Antonin Scalia was appointed to the Supreme Court in September 1986 and served in that position until he died in February 2016. Over the course of his career he achieved great prominence andwas admired bymany.Onhis death a law schoolwas named in his honor and in 2018 hewas posthumously awarded the PresidentialMedal of Freedom.His slip occurred not in the kind of social interactions that Freud envisaged, but rather in an opinion of his that appeared in the official reports of the Supreme Court. All the Justices are served by a number of law clerks and it is fair to assume that the final version of this particular opinion was carefully reviewed by one of his law clerks. It is also fair to assume that all, or at least some, of his colleagues carefully read the opinion before it was formally issued. One, Justice Clarence Thomas, joined it. Justice Scalia issued this opinion in 2014 in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (known by the acronym BAMN ). This case arose when the state constitution ofMichigan was amended to prohibit publicly financed universities of the state from
{"title":"Scalia’s Slip","authors":"Owen Fiss","doi":"10.1086/718788","DOIUrl":"https://doi.org/10.1086/718788","url":null,"abstract":"Antonin Scalia was appointed to the Supreme Court in September 1986 and served in that position until he died in February 2016. Over the course of his career he achieved great prominence andwas admired bymany.Onhis death a law schoolwas named in his honor and in 2018 hewas posthumously awarded the PresidentialMedal of Freedom.His slip occurred not in the kind of social interactions that Freud envisaged, but rather in an opinion of his that appeared in the official reports of the Supreme Court. All the Justices are served by a number of law clerks and it is fair to assume that the final version of this particular opinion was carefully reviewed by one of his law clerks. It is also fair to assume that all, or at least some, of his colleagues carefully read the opinion before it was formally issued. One, Justice Clarence Thomas, joined it. Justice Scalia issued this opinion in 2014 in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (known by the acronym BAMN ). This case arose when the state constitution ofMichigan was amended to prohibit publicly financed universities of the state from","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"375 - 416"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41518977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations. A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past. We also explore other possible explanations. The Roberts Court has handed down a number of decisions that suggest a new approach to Court’s religion jurisprudence. The religion clauses of the First Amendment were once understood to provide weak but meaningful protection for non-mainstream religions from discrimination by governments that favored mainstream Christian organizations, practices, or values. The religion clauses provided little protection for mainstream religions—indeed, under the establishment clause, mainstream religion’s influence over government policy was restricted. Under the Roberts Court, the religion clauses have increasingly been used to protect mainstream Christian values or organizations that are under threat from secular laws or liberal constitutional protections. Or so it has been argued. Some legal scholars have denounced this apparent turn to the right, while others see only small changes that incrementally move the jurisprudence in a direction more faithful to constitutional values.2 It is always hazardous to claim a “transformation” in the law, especially in medias res. Ideological or jurisprudential disagreements can be lost in the complexities of the facts. The justices 1 Lee Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis; Eric Posner is the Kirkland & Ellis Distinguished Service Professor of Law and the Arthur and Esther Kane Research Chair at the University of Chicago. Epstein thanks the John Simon Guggenheim Foundation, the National Science Foundation, and Washington University for supporting her research on judicial behavior. We thank Aziz Huq for helpful comments, and Sima Biondi, Lina Dayem, Kelly Gregg, Kenny Mok, and Candice Yandem, for research assistance. The project’s website (http://epstein.wustl.edu/research/ReligionInCourt.html) will house a full replication archive, including the data and documentation necessary to reproduce all results. 2 See Erwin Chemerinsky and Howard Gillman, Symposium: The unfolding revolution in the jurisprudence of the religion clauses (SCOTUSblog, Aug 6 2020), archived at https://perma.cc/43BS-KQAS; Richard Garnett, Symposium: Religious freedom and the Roberts court’s doctrinal clean-up (Scotusblog, Aug 7 2020), archived at https://perma.cc/7P5E-HP4Z; Kim Colby, Symposium: Free exercise, RFRA and the need
罗伯茨法院做出有利于宗教组织的裁决的频率远高于其前任——超过81%的时间，而自1953年以来，所有前任的这一比例约为50%。在大多数情况下，获胜的宗教是主流基督教组织，而在过去，支持宗教的结果更倾向于少数或边缘宗教组织。一项统计分析表明，这种转变在很大程度上是最高法院人员变动的结果：罗伯茨法院的大多数法官在意识形态上保守，宗教上虔诚，这与过去有着重大的不同。我们还探讨了其他可能的解释。罗伯茨法院作出了一系列裁决，为法院的宗教判例提供了一种新的方法。《第一修正案》的宗教条款一度被认为为非主流宗教提供了微弱但有意义的保护，使其免受支持主流基督教组织、实践或价值观的政府的歧视。宗教条款几乎没有为主流宗教提供保护——事实上，根据确立条款，主流宗教对政府政策的影响受到了限制。在罗伯茨法院的领导下，宗教条款越来越多地被用来保护主流基督教价值观或受到世俗法律或自由宪法保护威胁的组织。有人认为是这样。一些法律学者谴责了这种明显的右倾，而另一些学者则只看到了一些微小的变化，这些变化使法学逐渐朝着更忠实于宪法价值观的方向发展。2声称法律的“转变”总是危险的，尤其是在媒体的报道中。意识形态或法学上的分歧可能会在事实的复杂性中消失。法官1 Lee Epstein是圣路易斯华盛顿大学的Ethan A.H.Shepley杰出大学教授；Eric Posner是芝加哥大学Kirkland&Ellis杰出服务法学教授和Arthur and Esther Kane研究主席。爱泼斯坦感谢约翰·西蒙·古根海姆基金会、国家科学基金会和华盛顿大学对她司法行为研究的支持。我们感谢Aziz Huq的有益评论，以及Sima Biondi、Lina Dayem、Kelly Gregg、Kenny Mok和Candice Yandem的研究协助。项目网站(http://epstein.wustl.edu/research/ReligionInCourt.html)将包含完整的复制存档，包括复制所有结果所需的数据和文档。2见Erwin Chemerinsky和Howard Gillman，研讨会：宗教条款判例中正在展开的革命（SCOTUS博客，2020年8月6日），存档于https://perma.cc/43BS-KQAS；Richard Garnett，研讨会：宗教自由和罗伯茨法院的教义清理（Scotusblog，2020年8月7日），存档于https://perma.cc/7P5E-HP4Z；Kim Colby，研讨会：自由锻炼、RFRA和宪法安全网的必要性（Scotusblog，8月1日
