The Supreme Court has become the most pro-religion since at least the 1950s, and it appears to include the six most pro-religion justices since at least World War II.
Yesterday’s decision striking down a Maine law that prevented taxpayer dollars from funding tuition for religious schools spurred a transformation that has been underway for decades. Since John Roberts became Chief Justice in 2005, the court has ruled in favor of religious organizations in orally argued cases 83% of the time. That’s far more than any court in the past seven decades — all headed by chief justices who, like Roberts, have been appointed by Republican presidents.
Yesterday’s decision pushed the victory rate for religious groups even higher, to 85%, said Lee Epstein, a law professor and political scientist at Washington University in St. Louis who spotted the trend for an upcoming Supreme Court review study she co-authored with University of Chicago law professor Eric Posner.
Today’s bulletin explains how the court came to prioritize religious freedom and what the Maine ruling suggests about the court’s future.
How we got here
How did the court end up with such a strong pro-religious majority? It is a story of selection and succession.
In recent decades, the rise of the religious right has made religious freedom a political priority for Republicans. This change has corresponded with the appointments by Republican presidents of judges who favor religious groups even more frequently than previous conservative judges.
Republican-appointed justices also have a better track record of timing their retirements to ensure a Republican president names their successor, as David Leonhardt writes in this newsletter. Roberts’ court includes judges more adept than their Republican-appointed predecessors at favoring religious groups, according to Epstein and Posner: Samuel Alito and Brett Kavanaugh — who benefited from timely departures — as well as Neil Gorsuch and Roberts himself.
Another trend has contributed: Republican presidents choosing successors to Democratic-appointed judges. Clarence Thomas, one of the court’s staunchest religious freedom advocates, replaced a liberal icon in Thurgood Marshall, as did Amy Coney Barrett, who took over as Ruth Bader Ginsburg’s seat in 2020. If Barrett shares the vision of her fellow conservatives on religious freedom — and yesterday’s ruling is the latest evidence she makes — it will further cement the pro-religious turn of Roberts’ court.
“The Roberts court was pretty pro-religious even before the Trump administration,” Epstein told me. “The trend will continue, if not accelerate.”
The Maine Affair
When the interests of governments and religious groups clash, the Roberts court tends to side with the religious groups. Yesterday’s decision fits this pattern.
The case, Carson v. Makin, was about a Maine program that allowed rural residents who lived far from a public school to attend a private school using taxpayer money, as long as that school was “sectarian-free.” Families who wanted to send their children to Christian schools challenged the program, arguing that the exclusion from religious schools violated their right to exercise their faith.
The court sided with them, saying Maine’s program amounted to unconstitutional “discrimination against religion.” Robert written for the majoritywhich included all Republican-appointed justices.
All three Democratic appointees to the court dissented. “This Court continues to dismantle the wall of separation between Church and State that the Framers fought to build,” wrote Judge Sonia Sotomayor.
Generally speaking, these rulings have allowed religion to play a much larger role in public life, my colleague Adam Liptak, who covers the court, wrote yesterday.
The court is considering a second religion case involving a former high school football coach who lost his job for praying on the 50-yard line after games. A decision is likely in the next few days.
“The court headed by Chief Justice Roberts has been and will continue to be exceptionally responsive to religious freedom claims,” Adam said.
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Back to the stars
When Times food critic Pete Wells brought his reviews back to fall 2020 after a pandemic hiatus, he left out one key element: star ratings. “The timing just wasn’t right for the stars,” Emily Weinstein, Times food and cooking editor, told The Morning.
But while New Yorkers return to dining with some regularity, stars are picking up too.
“As someone who always wants to know where to eat, I started to feel like there was a missing punctuation mark at the end of Pete’s reviews, no matter how beautifully written or brilliantly argued” , said Emily. “The stars are a service for our readers.”
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