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28 Cardozo J. Equal Rts. & Soc. Just. 507 (2021-2022)
The Roberts Court's Transformative Religious Freedom Cases: The Doctrine and the Politics of Grievance

handle is hein.journals/cardw28 and id is 533 raw text is: THE ROBERTS COURT'S TRANSFORMATIVE RELIGIOUS FREEDOM CASES: THE DOCTRINE AND THE POLITICS OF GRIEVANCE Stephen M. Feldman' I. THE LIMITS OF RELIGIOUS FREEDOM BEFORE 1937........................... 515 II. RELIGIOUS FREEDOM AFTER 1937 (PRE-ROBERTS COURT)............... 519 A . E stablishm ent C lause.............................................................. 519 B . F ree Exercise C lause.............................................................. 525 III. THE ROBERTS COURT AND RELIGIOUS FREEDOM ............................. 529 A . E stablishm ent C lause.............................................................. 529 B . F ree Exercise C lause.............................................................. 539 IV. CONCLUSION......................................................................................555 Numerous commentators are speculating about where the new incarnation of the Roberts Court, with its solid bloc of six conservative justices, will take constitutional law.1 Will the Court resurrect the nondelegation doctrine, dormant since 1935, as a way to undermine the administrative state?2 Will the Court overrule Roe v. Wade and eliminate the right to choose abortion?3 The justices themselves have hinted in their opinions at potential dramatic changes.4 But in one area, First Amendment t Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. I Adam Liptak, New Supreme Court Term Could End Roberts's Dominant Role, N.Y. TIMES (Oct. 4, 2020), https://www.nytimes.com/2020/10/04/us/politics/supreme-court-roberts.html; Cass R. Sunstein, What's at stake in a new Supreme Court, BOSTON GLOBE (Sept. 19, 2020), https://www.bostonglobe.com/2020/09/19/opinion/whats-stake-new-supreme-court/; How Amy Coney Barrett Would Reshape the Court-and the Country, POLITICO (Sept. 26, 2020), https://www.politico.com/news/magazine/2020/09/26/amy-barrett-scotus-legal-experts-422028 (compiling comments from several constitutional law experts). 2 E.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (invalidating regulation adopted pursuant to National Industrial Recovery Act as violating nondelegation doctrine). 3 Roe v. Wade, 410 U.S. 113 (1973). Editor's Note: As of time of publication, the Court has announced its intention to overrule Roe. The author and the Cardozo Journal of Equal Rights and Social Justice stands firm in their belief that the right to an abortion is fundamental and protected by the Constitution. 4 See Food & Drug Admin. v. Am. College of Obstetricians & Gynecologists, _ S. Ct. _ (No. 20A34; U.S. Jan. 12, 2021) (order allowing reinstatement of restrictive rule on use of abortifacient pill); June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2142 (2020) (Thomas, J., dissenting) (arguing that 507

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