{"title":"The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait","authors":"L. Epstein, E. Posner","doi":"10.1086/719348","DOIUrl":"https://doi.org/10.1086/719348","url":null,"abstract":"The Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations. A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past. We also explore other possible explanations. The Roberts Court has handed down a number of decisions that suggest a new approach to Court’s religion jurisprudence. The religion clauses of the First Amendment were once understood to provide weak but meaningful protection for non-mainstream religions from discrimination by governments that favored mainstream Christian organizations, practices, or values. The religion clauses provided little protection for mainstream religions—indeed, under the establishment clause, mainstream religion’s influence over government policy was restricted. Under the Roberts Court, the religion clauses have increasingly been used to protect mainstream Christian values or organizations that are under threat from secular laws or liberal constitutional protections. Or so it has been argued. Some legal scholars have denounced this apparent turn to the right, while others see only small changes that incrementally move the jurisprudence in a direction more faithful to constitutional values.2 It is always hazardous to claim a “transformation” in the law, especially in medias res. Ideological or jurisprudential disagreements can be lost in the complexities of the facts. The justices 1 Lee Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis; Eric Posner is the Kirkland & Ellis Distinguished Service Professor of Law and the Arthur and Esther Kane Research Chair at the University of Chicago. Epstein thanks the John Simon Guggenheim Foundation, the National Science Foundation, and Washington University for supporting her research on judicial behavior. We thank Aziz Huq for helpful comments, and Sima Biondi, Lina Dayem, Kelly Gregg, Kenny Mok, and Candice Yandem, for research assistance. The project’s website (http://epstein.wustl.edu/research/ReligionInCourt.html) will house a full replication archive, including the data and documentation necessary to reproduce all results. 2 See Erwin Chemerinsky and Howard Gillman, Symposium: The unfolding revolution in the jurisprudence of the religion clauses (SCOTUSblog, Aug 6 2020), archived at https://perma.cc/43BS-KQAS; Richard Garnett, Symposium: Religious freedom and the Roberts court’s doctrinal clean-up (Scotusblog, Aug 7 2020), archived at https://perma.cc/7P5E-HP4Z; Kim Colby, Symposium: Free exercise, RFRA and the need","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"315 - 347"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45239804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reference Re Genetic Non-Discrimination Act: How to Make Space for Some Certainty","authors":"Hoi L. Kong","doi":"10.60082/2563-8505.1425","DOIUrl":"https://doi.org/10.60082/2563-8505.1425","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"34 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84307982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Of Dominant Tides: Desgagnés Transport Inc. v. Wärtsilä Canada Inc. and the Growing Acceptance of Provincial Jurisdiction in Maritime Matters","authors":"S. Hanley, Sean Pierce","doi":"10.60082/2563-8505.1419","DOIUrl":"https://doi.org/10.60082/2563-8505.1419","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"42 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76337689","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reading Regents and the Political Significance of Law","authors":"Cristina M. Rodríguez","doi":"10.1086/715475","DOIUrl":"https://doi.org/10.1086/715475","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2020 1","pages":"1 - 33"},"PeriodicalIF":2.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43764852","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Sidestepping the Charter, Again: Muting the Right to Habeas Corpus in Canada (Public Safety and Emergency Preparedness) v. Chhina","authors":"Jared Will","doi":"10.60082/2563-8505.1415","DOIUrl":"https://doi.org/10.60082/2563-8505.1415","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"23 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81508816","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Sexual Orientation and the Dynamics of Discrimination","authors":"D. Strauss","doi":"10.1086/715551","DOIUrl":"https://doi.org/10.1086/715551","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2020 1","pages":"203 - 227"},"PeriodicalIF":2.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42021860","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Introduction – 2019 Constitutional Cases at the Supreme Court: Up Close and in Person","authors":"S. Lawrence","doi":"10.60082/2563-8505.1410","DOIUrl":"https://doi.org/10.60082/2563-8505.1410","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"26 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86969217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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