

































!is paper addresses the biases that have appeared in the U.S. Supreme Court. Recent controversial cases such as 
Carson v Makin, Dobbs v Jackson, and Kennedy v Bremerton have shown a distinct divide in Supreme Court rulings. 
!is divide, along party lines, has been in"uenced by the justices’ political leanings, among other inherent biases. !e 
rulings in the aforementioned cases have led to the fall of the establishment clause, a vital constitutional protection 
separating church from state. !e potential rami#cations of blurring the line between church and state are enormous 
and hurts the legitimacy of the U.S. Supreme Court.

Aisthesis      Volume 15,  202424

!e Fall of the Establishment Clause: Bias & Originalism 
in the Supreme Court

by Benjamin Longren

Introduction
 In the historical ruling of Dobbs v Jackson, the 
U.S. Supreme Court went under intense scrutiny 
due to the unprecedented leak of court documents 
before its public decision, propelling the call for a 
code of ethics in the Supreme Court.1 !e Dobbs v 
Jackson decision brought attention to problems in 
the Supreme Court: long-standing biases, changing 
views, and a packed conservative supermajority on 
the bench at a politically unprecedented time.
 !e phrase “separation of church and state” 
does not directly appear in the First Amendment. 
However, it is the most widely used interpretation 
of the establishment clause: “Congress shall make 
no law respecting an establishment of religion”.2 !is 
clause states that the government will not declare an 
o$cial religion or favor or disfavor one religion over 
another.3

 Combined with the free exercise clause, it 
created a “wall of separation” between church and 
state.4 A wall that !omas Je%erson assured the 
Danbury Baptists with in 1802, whose purpose was 

1 Mary Clare Jalonick, “Senate Committee Approves 
Legislation to Impose Stronger Ethics Standards on Su-
preme Court Justices,” Associated Press News, July 20, 
2023, retrieved December 27, 2023, https://apnews.com/
article/supreme-court-ethics-senate-clarence-thom-
as-3e34958536ce4fa464b6%8cc1d71260. 
2 U.S. Const. amend. I 
3 Id. 
4 !omas Je%erson, “Je%erson’s Letter to the Danbury 
Baptists,” 1998. 

to protect a religious minority from prosecution 
by a new government.5 !is wall serves as a barrier 
preventing the government from exercising undue 
in"uence over Americans’ spiritual and religious 
beliefs, such as ending school-mandated prayer and 
prohibiting the government from forcing Americans 
to participate in religious activities.6 !e wall was 
further built upon by the Warren Court of the 1960s.7 
 In the 1950s and 60s, 98% of Americans believed 
in a God.8 At the same time, rulings such as Engel 
v Vitale determined that public school-mandated 
prayer to God was state-sponsored religion, violating 
the establishment clause.9 Furthermore, in Abington 
School District v Schempp it found that bible readings 
as part of a public-school curriculum was also in 
violation.10 In another case, Stone v Graham denied 
the ability to post the Ten Commandments in public 
schools due to it being “plainly religious in nature,” 
or in other words, a joining of church and state, 
thereby violating the establishment clause.11 !e 

5 Id.
6 David Callaway, “What Is Separation of Church and 
State?”, Freedom Forum,  https://www.freedomforum.org/
separation-of-church-and-state/. 
7 David Schultz, “!e Roberts Court takes aim at the Es-
tablishment Clause,” !e Hill, May 31, 2023.  
8 “How Many Americans Believe in God?”, Gallup, June 
24, 2022. 
9 Engel v. Vitale, 370 U.S. 421 (1962).
10 Abington School District v. Schempp, 374 U.S. 203 
(1963).
11 Stone v. Graham, 449 U.S. 39 (1980).



