Does a Supreme Court Justice

By BOB RITTER

For HumanistNetworkNews.org
May 19, 2010

President Obama's selection of Justice Sonia Sotomayor in 2009 as the sixth Catholic justice on the Supreme Court and his recent nomination of Solicitor General Elena Kagan as the third Jewish justice, replacing the retiring Justice John Paul Stevens (currently the Court's sole Protestant), has heightened our awareness of the religious affiliations of justices and raises the question: does a justice's religion matter?

Assuming that Kagan is confirmed this summer, the new Court will be comprised of 67% who self-identify as Catholics (Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito and Sotomayor) and 33% who self-identify as Jewish (Ruth Bader Ginsburg, Stephen Breyer and Kagan).

If for no other reason, this is worrisome on grounds of lack of diversity. In contrast to the Court's future composition, the 2008 American Religious Identification Survey (ARIS 2008) found that 25% of Americans identify themselves as Catholic, 51% as other Christian, 2% as Jewish, 2% as other religions and 15% as no religion (with 5% not responding to the survey). Clearly, the Catholic and Jewish faiths will be very over-represented on the new Court, Protestant faiths very underrepresented and the "nones" will also be underrepresented.

But raising the diversity flag begs the question of whether a justice's religion matters.

Before answering the question, I would first like to take this opportunity to say that retiring Justice Stevens, a Protestant nominated by President Gerald Ford, has been a super friend of the principle of separation of church and state–often writing very strong dissents to opinions of the Court's Christian right majority. He is proof that a person of religious faith can be faithful to the principle of separation of church and state embodied in the First Amendment.

When we look at five particular cases since 2005, the justices' voting records in Van Orden v. Perry (Ten Commandments), McCreary County v. ACLU of Kentucky (Ten Commandments), Gonzales v. Carhart (abortion),  Hein v. Freedom From Religion Foundation (faith-based initiatives) and Salazar v. Buono (Christian cross) show a high correlation between adherence to the principle of separation of church and state and support for choice and the justices' religious affiliation. The data shows that just 5% of the votes of Catholic justices supported the separation of church and state/pro-choice position, while 85% of the Protestant justices' votes and 90% of the Jewish justices' votes supported the separation of church and state or pro-choice position.

I would like to make two observations. First, though the above statistics are telling, I believe the question is much more complex. The conservative Catholics on the Supreme Court (i.e., Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito) uniformly took the anti-separationist/abortion position, while the lone liberal (or progressive) Catholic (i.e., Justice Sotomayor) supported the separationist/pro-choice position in the one case of the aforementioned five that she has participated in. Therefore, though religion may be a strong predictor of how a justice will vote, other factors, such as ideological leanings, can come into play as strong predictors as well. Second, I would like to point out that Catholicism is a hierarchical religion with a single leader and strong authoritarian commands. Given the history and nature of the Roman Catholic Church, this suggests that most Catholic justices will be anti-separationist. On the other hand, we can expect justices of the Jewish faith–which is a minority religion with a history of being persecuted–to be predominantly of the separationist view. Thus, the structure and historical background of the religious community in which a justice was raised may have more influence in how they will vote than the doctrinal content of their religious beliefs.  

Because Article VI of the Constitution prohibits a religious test for public office, the Senate must examine closely a nominee's "judicial philosophy" if it is to confirm a justice who will be neutral in matters of religion, as the Constitution also requires. In answering this question of Solicitor General Kagan, it is her deference to government authority (commonly held by conservative Catholics), not her religion, that we should be concerned about.

Factoid: Justice David Davis, who served on the Supreme Court from 1862 until 1877, is the only justice with no known religious affiliation.

For the Religious Affiliations of the U.S. Supreme Court, see http://www.adherents.com/adh_sc.html.

Bob Ritter is the legal coordinator and staff attorney of the Appignani Humanist Legal Center.