A Jesuit and Nine Justices: Environmental Protest as Protected Religious Exercise
Introduction: The Supreme Court and a Supreme Pontiff
In what Justice William Brennan Jr. referred to as “the most important principle of constitutional law,” “the rule of five” represents the number of votes needed to win in the Supreme Court. Footnote #1 content: See Lisa Heinzerling, The Rule of Five Guys, 119 MICH. L. REV. 1137, 1139 (2021) (describing an anecdote about Justice Brennan’s rule of five). Thus, Supreme Court advocates are ultimately tasked with convincing at least five Justices that their interpretation of the law is the correct one. Of course, the nine Justices are human beings with beliefs, experiences, and opinions, and despite arguments to the contrary, Footnote #2 content: See, e.g., Colleen Slevin, Chief Justice John Roberts Defends Legitimacy of Court, AP NEWS (Sept. 10, 2022, 2:18 AM), https://apnews.com/article/abortion-us-supreme-court-denver-public-opinion-john- roberts-6921c22df48b105cdff5fabdc6c459bb [https://perma.cc/528K-DUUA]; Joan Biskupic, Analysis: Supreme Court Justices Respond to Public Criticism with Distance and Denial, CNN (Sept. 13, 2022, 5:08 AM), https://www.cnn.com/2022/09/13/politics/supreme-court-public-criticism-distance-denial-roberts/ index.html [https://perma.cc/9NRW-B9JE]; Ariane de Vogue, Chief Justice Roberts Responds to Ethics Critics, ABC NEWS (Dec. 31, 2011), https://abcnews.go.com/blogs/headlines/2011/12/chief-justice- roberts-responds-to-judicial-ethics-critics [https://perma.cc/4PFN-PJ4X]. it seems plausible that these beliefs may influence their decisions. Footnote #3 content: See Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, in THE SUPREME COURT REVIEW 315, 321–22 (David A. Strauss et al. eds., 2022) (noting how Catholic Justices vote distinctly on death penalty, abortion, and religion cases). As compared to the Warren, Burger, and Rehnquist Courts, “pro-religion” outcomes in the Roberts Court have had a remarkable “win rate” of 83%. Footnote #4 content: Id. at 325. By contrast, pro-religion outcomes occurred in 46%, 51%, and 58% of cases in the Warren, Burger, and Rehnquist Courts, respectively. Id. The dataset includes all religion cases from 1953–2020. See id. The current Court has been described as “the most conservative” in generations, Footnote #5 content: Nina Totenberg, The Supreme Court Is the Most Conservative in 90 Years, NPR (July 5, 2022, 7:04 AM), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative [https://perma.cc/ CD6C-DPCX]. and it is also notably the most Catholic. Footnote #6 content: Epstein & Posner, supra note 3, at 328–29. Between five conservative Justices (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett) and Justice Sonia Sotomayor, six members of the Court are Catholic. Footnote #7 content: See Frank Newport, The Religion of the Supreme Court Justices, GALLUP (Apr. 8, 2022), https:// news.gallup.com/opinion/polling-matters/391649/religion-supreme-court-justices.aspx [https://perma. cc/9J2K-7BQ4]. Justice Neil Gorsuch is now Episcopalian but was raised Catholic. Id. Justice Neil Gorsuch is now Episcopalian but was raised Catholic. Id. Given the Court’s increasing hostility towards environmental laws Footnote #8 content: See, e.g., West Virginia v. EPA, 597 U.S. 697, 734–35 (2022) (holding that the Environmental Protection Agency (EPA) exceeded its authority in implementing the Clean Power Plan); Sackett v. EPA, 598 U.S. 651, 684 (2023) (limiting the Clean Water Act’s protection of wetlands). and extreme friendliness towards religious liberty, Footnote #9 content: See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 736 (2014); Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 584 U.S. 617, 639 (2018). See generally Marcia Coyle, The Justices’ Faith and Their Religion Clause Decisions, NAT’L CONST. CTR. (July 15, 2022), https://constitutioncenter.org/blog/the- justices-faith-and-their-religion-clause-decisions [https://perma.cc/GL2D-LEY3]. this Note proposes a Free Exercise Clause defense for pro-environmental protesters.
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