Read comments from scholars and other experts on the Supreme Court nomination of John G. Roberts.
Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law at the George Washington University Law School:
The Supreme Court has been divided into three camps on issues related to religion. The separationists include Justices Souter, Stevens, and Ginsburg. They consistently apply the separation-oriented Lemon test [a practice does not violate the establishment clause if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it fosters no excessive entanglement between government and religion]; they all voted in Zelman to invalidate the Cleveland voucher scheme; they all oppose direct government aid to sectarian entities; and they all voted to invalidate both of the Ten Commandments displays before the court this past term.
The group consistently opposed to the separationists includes Chief Justice Rehnquist and Justices Scalia and Thomas. They reject the Lemon test; they voted to uphold the Cleveland voucher program; they would permit direct aid to sectarian entities, even if the aid finances religious activity, as part of a religion-neutral program with secular purposes (e.g., the president's faith-based and community initiative); and they voted to uphold both Ten Commandments displays.
The middle group on the court has consisted of Justices Breyer, Kennedy, and O'Connor. None of these three votes consistently with either of the first two groups. For example, all three voted against permitting school-sponsored prayer at public school graduation; two (O'Connor and Kennedy) voted to uphold the Cleveland voucher program; all three have wobbled on the Lemon test; Kennedy would appear more supportive than the other two of the nonseparationist position on the faith-based and community initiative; and the three were spread across the court in the Ten Commandments cases (Kennedy voted to uphold both displays; O'Connor voted to invalidate both displays; and Breyer voted to uphold one but not the other).
It is impossible to predict with any accuracy how John Roberts will fit into these constellations. Interest groups on either side that rely on government briefs signed by John Roberts as evidence of what he would do as a justice are misleading the American people. Lawyers make arguments in briefs in an attempt to persuade courts, and sometimes just to signal their clients' other, nonlegal concerns. Although there is nothing in Roberts' background to suggest that he will be a separationist, the same was true of William Brennan, Thurgood Marshall, and John Paul Stevens (all three became ardent separationists). John Roberts could wind up in any of the three groups I've described, and no one can confidently predict how he will vote over time. Perhaps the fact that George W. Bush nominated him will create a sense of loyalty in Roberts re: the faith-based and community initiative, but even that claim cannot be asserted with any real confidence. I doubt if Roberts himself knows how he would vote on these issues; many fine lawyers and judges do not know until they are confronted with the responsibility to do so. At that point, the qualities of humility, intelligence, and respect for legal processes -- all qualities Roberts appears to possess -- will matter as much as or more than political ideology.