!e Fall of the Establishment Clause: Bias & Originalism in the Supreme Court

Aisthesis      Volume 15,  202425

Warren Court found that the establishment clause 
#rmly kept religion from state institutions, which, 
in balance with the free exercise clause, supported 
religious freedom. In Frank Sorauf ’s !e Wall of 
Separation, the cases above, as well as more than 
60 court-ruled opinions by the Supreme Court and 
federal appellate courts, used the establishment 
clause to strike a clear line in the sand between 
church and state.12 !e precedent of the last 50 
years has been a strong separation between religious 
freedom and its in"uence in the state. 
 However, the balance between the establishment 
clause and the free exercise clause may slowly be 
slipping. In recent prominent Supreme Court cases, 
such as Carson v Makin, Dobbs v Jackson, and 
Kennedy v Bremerton, today’s Supreme Court (the 
Roberts Court) seems intent on scrapping precedent 
and tipping the balance between the establishment 
clause and free exercise clause in favor of the court's 
interpretation of the free exercise clause. !is 
narrative began with former president Trump's 
appointment of Justice Gorsuch in 2017, Justice 
Kavanaugh in 2018, and Justice Barrett in 2020. !eir 
appointment led to implications of a pro-religion 
bias in the U.S. Supreme Court a&er its rulings in 
the aforementioned cases.13,14 !is “conservative 
super-majority” has, and will further, move the 
law in a more politically conservative direction.15 
In the conservative party, 88% of individuals are of 
some religious faith, while only 2% are atheist or 
agnostic.16 While there is no law stating political 

12 Frank J. Sorauf, !e Wall of Separation: !e 
Constitutional Politics of Church and State, (Princeton 
University Press, 1976). 
13  “Supreme Court Nominations,” U.S. Senate: Supreme 
Court Nominations (1789-Present). (2023), https://www.
senate.gov/legislative/nominations/SupremeCourtNomi-
nations1789present.htm (last visited 2023).
14 KineBritt E. Johnson, “One Nation Under Bias: !e 
In"uence of Religion Upon Supreme Court Decisions: 
Published by Lincoln Memorial University Law Review,” 
Lincoln Memorial University Law Review, Feb. 15, 2023, 
lmulawreview.scholasticahq.com/post/1807-one-nation-
under-bias-the-influence-of-religion-upon-supreme-
court-decisions.   
15 Id.
16 “Religious Landscape Study.” Pew Research Center’s 
Religion & Public Life Project, Pew Research Center, 12 
May 2015, www.pewresearch.org/religion/religious-land-
scape-study/political-ideology/conservative/. 

parties must be separate from state, the heavy bias of 
religion in the conservative parties means that when 
in"uencing policy and law, religion cannot remain 
entirely separate.

I. !e Narrative
 In the #rst of the three prominent religious 
cases, Carson v Makin addresses the issue of state-
paid tuition at private religious institutions.17 !e 
rural state of Maine does not have the capacity to 
provide a local public secondary school in every 
school district. !us, in those areas, it allows parents 
to designate a secondary school for their children to 
attend and supplements the cost of tuition. However, 
this assistance cannot be used towards a religious 
school, a restriction created to avoid a potential 
violation of the establishment clause, to respect the 
separation of church and state. !is restriction was 
declared unconstitutional, violating the free exercise 
clause of the First Amendment with a 6-3 ruling 
by the Supreme Court.18 Justice Roberts delivered 
the opinion in which !omas, Alito, Gorsuch, 
Kavanaugh, and Barrett joined; Breyer, Sotomayor, 
and Kagan represented the minority.19 
 In Roberts’ opinion, the court has “repeatedly 
held that a State violates the Free Exercise Clause 
when it excludes religious observers from otherwise 
available public bene#ts;” in this case, Maine was 
holding back tuition assistance to families enrolling 
in private religious institutions.20 By restricting 
access to tuition assistance, the Supreme Court ruled 
that Maine was violating the free exercise clause; 
this Supreme Court ruling, however, still resulted 
in support for state-sponsored religion. Breyer’s 
dissenting opinion states that the establishment 
clause cannot act to “aid one religion, aid all religions, 
or prefer one religion over another…[to] protect 
religious observers against unequal treatment” 
which is clearly violated in favor of the free exercise 
clause.21 In addition, the Supreme Court has never 
previously stated that a state must, not may, use 
state funds to pay for a religious education. !ese 
decisions were unprecedented before this case was 

