10/07/2024
White Christian Nationalism Enters the Political Mainstream: Implications for the Roberts Court and Religious Freedom
Published from Seton Hall University
(Excerpt from Seton Hall Law Review)
An increasing number of legal scholars and political scientists
acknowledge that, in most cases, Supreme Court decision-making is based on neither pure law nor pure politics. Rather, the Justices’ votes and the Court’s decisions arise from an uncertain amalgam of law and politics—a law-politics dynamic, we might say. Politics, though, is not static. The conservative politics of 1990 is not the same as the conservative politics of 2021, including in relation to judicial decision- making. Hence, while a conservative majority has controlled the Court since 1991, when Clarence Thomas replaced Thurgood Marshall. The ramifications of political conservatism for the Court’s decision-making have significantly transformed over the years.
This Article traces the evolution of conservatism during the late
twentieth and early twenty-first centuries and explores the implications of that history for the Court’s recent religious freedom cases, with a focus on Fulton v. City of Philadelphia. To be sure, changes in the Court’s personnel affect the politics of the Court’s decisions. Moving from a liberal icon, like Marshall, to an ultra-conservative, like Thomas, will inevitably change the politics of Supreme Court adjudication. The same can be said about the more recent transition from Ruth Bader Ginsburg to Amy Coney Barrett. Yet, one should not overlook the importance of less extreme transitions, such as the replacement of
the moderately conservative Sandra Day O’Connor with the arch-conservative Samuel Alito. Regardless, given that a conservative bloc has controlled the Court for thirty years, this Article is less concerned with the politics of individual Justices and more concerned with broader trends in conservative politics.
For instance, before 1991, conservatives often advocated for
judicial restraint: the Justices, according to this viewpoint, should have been deferring to the democratic process. If the Court was reviewing the constitutionality of a congressional action, to take one example, the Justices should refrain from substituting their own values for those of Congress. After 1991 and the establishment of conservative control of the Court, conservatives quickly lost interest in judicial restraint and
instead began advocating for “judicial engagement.” Conservatives, in other words, encouraged the Court to articulate and implement conservative values rather than deferring to the democratic process.
Still, though, what values were the Justices to articulate and
implement? In short, what did (and does) conservatism mean for the Court?
An increasing number of legal scholars and political scientistsacknowledge that, in most cases, Supreme Court decision-making isbased on neither pure law nor pure politics. 1 Rather, the Justices’ votes
