When Justice John Paul Stevens, who is 89, retires—and he's expected to in the next year or so—there will be no Protestant left on the highest court in the land. Will President Obama be pressured to appoint one? Popular opinion once held that even one Catholic was too many on the court. Today there are six. But would anyone even notice if Obama appointed a seventh to replace Stevens? Once upon a time, there was an outright religious litmus test for Supreme Court appointees. Today religion is almost irrelevant in appointing new justices.
All of which raises a question: Are the days of caring about religious diversity on the high court behind us? Or is it merely that the days of talking about it openly are behind us?
We generally don't talk much about religion and the Supreme Court. We talk about the need for race and gender diversity on the court in brave, sweeping pronouncements: The court needs more women, we say, or more Asians, or more gay and disabled people. Because all those things will impact the law. But when it comes to talking about religious diversity, it happens in whispers, if at all. Because it might impact the law. For a small handful of Americans, the fact that six of the nine justices on the current court are Catholics is an underreported national scandal. But for most, it's just quirky news.
Former Justice Sandra Day O'Connor surprised folks in October when she was asked about the lack of geographic diversity on the court. Her candid response? "I don't think they should all be of one faith, and I don't think they should all be from one state." But O'Connor has long been one of the bravest women in America. Most of the time, the suggestion that there should be greater religious balance at the court is met with cries of religious intolerance and persecution.
Those who do talk about religion and the court—generally on the left and right extremes of the political spectrum—think it matters. They are people like Pat Buchanan, who noticed last summer that the court is now comprised of "six Catholics, two Jews and one Protestant," whereas:
…the least represented minority in America on the U.S. Supreme Court? Not Catholics, who have two-thirds of the seats. Not Jewish-Americans, who though 2 percent of the population, have 22 percent of the seats. Not African-Americans, who at 13 percent of the population have 11 percent of the seats. And not Hispanics, who at 15 percent of the population will have 11 percent of the seats. No, the most underrepresented group of Americans—nay, the most unrepresented minority, the largest group of our fellow citizens never to have had one of its own sit on the U.S. Supreme Court in the modern era is—Evangelical Christians.
Buchanan's not wrong to say that if the public can lobby like crazy for racial and ethnic diversity on the court, the need for religious diversity and proportionality must matter as well. Yet the mere suggestion that there are a lot of Catholics at the court is still seen as, well, constitutional loutishness. Talking about a judge's religion is about as tasteful as talking about her gynecologist. Just ask Chicago Law School professor Geoffrey Stone, who argued two years ago that Catholicism was the principal reason the court had changed its position on the constitutionality of partial birth abortion between 2000 and 2007. As Stone put it at the time:
Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales.
In her terrific new biography of Antonin Scalia, USA Today's Joan Biskupic shows why Stone's observations were so painful for him to make. Scalia, in an interview, pounds the guy: "Now he knows that that's a damn lie," Scalia tells Biskupic, of Stone's Five Catholics hypothesis. Scalia goes on to say that Stone's charge "got me so mad I will not appear at the University of Chicago until he is no longer on the faculty." Indeed Scalia is most annoyed with Stone because, as he says, "I had been very pleased and sort of proud that Americans didn't pay any attention to that. It isn't religion that divides us anymore."
The idea that religion no longer matters at the high court is an alluring one. It suggests we are making progress: If we are past caring about religion today, the theory goes, we might someday get past caring about race and gender, too. It's possible. But it's also possible that something as intimate and complicated as religion is simply very difficult to talk about, whereas we can't stop yakking about race and gender.
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:
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.)