17 Carson v. Makin, 596 U.S. (2022)
18 Id.
19 Id. 
20 Id. 
21 Id. 



!e Fall of the Establishment Clause: Bias & Originalism in the Supreme Court

Aisthesis      Volume 15,  202426

decided, but now in the Roberts Court it seems to 
have become the norm. !e case of Carson v Makin 
was a clear step towards a di%erent court, one that 
is #ne with breaking precedent and nudging stare 
decisis to the side. 
 Recently, the landmark case Dobbs v Jackson 
overturned the 50-year precedent of Roe v Wade 
in a 5-4 decision, with Alito delivering the opinion 
along with !omas, Gorsuch, Kavanaugh, Barrett 
and Roberts, a strikingly similar majority in the 
prior case.22 !is ended abortion as a constitutional 
right, which, when examining this court’s 
interpretation of the constitution, is an obvious 
result.23 !e interpretation of the constitution 50 
years ago found that in the 14th amendment under 
the due process clause, “no one shall be deprived 
of life, liberty, or property without due process of 
law,” there was an idea of substantive due process, 
and it held protection under the constitution for 
rights to abortion, Roe v Wade, and contraception, 
Griswold v Connecticut.24,25,26 !is is, in Justice 
Barrett’s words, “the court…identifying rights that 
the text [Constitution] does not make explicit” 
leading towards the conservative super majorities’ 
interpretation of the constitution, originalism.27 
Setting the idea of originalism aside, as well as 
the case of substantive due process, the decision 
of the court to overturn the ruling has taken o% 
another brick from the wall of separation that the 
establishment clause sought to build. 
 !e case brought by Dobbs was based on 
religious beliefs. In an article from !e Washington 
Post, a lead sponsor of the lawsuit, then-state Rep. 
Nick Schroer, said, “As a Catholic, I do believe 
life begins at conception and that is built into our 
legislative #ndings.”28 !e lawmakers pushing the 

22 Dobbs v. Jackson Women’s Health Organization, 597 
U.S. (2022)
23 Id.
24 U.S. Const. amend. XIV
25 Roe v. Wade, 410 U.S. (1972)
26 Griswold v. Connecticut, 381 U.S. (1965)
27 Amy Barrett, “!e 2023 Stien Lecture: U.S. Supreme 
Court Justice Amy Coney Barrett,” YouTube, 2023, 
video, https://www.youtube.com/watch?v=XCv6jwI-
w4Q4&t=2770s 
28 Ruth Marcus, “Does Dobbs Violate the Establishment 
Clause?”, !e Washington Post, January 20, 2023, https://
www.washingtonpost.com/opinions/2023/01/20/abor-
tion-dobbs-establishment-clause-sotomayor/  

case forward were open about their beliefs and 
pushed those beliefs on the entire nation. In Dobbs 
v Jackson, there is no apparent violation of the 
establishment or free exercise clause. Instead, it 
struck down the question of deciding when someone 
is alive by determining that the entire extent of Roe v 
Wade was incorrectly decided; in this way, it avoided 
the religious and philosophically contentious 
question in the court, a question that if decided, 
would violate the establishment clause. However, 
this retreat by the court gave each state the ability 
to decide when, if at all, abortion is constitutional. 
!is is an even more grievous mistake in violation 
of the establishment clause.29 !e question of when 
life starts is a profoundly religious belief, which 
every state will have to decide upon, each bringing 
their own beliefs, each favoring one religion over 
another. !e decision by the Supreme Court further 
violated the establishment clause in favor of the free 
exercise clause. Each state may interpret, when if at 
all, abortion should be legal, allowing for further 
in"uence of religious beliefs in the state.       
 Finally, in the case of Kennedy v Bremerton, 
decided 3 days a&er Dobbs v Jackson, the Supreme 
Court ruled yet again in favor of the free exercise 
clause.30 When the assistant football coach at a 
public high school in the Bremerton school district 
started to pray on the #eld a&er every football game, 
the district took steps to prevent the violation of 
the establishment clause. As the case made its way 
to the Supreme Court, Kennedy argued that it was 
within his rights, a claim that the court supported. In 
another 6-3 ruling, the Roberts Court had decided in 
favor of Kennedy and his free exercise claim. Along 
the same party lines, Justice Gorsuch delivered the 
court’s opinion with Roberts, !omas, Alito, and 
Barret joining and Sotomayor, Breyer and Kagan in 
the minority.31 !e decision reinstated Kennedy as 
a coach, a decision that was supported by Gorsuch’s 
opinion stating that “the First Amendment doubly 
protects religious speech” through the right 
of freedom of speech and religion.32 !e First 
Amendment, however, also provides protection 
from the in"uence of state-sponsored religion. 
In Gorsuch’s opinion, the establishment clause is 

