Re-upping Appeasement: Religious Freedom and Judicial Politics in the 2019 Term

27 Pages Posted: 17 Sep 2020 Last revised: 23 Dec 2020

See all articles by Nelson Tebbe

Nelson Tebbe

Cornell Law School

Micah Schwartzman

University of Virginia School of Law

Date Written: September 17, 2020

Abstract

Are some liberal justices on the Supreme Court engaged in appeasement as a strategy of judicial decisionmaking? In prior work, we specified a conception of appeasement as a sustained strategy of offering unilateral concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening other parties to take more aggressive actions. Working with this conception, we have argued that recent decisions under the Religion Clauses—involving government speech, state funding, and legal exemptions—provide evidence that some liberals may be following a strategy of this kind. We also acknowledged the limitations of the evidence, and the possibility that these justices are pursuing other strategies, such as compromise or cooptation. Here we extend this analysis by examining the Supreme Court’s decisions concerning religious freedom from the 2019 Term, and we broaden our claim by asking whether justices are engaged in strategic compromises across constitutional doctrines involving not only religious freedom, but also reproductive rights and antidiscrimination law in the LGBTQ context. We express some skepticism about a developing narrative that the Roberts Court has reached a breakthrough in the culture wars, offering an alternative account that emphasizes asymmetric polarization and the possibility of judicial appeasement.

Keywords: appeasement, religious freedom, judicial decisionmaking, First Amendment, Supreme Court

Suggested Citation

Tebbe, Nelson and Schwartzman, Micah, Re-upping Appeasement: Religious Freedom and Judicial Politics in the 2019 Term (September 17, 2020). Virginia Public Law and Legal Theory Research Paper No. 2020-68, Cornell Legal Studies Research Paper No. 20-40, 2019-2020 ACS Supreme Court Review 115, Available at SSRN: https://ssrn.com/abstract=3694589

Nelson Tebbe

Cornell Law School ( email )

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

Micah Schwartzman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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