A Coup for Business, but What About Religion?

Continued from page 1

A number of cases turning on these principles were decided around the time he served in the Reagan and then Bush administrations, including the court's decisions finding no free-exercise right for a member of the armed services to wear religious headgear in contravention of military policy; to refuse to provide a Social Security number as a prerequisite to obtaining federal aid; and to avoid generally applicable state taxes on the sale of articles in commerce. The administrations defended the federal laws in question against free-exercise attack.

Roberts was in the Solicitor General's Office when the court decided Employment Division v. Smith--which held that Oregon's drug laws applied to state-paid drug counselors who used peyote as part of religious services-and re-affirmed the principle that there is no religious defense to generally applicable, neutral laws governing conduct. Chief Justice Rehnquist was in the majority in that decision.

Each of these decisions is remarkable, because the Supreme Court made it clear that while the Free Exercise Clause did not mandate accommodation, legislative accommodation could be permissible. In the military headgear and peyote decisions, Congress followed with just such a legislative accommodation. Thus, the court took the position that the First Amendment's Free Exercise Clause did not direct courts to carve out exemptions from neutral, generally applicable laws. Rather, courts should leave the lawmaking to the legislatures. Judge Roberts would cement the majority on the court that takes this view. On this score, Judge Roberts will be a dramatically different justice than fellow short-lister Judge Michael McConnell--who made his career advocating mandatory judicial accommodation for religious conduct--would have been.

Those Republicans advocating against "activist judges" and in favor of legislative lawmaking will find such a view consistent with their worldview, as do Chief Justice Rehnquist and Justices Stevens, Scalia, Kennedy, and Thomas.

But, in the end, none of the positions discussed here can fairly be attributed to him personally. They were all positions he took on behalf of clients. The record is remarkably free of his personal views. For that reason, he may be the stealth candidate of all time, which means no one can reliably predict the future with this particular candidate.