Constitutional contraction: religion and the Roberts court.

• Author: DeGirolami, Marc O.

INTRODUCTION

Though John G. Roberts has been Chief Justice of the United States Supreme Court for only just more than nine years--less than the median tenure of eleven years for a Chief Justice (1)--time is ripe for an initial assessment of the Court's contributions to the law of religious freedom under his stewardship. Since the fall of 2005, (2) the Supreme Court has issued decisions or substantive orders in four cases directly (3) involving the religion clauses of the Constitution, (4) two cases primarily about the Speech Clause and indirectly involving the religion clauses, (5) three cases involving the Religious Freedom Restoration Act, (6) and one case involving the Religious Land Use and Institutionalized Persons Act (RLUIPA). (7) It has also declined to hear several cases about establishment and free exercise (occasionally accompanied by illuminating dissents from, or "statements" about, denial of certiorari), and these, too, suggest something about its general approach to this corner of the First Amendment. (8) So there are more than a few cases and a smattering of other data to peruse, reflect upon, and study. While there is inevitably something artificial about carving up the Court's jurisprudence by the tenure of a Chief Justice, (9) several interesting institutional and substantive patterns have already begun to emerge.

This Article argues that the most salient feature of the Roberts Court's first decade of jurisprudence on the religion clauses is its contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways.

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, and local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. (10) In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. (11) That distinguishes it from its two predecessors--the Rehnquist and Burger Courts--both of which exercised judicial review of federal, state, and local legislation and administrative practices more regularly. The Roberts Court's constitutional deference also largely contrasts with its statutory law and religion jurisprudence, where it has been more likely to rule against the government. Part I of the Article considers several possible explanations for this judicial-review asceticism. (12)

Second, contraction in the range of voting patterns in law and religion cases, or at least in the desire of the Justices to express their views in individual opinions. The votes of the Justices in law and religion cases reflect a recurring and yet rather unusual pattern: overwhelmingly the cases are either unanimous or split five to four, with comparatively few separate dissents expressing distinctive approaches, and with the split correlating with (if not due to) partisan political or ideological divisions. If the "liberal" wing of the Court joins its "conservative" counterpart, it almost always does so in a bloc rather than piecemeal. The contrasts with the voting patterns of prior Courts in religious freedom cases and the possible reasons for this bivalent distributional voting pattern are explored in Part II of this Article.

Third, contraction in the coverage of the religion clauses. As a substantive matter, the Court is narrowing the religion clauses. It has done little to indicate that it will depart from its free exercise holding in Employment Division v. Smith. (13) Indeed, with one possible exception, (14) every member of the Court seems now to accept that Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices about fundamental questions of interpretation and scope. Nevertheless, using a simple but effective four-part interpretive scheme-narrow free exercise, broad free exercise, narrow establishment, and broad establishment--the Article argues in Part III that the Court is moving steadily toward narrow interpretations of both clauses.

Of the three varieties of contraction, the last is the most speculative. Any complete explanation for the progressive contraction of the religion clauses is, at this point, premature. The Roberts Court has not yet decided enough religion clause cases to make a definitive statement about the trajectory of its jurisprudence. And, of course, significant changes in the composition of the Roberts Court may in turn reverse or otherwise modify any of these contracting tendencies. Nevertheless, without taking a hard position on the merits of constitutional contraction, this Article offers several explanations for the religion clauses' contraction in coverage. There is, in fact, a conceptual unity to the Court's approach, logical even if not inevitable: just as the Rehnquist Court narrowed the scope of free exercise in the Smith decision, the Roberts Court is gradually cutting away some of the doctrinal fat that has bloated the Establishment Clause over the past several decades. (15)

1. CONTRACTION OF JUDICIAL REVIEW

   The Roberts Court's asceticism with respect to judicial review is in part a function of the cases that it has agreed and declined to hear, and in part of how it has disposed of the cases that it has heard: discretionary review makes it necessary to consider both categories of cases. Yet by either measure, the Roberts Court has eaten an extremely lean diet. It has agreed to hear fewer constitutional challenges implicating the religion clauses than its predecessors: counting generously, it has heard seven such cases, while over a comparable period (1995-2005) the Rehnquist Court heard eleven cases bringing religion clause challenges (16) and the Burger Court (1976-1986) heard a whopping twenty-seven cases, most of them concerning the Establishment Clause. (17)

   Even more striking is that the Roberts Court has only once exercised the power of judicial review to strike down federal or state laws, policies, or practices as violating the religion clauses. Indeed, in two of its four Establishment Clause cases it did not reach the merits because it found lack of standing to bring a claim. (18) Even in those cases that are primarily about the Speech Clause--where the Court has otherwise been far more willing to strike down laws and policies as unconstitutional (19)--and only indirectly about religious freedom, the Court has held its fire. (20) The single law and religion case where the Court exercised judicial review to invalidate a law is Hosanna-Tabor Evangelical Lutheran Church v. EEOC, involving the ministerial exception to the reach of anti-discrimination laws as applied to religious institutions. (21)

   Judicial restraint has many meanings, but it is often conceived as a court's unwillingness to overturn state and federal legislation, policy, or practice as unconstitutional. Some scholars and others have insisted that the Roberts Court is by this measure an "activist" court, or even "extraordinarily activist." (23) As respects the religion clauses, this Article disagrees: the Roberts Court has in fact been considerably more restrained in this sense than both the Rehnquist and Burger Courts when it comes to religion clause jurisprudence. (24) In the Rehnquist Court's final ten years, it struck down state or federal laws, policies, or practices as (directly or indirectly) violating the religion clauses in four cases. (25) It is also worth noting that in its final decade, the Rehnquist Court agreed to hear more cases seeking to invalidate government laws, policies, or practices than the Roberts Court, even when ultimately it did not rule against the government. (26) A comparable analysis of the Burger Court in its final decade shows it to have been a great deal more aggressive than its successors in its exercise of judicial review as to the religion clauses: in 1985 alone, it struck down four state laws as violating the Establishment Clause; altogether it struck down laws, policies, or practices as unconstitutional under the religion clauses in fourteen cases. (27)

   Justice Rehnquist once objected to the "heavy First Amendment artillery that the Court fires at" "sensible and unobjectionable" legislation, (28) and the Roberts Court seems to have taken his criticism to heart. There are likely several explanations for the Court's preference for keeping its judicial review powder dry, but three stand out as especially plausible.

   First, the current Court's docket is much smaller than in years past: in the 2013 term the Roberts Court agreed to hear seventy-five cases, (29) where thirty years ago more than double that number would not have been uncommon. (30) Fewer cases overall may mean fewer cases seeking judicial review. (31) More importantly, there may not be anything unique about the religion clauses. As Keith Whittington has observed, the Roberts Court has in general been far more reluctant to exercise the power of judicial review to invalidate laws than any of its predecessors:

   Under Chief Justice Roberts, the Court has struck down statutes at an annual average rate of 3.8 cases, which is the fewest since before the Civil War (only the Gilded Age Courts are even close).... The Roberts Court has struck down federal law in fewer cases, on average, than any modern Court, with the exception of the immediate post-New Deal Courts. The change is even more striking in cases involving the invalidation of state laws. The Roberts Court has struck down state laws in fewer cases per year than any Court since the Civil War, by a significant margin. (32) Indeed, the substantial decline of judicial review involving the religion clauses from the Burger Court's last decade to the Rehnquist Court's last decade noted earlier (from fourteen to four) is also consistent with Whittington's claim that "ironically, the Rehnquist Court that was...