29 Id.
30 Kennedy v. Bremerton School District, 597 U.S. (2022)
31 Id.
32 Id.



!e Fall of the Establishment Clause: Bias & Originalism in the Supreme Court

Aisthesis      Volume 15,  202427

overthrown due to this “double protection.” In the 
battle between the establishment clause and the free 
exercise clause, the decision in Kennedy v. Bremerton 
has now shown where the Roberts Court is heading. 
 While the fact that three separate court rulings, 
with almost the exact same justices voting for 
each, is startling, the establishment clause has been 
diminished in each of these cases. !e case for the 
separation of church and state seems to be lost on the 
current conservative court. Justice Sotomayor, in the 
dissent, comments on this trend: 

“[t]he Court now charts a di%erent path, yet 
again paying almost exclusive attention to the 
free exercise clause’s protection for individual 
religious exercise while giving short shri& to 
the establishment clause’s prohibition on state 
establishment of religion.”33 

!rough these past three cases, it is clear that the 
court is taking the opportunity to heavily in"uence 
the law in favor of religious ideals, giving up the 
tradition of respect to the establishment clause. Not 
one ruling went against those in the conservative 
majority. 

II. Originalism 
 Before addressing the interpretations that the 
justices have of the constitution, it is important to 
#rst #nd the reasons behind their interpretations by 
examining the source of values and beliefs that would 
in"uence each of the justices toward such a view. One 
article by Gallup, a prominent analytics and advisory 
company, reported each justice’s religious beliefs 
from their senate judiciary con#rmation hearings.34 
To make the inherent biases in each of their political 
beliefs more apparent, #rst the conservative super 
majority will be listed. Justice Roberts, !omas, 
Altio, Kavanaugh, and Barret are all currently 
Catholic, with Gorsuch raised as Catholic. !e 
liberal justices, as they have a more liberal tendency, 
are Justice Sotomayor who is Catholic, and Kagan 

33 Id.
34 Frank Newport, “!e Religion of the Supreme 
Court Justices,” Gallup, April 2022, https://news.gal-
lup.com/opinion/polling-matters/391649/religion-su-
preme-court-justices.aspx  

and Breyer are Jewish.35 It is interesting that on the 
Supreme Court today, 7 justices are Catholic and 2 
are Jewish. However, what cannot be ignored is that 
the conservative, Catholic, supermajority has ruled 
along party lines in quick succession; in less than a 
week Carson v Makin, Dobbs v Jackson, and Kennedy 
v Bremerton were all decided in favor of the free 
exercise clause. 
 !is brings us to the Roberts Court’s interpretation 
of the constitution. Focusing on the conservative 
supermajority, the idea of originalism is at the 
forefront. As Justice Barrett succinctly described in 
the Stein lecture at the University of Minnesota’s law 
school, originalism, or adhering exactly to what the 
Constitution says, is the interpretation that many of 
the conservative justices subscribe to. !is view looks 
at the Constitution for what it says directly and what 
the founders would have thought of the Constitution 
at the time.36 Consequently, this view also aligns with 
the conservative Catholic justices’ personal religious 
beliefs and belief in deeply rooted tradition.
 In a modern era that has had more change, 
technologically and socially, than any other era in 
history, interpretations of the Constitution must 
serve as support for the justices in determining the 
rules of the nation. Without an interpretation of the 
constitution in the Supreme Court that can keep up 
with the rapid change of our society, then the laws 
set upon every American will represent only some of 
those Americans, not all. 
 In the Roberts Court, the wall of separation 
is quickly fading into memory. !e 50 years of 
precedent have had little in"uence on today's major 
rulings. !e court has ruled in favor of religious 
beliefs in each of these cases, with the conservative 
super majority "exing its muscles as it pushes 
through pro-religion rulings in Carson v Makin, 
Dobbs v Jackson, and #nally Kennedy v Bremerton. 
!e ruling and subsequent rulings in each of these 
cases broke down the wall of separation created 
by the establishment and free exercise clause.  !e 
balancing act that Justice Breyer supported between 
the establishment and free exercise clause has not 

