The Waning of Constitutional Tests

By Mike Dorf

My latest Verdict column analyzes Justice Thomas's dissent from the denial of certiorari in Utah Highway Patrol Ass'n v. American Atheists, Inc.  Justice Thomas argues there that the Court should have granted review to reconsider its Establishment jurisprudence, in particular the "endorsement test" that has served as a gloss for some years now on the "Lemon test."  I note that (conservative) Justices have been criticizing Lemon for about two decades but that the Court has not formally overruled it.  I speculate that the reason, overlooked by Justice Thomas, is that the Lemon/endorsement test is superior to any of the likely alternatives.  Here I want to offer two other possible explanations for Lemon's staying power in its zombie state.

1) As a general matter, the Supreme Court just doesn't like to overrule its precedents.  They do it from time to time, but they prefer to distinguish, reinterpret, or pretend to follow but really ignore old precedents.  This has long been a feature of Supreme Court jurisprudence, indeed, of Anglo-American jurisprudence, but it has become more pronounced under the leadership of CJ Roberts because Roberts professes fealty to the passive virtues of judicial minimalism, even as he finds himself in ideological disagreement with various precedents inherited from more liberal times.  Accordingly, he and some of his colleagues hollow out the old precedents without fully overruling them.  Exhibit A here would be the taxpayer standing doctrine of Flast v. Cohen, which survives in name, but has been nearly overruled in practice.


2) The Supreme Court has become increasingly indifferent to the application of the multi-part, multi-stage "tests" that came to characterize its constitutional jurisprudence in the 1970s and 1980s.  Seen in this perspective, the Court's tendency to sometimes-apply/sometimes-ignore the Lemon/endorsement test is of a piece with similar trends in other areas of constitutional law.  Thus, Planned Parenthood v. Casey doesn't say that abortion is no longer a fundamental right but doesn't exactly apply strict scrutiny either; Romer v. Evans says that Colorado's Amendment 2 "defies" the Court's equal protection jurisprudence and so the Court strikes it down applying what commentators have sometimes called "rational basis scrutiny with teeth"; at the other end, the Court in Grutter v. Bollinger applies what it calls strict scrutiny, albeit in a way that is more deferential to government employing an assertedly benign racial classification than it applies in cases involving challenges to laws disadvantaging racial minorities; Lawrence v. Texas overrules Bowers v. Hardwick, which had held that same-sex intimacy is not a fundamental right, but Lawrence does not clearly state that it is a fundamental right; and District of Columbia v. Heller invalidates the District's handgun ban, criticizing the dissent's proposed application of rational basis scrutiny, while abjuring the need to specify the level of scrutiny it is applying, even while announcing a number of seemingly ad hoc conclusions about the constitutionality of various gun regulations not before the Court.

Perhaps the foregoing are isolated instances of the Court departing from principle, but these are all important, high-profile cases of the sort that appeared to be governed by, or that seemed to call for the formulation of, a doctrinal test. Yet in each -- and in satellite cases in both the Supreme Court and the lower courts -- questions about what test applies seem not to play much of a role, if any.

And note an oddity: Formal tests have come to play a decreasingly important role in the Court's constitutional rights jurisprudence during the very same period that textualism has come to play an increasingly important role in statutory cases.  Yet the reliance on rule-like tests and textualism are both versions of formalism.  Why would formalism wane in constitutional rights cases just as it has been waxing in statutory cases?

One possibility is to look at who's writing these decisions.  In all but one of the cases on my list, the majority opinion was written in whole or in part by Justice O'Connor or Justice Kennedy, and joined by the liberal bloc of the Court, with the conservatives in dissent.  The liberal bloc is less formalist in statutory cases as well.

That could be part of the story, but not all of it.  Justice Kennedy himself more often than not tends towards formalism in statutory cases and one of the most egregious cases on my list is Heller, with Justice Scalia writing the lead opinion for the conservative wing.

Another possibility is that the formalist Justices never thought that the old doctrine, with its multiple prongs and branches, was ever really rule-like.  Justice Thomas says just this in his Utah Highway Patrol Ass'n dissent.  He complains about the manipulability of the Lemon/endorsement test.  But in the cases cited (including Heller), the Court is not replacing malleable tests with more determinate tests.  If a somewhat malleable test is, well, somewhat malleable, then no test at all would seem to be more malleable still.

My own tentative view is more nearly the opposite of Justice Thomas's.  I think that the old tests were actually reasonably determinate, but that as the Justices found themselves increasingly unhappy with the results to which the tests led, they moved away from the tests.  Seen in this light, the problem with the Lemon/endorsement test is not its flabbiness but that, if taken seriously, it would require much more separation of church and state than the Court's conservatives can stomach.  Ditto along different dimensions and in different directions for the other cases and tests.