The fifth volume of the Cato Supreme Court Review arrives during a transitional time on the Court, evidenced by the cacophony of conflicting predictions about where the Court, under its new chief justice, is headed. Will it be a “Kennedy Court,” dominated by the new Court’s new power-brokering swing vote, as Slate’s Dahlia Lithwick suggests;1 a humble, minimalist Court—the qualities prized by Chief Justice John Roberts; or something entirely unforeseen? This edition of the Review probes several points of doctrinal uncertainty and change—from the ongoing debate over executive and judicial power in wartime, to the aftermath of Gonzales v. Raich, to the internal debate among advocates of religious liberty over the direction of Free Exercise and Establishment Clause jurisprudence, to the scope of federal statutory preemption, the future of the exclusionary rule, and the politically and morally charged debate over capital punishment.
Nadine Strossen, the president of the American Civil Liberties Union, focuses on one example of change and uncertainty: the drift of the Court’s reading of the Establishment and Free Exercise Clauses. Specifically, her article, adapted from her 2005 B. Kenneth Simon lecture at the Cato Institute, argues that the Court in the last forty years has re-interpreted the Religion Clauses in a way that renders them redundant of equal protection principles by treating religious liberty as synonymous with the right to be free from religious discrimination. As a result, the Court has muddied the bright line between church and state and obscured the content of individual First Amendment rights to freedom of conscience in ways contrary, she argues, to the intent of the Framers.
*Editor-in-Chief, Cato Supreme Court Review.
1 Dahlia Lithwick, Swing Time, Slate (Jan. 17, 2006), available at http:// www.slate.com/id/2134421.