John Roberts 'breached separation of church and state' in 3 cases — but fourth is a wild card

During his 20 years on the U.S. Supreme Court, Chief Justice John Roberts has been neither as much of a libertarian as former Justice Anthony Kennedy nor as much of a social conservative as Justices Samuel Alito and Clarence Thomas or the late Justice Antonin Scalia. And the High Court, now with a 6-3 supermajority of GOP appointees, is the most socially conservative it has been in generations.

CNN Supreme Court analyst Joan Biskupic examines Roberts' track record on the separation of church and state in an article published on May 1, wondering what he will have to say on that subject in a new case.

"Roberts wrote the three cases that proponents of an Oklahoma religious public charter school relied on Wednesday, (April 30) in a major dispute over the First Amendment's protections for religion," Biskupic explains. "He began in a limited vein in 2017, requiring Missouri to pay for playground resurfacing at a church school as it did for non-religious places. But Roberts then authored decisions in 2020 and 2022 favoring parents seeking student aid and tuition assistance for religious schools, as was available at nonsectarian schools."

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Biskupic, adds, "Justice Sonia Sotomayor, among the dissenters who said those cases breached the constitutional separation of church and state, responded in the last one: 'This Court should not have started down this path five years ago. … I warned (in the 2017 case) that the Court's analysis could be manipulated."

The new case, according to Biskupic, will be decided by only eight of the nine justices — as Justice Amy Coney Barrett is recusing herself for reasons she hadn't specified.

"The former Notre Dame law professor has a personal connection to members of the school's religious liberty clinic that helped develop the case," Biskupic notes. "If Roberts votes with his four conservative brethren, who all seemed ready to side with St. Isidore, they'’d have the requisite five-justice majority. But if Roberts instead votes with the three liberals, who voiced strong reservations about the possibility of a taxpayer-funded religious school, it would be a 4-4 split."

The CNN columnist adds, "The result would affirm the Oklahoma Supreme Court’s decision last year invalidating the St. Isidore initiative."

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Joan Biskupic's full CNN article is available at this link.