The religious right has made no secret of its expectation that President Trump will choose a socially conservative successor to the seat held by Ruth Bader Ginsburg. And the president will likely deliver, further confirming the power of the religious right.
The conservative legal movement, which at one time was libertarian in spirit, has been hijacked by the religious right. This religious version has left a deep mark on the Supreme Court under the leadership of Chief Justice John Roberts.
Mr. Trump’s recent 2020 edition of potential Supreme Court nominees included many lawyers and politicians known for their religious commitments and affiliations.
One is Senator Josh Hawley of Missouri, who complained last spring that religious conservatives had not actually played an adequate role in Mr. Trump’s selection process. He was incensed that Justice Neil Gorsuch wrote an opinion, in the Bostock v. Clayton County case, protecting gay and transgender employees from workplace discrimination.
And yet if Bostock was a defeat for religious conservatives, it was an unusual one — at least nowadays.
The numbers leave no doubt. Over the past several decades, the Supreme Court has decided dozens of cases involving the rights of religious individuals and organizations. We analyzed a large subset of those cases in which religious rights under the First Amendment were the primary issue being litigated. (Bostock, which involved the federal civil rights law, was not such a case.) From 1953 (the start of the Earl Warren court) to 2005 (the end of the William Rehnquist court), the Supreme Court ruled in favor of religious parties roughly 50 percent of the time. Under Chief Justice Roberts, that figure has soared — to almost 90 percent.
What accounts for this change? The current Republican-appointed justices, plus Antonin Scalia, whom Justice Gorsuch replaced. Before the Roberts court, justices appointed by Republican presidents voted in favor of litigants making religious claims 56 percent of the time; justices appointed by Democratic presidents voted in their favor 47 percent of the time. There was partisan disagreement, but at a moderate level.
By contrast, in the Roberts court, the voting patterns of Democratic-appointed justices as a group have not changed (still at 47 percent in favor of the religious party), but Republican justices have voted for religious parties 90 percent of the time.
Even more remarkable, of all the justices who have sat on cases since 1953, those who voted most often for the religious side belonged to the current conservative bloc on the court: Brett Kavanaugh (100 percent), Neil Gorsuch (100 percent), Clarence Thomas (94 percent), John Roberts (93 percent) and Samuel Alito (93 percent).
The liberals have been more diverse: Elena Kagan (73 percent in favor of the religious side), Stephen Breyer (61 percent), Sonia Sotomayor (29 percent) and the late Ruth Bader Ginsburg (21 percent). With Justices Sotomayor and Ginsburg at the bottom of the ranking, the Roberts court has been the most polarized on religious issues in the seven decades, and probably ever.
The numbers for the current Roberts court come with a caveat: The volume of cases is relatively low (ranging from four for Justice Kavanaugh to 33 for Justice Thomas), which reduces their reliability. Moreover, these numbers reflect only cases in which oral arguments were held and thus omit the two cases this year in which Chief Justice Roberts joined the liberal justices in upholding pandemic-related orders against religious challenges and another upholding abortion rights (it was not a First Amendment case, but conservative Christian organizations had a strong interest in it).
Still, the growth of partisan polarization on religious issues on the Roberts court is unmistakable. What is going on?
The conservative bloc on the Supreme Court sees the promotion of religious rights as a legitimate way to push back on the socially liberal rulings of the court. For over 50 years, conservatives have railed against rulings that have established constitutional protection for contraception, pornography, nontraditional family arrangements, abortion and the rights of sexual minorities, including the right to same-sex marriage.
During that time, the court recognized relatively weak constitutional protections for religious organizations, and those protections were focused on followers of non-mainstream religions who faced discrimination — dissenting Christians like Seventh-day Adventists as well as Jews and Muslims. Mainstream Christian groups often lost in disputes involving state funding for religious schools, prayer in schools and religious holiday displays on public property.
But the conservative justices seem to have realized that by strengthening religious rights under the First Amendment, they can both weaken the anti-religion precedents and make progress against the socially liberal rulings. Recent cases have strengthened the hand of religious schools that seek state funding and continued a trend of protecting religious organizations from state laws that offend their beliefs.
Justice Kagan memorably argued that the conservative majority had “weaponized” the free-speech clause of the First Amendment by extending its protections for political dissenters to corporations. The Roberts court is doing something similar with the religion clauses of the First Amendment, converting them from protections for religious dissenters to means for advancing conservative Christian values.
This jurisprudential move mirrors a broader trend in the country. Thirty years ago, conservatives were only slightly more religious than liberals. Today, both groups are less religious, but liberals are far less so.
This loss of religiosity among liberals appears to be connected to the promotion of a socially conservative political agenda by Christian groups. Finding themselves with less and less in common with their conservative coreligionists, liberals are leaving religion in droves.
The public is increasingly dividing itself into religious conservatives and secular liberals — and so is the court.
If Justice Ginsburg, who had the most secular voting record of any justice since 1953, is replaced with a religious conservative like Justices Kavanaugh, Gorsuch or Thomas, the court’s jurisprudence will veer even farther from the values she brought to the law.
Lee Epstein is a political scientist and law professor at Washington University. Eric Posner, a professor at the University of Chicago Law School, is the author of, most recently, “The Demagogue’s Playbook: The Battle for American Democracy From the Founders to Trump.”
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