Prof. Joseph M. Knippenberg at the Ashbrook Center has now analyzed all of the religion clause briefs that Supreme Court nominee John G. Roberts participated in writing prior to his becoming a Circuit Court Judge. In his lengthy posting, John Roberts on Church and State: A Speculative Reconstruction, Knippenberg reviews the arguments set out in a number of the briefs and concludes:
"A careful review of the publicly available evidence suggests that John Roberts has put his name to positions solidly within the mainstream of judicial interpretation of the First Amendment religion clauses. As seems to be the case in many other areas of law, he would be careful to stay within the proper bounds of judicial competence and be respectful of the role and judgments of the political branches. Above all, he would apparently continue and perhaps extend somewhat the Court's tendency to look favorably on attempts to accommodate religious expression, not necessarily as a matter of judicially-enforced constitutional right, but rather as a matter of what might be called legislative grace. This deference and "judicial restraint" would require a rethinking of the Court's Establishment Clause jurisprudence, continuing the move away from a mechanical application of the Lemon test and perhaps an abandonment of Sandra Day O'Connor's "endorsement" test, in favor of a return to a focus on the traditional elements of establishment ("force and funds")."
