Establishment Clause Appeasement

41 Pages Posted: 21 Feb 2020 Last revised: 7 Jul 2020

See all articles by Micah Schwartzman

Micah Schwartzman

University of Virginia School of Law

Nelson Tebbe

Cornell Law School

Abstract

In this Article, we ask whether some liberal justices have followed a strategy of judicial appeasement in recent cases involving religious freedom, especially under the Establishment Clause. We begin by specifying a conception of appeasement, which we define as a sustained strategy of offering asymmetric concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening an adversary to take more assertive actions. This conception is a general one, and to avoid confusion, we disclaim moral comparisons to historic instances. We then apply this conception to leading cases in three areas of doctrine: government religious speech (with special attention to the Bladensburg Cross case), state funding of religion, and religious exemptions. Across these cases, a pattern of decision-making has emerged that provides evidence of judicial appeasement by some liberal justices. We then argue that appeasement carries risks for worsening legal outcomes, legitimating bad decisions, and shifting the set of feasible constitutional options. In response, it might be objected that liberal justices are not engaging in appeasement but rather in strategies of compromise or cooptation. Although these alternatives have some plausibility, we argue that the pattern of decision-making in recent religious freedom cases should raise concerns about appeasement and the risks associated with it.

Keywords: appeasement, compromise, cooptation, Establishment Clause, First Amendment

Suggested Citation

Schwartzman, Micah and Tebbe, Nelson, Establishment Clause Appeasement. 2019 Supreme Court Review 271, Virginia Public Law and Legal Theory Research Paper No. 2020-17, Cornell Legal Studies Research Paper No. 20-12, Available at SSRN: https://ssrn.com/abstract=3541906

Micah Schwartzman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Nelson Tebbe

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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