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

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