In recent months, the Supreme Court has begun to reverse decades of precedents and decades of tests used to judge laws on their constitutionality. Some of these precedents include landmark cases like Roe v. Wade, overturned in the Dobbs decision, and the public has responded negatively to these changes. Recently, trust in the nonpartisan nature of the court has diminished. The court has also recently ruled on other key issues like freedom of religion and freedom of expression.
In response to these current challenges, the New Hampshire Institute of Politics, in partnership with the Center for Ethics in Society, co-hosted a panel discussion on February 22, 2023, with constitutional scholars to discuss the evolution of the Supreme Court in the modern world. The panel had a range of expertise, including former New Hampshire State Supreme Court Chief Justice John T. Broderick, Villanova Law Professor Michael Moreland, and Saint Anselm Professor Christopher Galdieri. The event was moderated by University of New Hampshire Law Professor John Greabe.
Professor Moreland opened the conversation about the role of the Supreme Court and modern religious liberty. Moreland focused on different interpretations of the First Amendment’s establishment clause, which since the 1970s has had a shift in the way it was interpreted.
Moreland led by discussing the 1971 Supreme Court case Lemon vs. Kurtzman, which helped to establish the precedent of the “Lemon Test.” This is a three-part test used to determine if the government’s treatment of a religious institution constitutes “establishment of a religion,” which is prohibited under the establishment clause of the First Amendment. A statute must be “secular in purpose, must be neither to advance religion or inhibit religion and that the law must result in excessive government entanglement with religion.”
Moreland then discussed cases from after 2000 that have gone to lengths to avoid using the Lemon Test. One case that he brought up in his opening speech was Kennedy vs. Robertson 2022. The case involved an assistant high school football coach who was reprimanded for praying at the 50-yard line after games. The school suspended him because they believed he was in violation of the establishment clause. Moreland paraphrased Justice Neil Gorsuch’s majority opinion on this case saying, “Oh, by the way, this court long ago abandoned the Lemon and endorsement test.” Throughout his segment, Professor Moreland pointed out that precedents change over time.
Once the event shifted to the panel, the first question posed by moderator John Greabe was how the Supreme Court should handle its current criticisms. The first respondent was former Justice Broderick. Justice Broderick began by pointing out the causes of the criticism as being not entirely on the justices but rather the over-politicization of the court. He specified by talking about the justice’s confirmation process, “Most senators know before they begin that they’re going to win or they’re not going to win.” He claimed that senators use this opportunity to ask questions of the Supreme Court nominees for political gain, which is hurtful to the nomination process.
Broderick described his ideal Supreme Court Justice as keeping to themselves, not writing books, only keeping to thoughtful opinions and dissents, and not appearing publicly. He said the celebrity-seeking nature of Supreme Court Justices today is where much of the current criticisms derive from.
Professor Galdieri built off these points using the example of Merrick Garland’s nomination being blocked in 2016, the 2020 nomination of Amy Coney Barrett, and the new norms of politicizing the nominating process. Galdieri continued, “If you’re someone watching from the outside, it really looks like if you’re in power, you can use whatever rules you want to get someone on.
The next question was about if the court should avoid political issues. Justice Broderick said that gay marriage was an issue he assumed many courts would need to become involved in while reiterating the court’s partisan divide. Galdieri added onto that again, stating that as the court itself becomes more diverse, it would need to cover more politically diverse issues. Professor Moreland added that issues like voting rights and redistricting decisions have always been handled by the court and have been around for a long time. He asserted that the court has decided political issues for many years. This is not a new phenomenon.
All the panelists had their agreements and, at times, disagreements but clearly stated their respect for the court. Before the conclusion of the panel, the moderator John Greabe opened the panel to audience questions, all reiterating previous points made by the panelists.