The Roberts Court Has Contracted, Not Expanded, Religious Rights

Linda Greenhouse has a column purporting to reflect on the Roberts Court’s first nine years that doubles as an occasion to offer the hope that Chief Justice Roberts will “moderate” in the next decade–a hope then despaired of at the end of the column.

She also says this:

It has been an eventful nine terms for the court and its chief. Samuel A. Alito Jr., Justice O’Connor’s eventual replacement, is well to her right and has provided Chief Justice Roberts with a reliable if narrow majority for the court’s steady regression on race and its deregulatory hijacking of the First Amendment. Along with ever-expanding accommodation of religious interests, these are the areas in which the Roberts court has made its increasingly predictable mark.

But on the issue of religious interests, Greenhouse is, I believe, mistaken, at least insofar as constitutional law is concerned. As I show in this article, the defining mark of the Roberts Court in the area of religious rights has been contraction, not expansion. One of the very cases cited by Greenhouse herself involving the religion clauses–Town of Greece v. Galloway–is much more plausibly conceived as a contraction of the Establishment Clause, not an expansion. The Court’s exercise of judicial review, the range of views among the Justices about religious rights, and the substance of the Clauses themselves–all of these, contra Greenhouse, have contracted over the last decade.

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