These days, the Supreme Court presents itself as faithfully following the law, while it does pretty much whatever it wants. For example, it invokes tradition as a constraint on its discretion, while manipulating its meaning to avoid enforcing constitutional provisions it doesn’t like — such as the Establishment Clause.
In Kennedy v. Bremerton, the Court recently overruled the prevailing rule implementing the clause, a rule that forbade the state from endorsing any religion. It replaced that rule with a test so vague that nothing can confidently be said to violate it: “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” There must be “analysis focused on original meaning and history.” The law must “accord with history and faithfully reflect the understanding of the Founding Fathers.” None of this gives any lower court any guidance as to how to decide any case.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.