35 Id.
36 Amy Barrett, “!e 2023 Stien Lecture: U.S. Supreme 
Court Justice Amy Coney Barrett,” YouTube, 2023, 
video, https://www.youtube.com/watch?v=XCv6jwI-
w4Q4&t=2770s



!e Fall of the Establishment Clause: Bias & Originalism in the Supreme Court

Aisthesis      Volume 15,  202428

just shi&ed due to the recent rulings, it has become 
entirely unbalanced, leaning toward religious views 
from the court and now in the law. In her dissenting 
opinion, Justice Sotomayor re"ected that “[t]oday, 
the Court leads us to a place where separation of 
church and state becomes a constitutional violation” 
exemplifying that the line between church and state 
has become erroneously blurred.37 
 !e Supreme Court has slowly but surely been 
moving towards a pro-religion stance. !is can be 
seen from the recent rulings in Carson v Makin, 
Dobbs v Jackson, and Kennedy v Bremerton, all of 
which support the pro-religion court. In each of these 
cases, rulings were divided along party lines, where 
the majority was made up of the conservative party 
in every case. Since the nomination and con#rmation 
of the three recent conservative justices, the Roberts 
Court has willingly started down the path of pushing 
the establishment clause to the side. !e wall of 
separation (stated by Je%erson) has and will further 
start to crumble if nothing is done to correct this 
path. However, a recent publishment by the justices 
of their once uno$cial code of ethics shows e%ort 
towards nonpartisan rulings.38 
 In future cases, the Roberts Court will have the 
opportunity to show that politics does not control the 
Supreme Court. !ese chances are already coming, as 
a lawsuit has been #led in Oklahoma over the state’s 
funding of a private religious charter school, a case 
that, if brought to the Supreme Court, will de#ne 
the separation of church and state for the foreseeable 
future.39 In addition, the #ght over abortion pill 
access which a%ects millions of people is already on 
the docket.40 !e pillar that the Supreme Court stands 
on is one that is not in"uenced by outside forces, but 

37 Kennedy v. Bremerton School District, 597 U.S. (2022)
38 Statement of the Court (2023), https://www.supreme-
court.gov/about/Code-of-Conduct-for-Justices_Novem-
ber_13_2023.pdf (last visited 2024).   
39 Moriah Balingit, “Okla. board moves forward with 
nation’s #rst religious charter school,” !e Washington 
Post,  October 9, 2023, https://www.washingtonpost.
com/education/2023/10/09/oklahoma-religious-char-
ter-school-contract-approved/ 
40 Abbie VanSickle, “Supreme Court Will Hear Challenge 
to Abortion Pill Access,” !e New York Times, December 
13, 2023, https://www.nytimes.com/2023/12/13/us/su-
preme-court-abortion-pill.html.

one that interprets the law faithfully. !e opinions 
of the justices have shaped the court into what it is 
today which has seen to the fall of the establishment 
clause. 
      
Bibliography
Abington School District v. Schempp, 374 U.S. 203 

(1963).

Balingit, Moriah. “Okla. Board Moves Forward 
with Nation’s First Religious Charter School.” !e 
Washington Post, October 9, 2023. https://www.
washingtonpost.com/education/2023/10/09/
oklahoma-religious-charter-school-contract-
approved/.

