contrary notwithstanding? Or will he likely follow Antonin Scalia in deferring to the legislative judgment of "compelling state interest" embodied in the Controlled Substances Act itself? We will see soon enough how he balances his apparent clear concern with religious liberty with his deference to the political branches.

I saw nothing in the seven briefs I read to dampen my enthusiasm for Roberts; if he believes what he wrote, he’ll generally vote with Scalia, Thomas, and Rehnquist. When Kennedy can be brought along for the ride (which is a somewhat more frequent occurrence than was O’Connor’s fellow traveling), there is a working majority on Establishment Clause cases.

Discussions - 2 Comments

Yea, but today I heard that Roberts (via his firm) provided pro bono work to have Colorado’s Amendment 2 (disallowing legislation specifically designed to recognize gay rights) overturned by the USSC. If true, that doesn’t inspire confidence...and that decision (which overturned the popular will of the people of Colorado) was such a nonsensical ruling.

I share your concern Dain. Does anyone have anymore info on that case? I would like to see how it unfolded.

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