The Endorsement Test’s Early Years, 1983-1985: Notes from the O’Connor Files

Abstract

One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent.  Accordingly, now would seem to be an ideal time for scholars and court-watchers to consider whether Justice O’Connor’s approach to constitutional decision-making might in some ways be preferable to those that predominate today at the Court. The recent opening of Justice O’Connor’s files in the Library of Congress presents new opportunities for this type of inquiry.  Specifically, as detailed in this Essay, the files from the key cases between 1983 and 1985 involving the endorsement test reveal a justice who cared about legal principles but also about the real-world consequences of constitutional decision-making.  They show someone who thought hard about how to make the law better, who gave serious consideration to the views of others (her colleagues, her clerks, scholars in the field) but who was not afraid to strike out on her own, and who demonstrated substantial courage in the face of forces—particularly the Chief Justice of the Court on which she sat—trying to contain and limit her influence. 

Keywords: Establishment Clause, Endorsement Test, Supreme Court history, Lynch v. Donnelly, Wallace v. Jaffree, Justice O'Connor