The Catholic University of America

CUA Law Professor Robert Destro published an article entitled "The Court after Scalia: 'An establishment of religion'"
on SCOTUSblog. See below. See below. 

The Court after Scalia: “An establishment of religion”

From: SCOTUSblog
Date: September 12, 2016
Author: Robert Destro

Speculating on the impact that a newly appointed Justice will have on Establishment Clause cases is risky business. Justices must take care to preserve their independence and avoid making statements that might lead to reasonable questions about their impartiality, so asking how the newly appointed 113th Justice of the Supreme Court of the United States would define the phrase “an establishment of religion” is likely to elicit a polite, but firm, statement declining to speculate about the outcome of any hypothetical case that might come before the Court. Nonetheless, it is a question worth asking.

As I will explain below, a Justice – liberal or conservative – who accepts the post-Everson definition of the phrase will make no effort to put an end to the wrangling over the symbolic minutiae on which most Establishment Clause cases turn. A substantive response – even if only to concede that such an “academic” question raises serious questions – would be a strong indicator that the new Justice is an independent thinker who is likely to make a significant contribution to a body of law rightly ridiculed as “often puzzling,” “nebulous,” “Januslike,” “‘arbitrary,’ ‘illogical,’ and lacking in ‘comprehensiveness and rationality.’”

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Click here to view the article.

Robert Destro  

Professor Robert A. Destro's
Areas of Expertise

International Human Rights

Freedom of Religion, Speech,
and Association


For additional information about our professors' areas of speciality, see the Catholic University Experts page.