“A number of years ago I gave a visiting lecture at a large state university. At the faculty dinner afterward, my hosts asked who I thought was the most thoughtful and intellectually interesting Supreme Court justice. They probably expected me to answer ‘Justice Scalia,’ which would have been defensible and acceptable among the dozen or so professors present, all of whom were on the political left.

‘That’s easy,’ I said, ‘Justice Thomas.’

They were stupefied. ‘You have got to be kidding,’ remarked a senior philosophy professor. ‘He doesn’t even speak at oral arguments.’ ‘He just votes how Scalia tells him,’ another professor proclaimed. The remarks were as outrageous as they were ignorant. ‘When Thomas retires,’ I said, ‘he will be known as the justice most faithful to the Constitution, he will have transformed originalism, and when he dies will be a great American hero.’ My dinner companions’ good opinion of me instantly evaporated.

I recalled that conversation after reading the opinions in Espinoza v. Montana, the religious freedom decision handed down last week by the Supreme Court. The Court held, 5-4, that the state of Montana violated the First Amendment’s Free Exercise Clause when it excluded religious individuals from participating in a tax-exempt scholarship program. As explained by my Notre Dame colleague Richard Garnett, the decision continues the movement by the Rehnquist and Roberts Courts to ‘steadily steer the relevant [church-state] doctrines in the direction of neutrality and even-handedness, reminding citizens and litigants alike that cooperation with religious institutions does not constitute an unlawful ‘establishment’ of religious authority…'”