What Justice Breyer’s retirement could mean for religious freedom

Breyer focused on finding opportunities to compromise. Will his successor do the same?

This article was first published in the State of Faith newsletter. Sign up to receive the newsletter in your inbox each Monday night.

Supreme Court Justice Stephen Breyer announced his retirement last week, a move that gives President Joe Biden his first chance to shape the future of the court.

Biden has reaffirmed his commitment to appointing a Black, female justice, which means that his decision will be historic no matter which specific person he picks. There have only been two Black justices since the court’s founding in 1789, and both of them were/are men.

However, you’re not alone if you’re feeling like Biden’s selection won’t matter much in the short term. The fact that a Democratic president is replacing a liberal, rather than a conservative, justice means that the overall ideological balance of the court won’t change.

Conservatives will maintain their 6-3 majority and keep the upper hand in debates over what cases to hear and how to rule. In many battles, liberals’ options will be limited to writing a scathing dissent or forging an unlikely compromise.

If you’ve followed my reporting on religious freedom cases in recent years, you’ll know that Breyer has been partial to that latter approach. He, as well as Justice Elena Kagan, often partner with their more conservative colleagues to rule in favor of people of faith.

I wrote about that trend last summer in an article that considered whether conservatives — or the court as a whole — are biased in favor of faith-related claims. I noted that Breyer and Kagan joined with conservatives nine of the 13 times the court ruled in favor of religious freedom from 2006 to 2020.

In doing so, Breyer and Kagan pulled the rest of the majority toward the middle. Their commitment to compromise helps explain why the court’s faith-related rulings are more often narrow and context-specific than shocking and broad.

When you consider Breyer’s legacy from this angle, Biden’s choice becomes more significant. The president has to decide whether he wants someone who will follow in Breyer’s path and seek compromises or promote liberal beliefs at any cost.

“A more-liberal nominee will make the court more conservative. A more middle-of-the-road justice can keep the court closer to the center,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston, to Politico.

In the same article, William Araiza, a professor at Brooklyn Law School, pointed out that if Biden chooses the first of those two paths it would increase the likelihood that faith-related rulings are split along ideological lines.

“(Breyer) was more willing than his fellow liberals to allow governments to display religious items, such as Ten Commandments monuments. A new justice more insistent on maintaining the church-state divide might vote against the government in cases where Breyer might have accommodated it, even if that change likely won’t prove decisive,” he said.

In other words, this might be the last term for a while that we see unanimous or 8-1 rulings on most religious freedom issues. Breyer is going to finish out the court’s current set of cases — including battles over spiritual advisers for death row inmates and government surveillance of Muslims — before beginning his retirement.


Fresh off the press


Term of the week: Muslim ban

Last Thursday marked five years since then-President Donald Trump first implemented a ban on travel to the U.S. from a handful of Muslim-majority countries. That ban, which is often referred to simply as the travel ban or Muslim ban, fueled protests at airports across the country and a legal battle that made it all the way to the Supreme Court.

The Trump administration amended the ban, including the list of affected countries, multiple times in response to pushback, but consistently argued that the policy was inspired by national security concerns rather than anti-Muslim bias. The Supreme Court accepted this claim in a 2018 ruling upholding the policy over the objections of a wide variety of civil rights groups and religious organizations.

Although President Joe Biden repealed the travel ban just hours after taking office in January 2021, it continues to affect Muslims in the U.S. and around the world, according to recent coverage from HuffPost. “Many families have not yet been reunited,” the article said.


What I’m reading ...

Participants in the March for Life that took place in Washington, D.C., earlier this month faced pushback from more than counter-protesters who support abortion rights. Several marchers reported getting into shouting matches with white supremacists and neo-Nazis who also support the anti-abortion cause. “How beautiful would it have been, if when these white supremacist groups come out here, organizing this little clump over on the sidewalk, if we were all screaming at them, ‘Get out! Get out! Racism has no place here!,’” said Destiny Herndon-De La Rosa about her March for Life experience to America magazine.

As I’ve mentioned before in this newsletter, prayer apps are a big business that’s getting bigger. Americans increasingly turn to virtual message boards to share their thoughts and concerns. In an illuminating (and somewhat horrifying) report, BuzzFeed News explores the privacy concerns created by this trend. Prayer apps are generally just as willing to sell user data as other types of apps, the article said.

Col. Khallid Shabazz is an Army chaplain, a Muslim convert and one of TikTok’s most unexpected stars. Religion News Service recently spoke with him about what brought him to the social media app and what it’s like to be a Muslim soldier.


Odds and ends

I’ve been playing (and loving) the computer game Wordle for more than three weeks now. It’s fun to have a brain teaser to look forward to each day and — as I realized while reading a recent Washington Post piece about the game — it’s also good for my soul.