Why Americans can't talk about religion and the Supreme Court.

The law, lawyers, and the court.
Dec. 10 2009 5:59 PM

Articles of Faith

Why Americans can't talk about religion and the Supreme Court.

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Scalia—the court's most outspoken Catholic—has also been the most vocal proponent of the argument that his religion just doesn't affect his judicial views. He does not, as Biskupic points out, follow Catholic teachings on the death penalty, for example. Moreover, he claims that his strict textualism is the best protection against letting his religious views overwhelm his legal reasoning. As he has said, "If I were an evolving constitutionalist, how could I keep my religion out of it? That is precisely one of the reasons I like textualism…you don't have to inject your own biases and prejudices." But then Scalia's contention that his religion doesn't shape his legal thinking at all looked at least somewhat wobbly this fall, when he claimed at oral argument in a case about a cross on government land, that it was "outrageous" to argue that Jewish war veterans might not feel honored by a memorial shaped like a cross.

Still, those who have attempted to argue that one's religion does inform a justice's constitutional thinking have encountered some rough sledding. How to answer, for instance, Scalia's argument that William Brennan—also a Catholic—was one of the staunchest defenders of reproductive rights? Those who insist that a justice's religion matters on a court that decides moral issues ranging from abortion to capital punishment, bear the heavy burden of connecting religiously neutral opinions to unspoken (or even subconscious) religious biases. Geoffrey Stone took another run at the data recently, in response to the Biskupic book, asking himself whether his earlier observation about the abortion cases was unfair. His conclusion:

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Of course, none of this necessarily 'proves' anything. The five Catholic justices appointed by Republican presidents since Roe often vote together on a range of issues having nothing to do with their religion. … But Gonzales does raise interesting questions about whether and to what extent judges are and should be influenced by their religion, their ethnic background, their race, their life experiences, and their personal values.

Stone's basic conclusion—that the relationship between a justice's religion and jurisprudence raises interesting questions—is hardly controversial. But like so many interesting questions about the justices, that doesn't mean we're going to talk about it. And, to be sure, even if one could prove that their religion affects judicial thinking, what then? Is there a cure? Some critics, such as Joyce Appleby, a UCLA historian, have claimed that Catholic justices should recuse themselves from cases in which the Catholic Church has taken strong stands. But that is neither practical nor fair. Others, like Marci Hamilton, merely urge the justices to be more careful about preserving the appearance of religious neutrality, by avoiding things such as their annual participation in the Catholic "Red Mass."

Professor Michael Dorf at Cornell Law School has argued, I think persuasively, that it's not so much the justices' individual religions that matters, but whether they are, "Catholic" or "Protestant" with regard to their respect for sources, texts, and any intervening precedent. * Borrowing from a framework laid out by University of Texas law professor Sanford Levinson, this approach suggests that Catholics see the Word of God as mediated by Church teachings. Whereas Protestantism "emerged after the printing press had come to Europe, and it encouraged the faithful to read and make sense of the Gospels for themselves, without the requirement of obedience to Rome." Under this reading, Scalia is a Protestant when it comes to textual exegesis, and Ruth Bader Ginsburg, is, well, a Catholic. Dorf's larger point is that it's the justice's approach to evolving precedent that matters more than which church he attends.

Professor Stephen Prothero of Boston University is right too. He has written that none of this mattered, anyhow, when a sixth Catholic was elevated to the high court this summer, "the story is in the silence." Amid all the focus on Sotomayor's race and gender, nobody cared much where she prayed. It can't possibly be the case that, as Scalia says, religion no longer divides us. The country is as religiously divided as it's ever been. But we expect, maybe we even need, the Supreme Court to be above all that. That's our own article of faith.

Precisely because matters of faith are so intimate, personal, and so visceral, it boggles the mind to imagine how they might shape judicial reasoning. Speculating about the constitutional impact of a judge's gender or race seems almost scientific compared with worrying about how their religion may come into play. Besides—and perhaps this is the real problem—for most of us, the Supreme Court itself is still America's church. The Constitution is its sacred text. And so the possibility that any one man's personal faith could override the law is more than just frightening. It's its own kind of heresy.

Correction, Dec. 10, 2009: The article originally said Dorf was at Columbia law school. (Return  to the corrected sentence.)