Callaway, David. “Separation of Church and State: 
De#nition, History and More.” Freedom Forum, 
October 2, 2023. https://www.freedomforum.
org/separation-of-church-and-state/.

Carson v. Makin, 596 U.S. (2022)

Dobbs v. Jackson Women’s Health Organization, 597 
U.S. (2022)

Engel v. Vitale, 370 U.S. 421 (1962).

Gallup. “How Many Americans Believe in 
God?” Gallup.com, June 24, 2022. https://news.
gallup.com/poll/268205/americans-believe-god.
aspx#:~:text=In%202022%2C%2081%25%20
say%20they.

Griswold v. Connecticut, 381 U.S. (1965)

Jalonick, Mary. “Senate Committee Approves 
Legislation to Impose Stronger Ethics Standards 
on Supreme Court Justices.” AP News, July 20, 
2023. https://apnews.com/article/supreme-
court-ethics-senate-clarence-thomas-3e3495853
6ce4fa464b6%8cc1d71260.

Johnson, KineBritt. “One Nation under Bias: !e 
In"uence of Religion upon Supreme Court 
Decisions.” Lincoln Memorial University Law 
Review, February 15, 2023. https://lmulawreview.
scholasticahq.com/post/1807-one-nation-
under-bias-the-influence-of-religion-upon-
supreme-court-decisions.



!e Fall of the Establishment Clause: Bias & Originalism in the Supreme Court

Aisthesis      Volume 15,  202429

Kennedy v. Bremerton School District, 597 U.S. 
(2022)

Library of Congress. “Je%erson’s Letter to the 
Danbury Baptists (June 1998).” Library of 
Congress Information Bulletin. Loc.gov, January 
1, 1802. https://www.loc.gov/loc/lcib/9806/
danpre.html.

Marcus, Ruth. “Opinion: Does Dobbs Violate the 
Establishment Clause?” !e Washington Post, 
January 20, 2023. https://www.washingtonpost.
com/opinions/2023/01/20/abortion-dobbs-
establishment-clause-sotomayor/.

Newport, Frank. “!e Religion of the Supreme Court 
Justices.” Gallup, April 8, 2022. https://news.
gallup.com/opinion/polling-matters/391649/
religion-supreme-court-justices.aspx.

Pew Research Study. “Religious Landscape Study.” 
Pew Research Center’s Religion & Public Life 
Project, 2015. https://www.pewresearch.org/
religious-landscape-study/database/political-
ideology/conservative/.

Roe v. Wade, 410 U.S. (1972)

Schultz, David. “!e Roberts Court Takes Aim at 
the Establishment Clause.” !e Hill, May 
31, 2023. https://thehill.com/opinion/
judiciary/4026628-the-roberts-court-takes-aim-
at-the-establishment-clause/.

Sorauf, Frank . !e Wall of Separation?: !e 
Constitutional Politics of Church and State. Princ-
eton University Press, 2015. https://press.princ-
eton.edu/books/hardcover/9780691644448/
the-wall-of-separation.

Stone v. Graham, 449 U.S. 39 (1980).

United States Senate. “U.S. Senate: Supreme Court 
Nominations (1789-Present).” www.senate.gov, 
2022. https://www.senate.gov/legislative/nom-
inations/SupremeCourtNominations1789pre-
sent.htm.

United States Supreme Court. “Supreme of the 
United States Statement of the Court Regarding 
the Code of Conduct,” November 13, 2023. 
https://www.supremecourt.gov/about/Code-of-
Conduct-for-Justices_November_13_2023.pdf.

University of Minnesota Law School. “!e 
2023 Stein Lecture: U.S. Supreme Court Justice 
Amy Coney Barrett.” YouTube. October 25, 
2023. Video.  https://www.youtube.com/
watch?v=XCv6jwIw4Q4&t=2770s.

U.S. Const. amend. I 

U.S. Const. amend. XIV

VanSickle, Abbie. “Supreme Court Will Hear 
Challenge to Abortion Pill Access.” !e New York 
Times, December 13, 2023. https://www.nytimes.
com/2023/12/13/us/supreme-court-abortion-
pill.html.


