Supreme Court Review

Article Title

Establishment Clause Appeasement


Constitutional politics, like ordinary politics, has become increasingly polarized. This climate of conflict affects the Supreme Court along with the other branches of government. And with recent changes in its composition, the Court is not only more divided but also more clearly controlled by a majority of conservative Justices. Faced with sharper divisions and likely defeats, the Court’s more liberal Justices must make difficult choices. One option is simply to follow their considered interpretations of the Constitution. They can act on what they believe is the most justified conception of the law without regard to whether it exacerbates conflict. Another option is to behave strategically. Especially in cases where considerations of principle or precedent could support a range of outcomes, the Justices in the minority might take instrumental considerations into account. They could compromise, offering concessions in exchange for incremental progress. Or they could work to co-opt Justices who they believe may be willing to vote with them in future cases, offering them cooperation today in the hope of an alliance tomorrow. These strategies are fairly familiar. Yet the liberal Justices might follow another approach—they could engage in appeasement. In Part II, we define appeasement as a sustained strategy of offering unilateral concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening the other party to take more assertive actions. We recognize that any claim of appeasement carries powerful negative connotations due to the historical significance of the term. We disclaim any direct analogies to historical examples, but we retain the concept of appeasement because it is analytically distinctive and, for that reason, descriptively useful. No other concept identifies exactly the same strategy.

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