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.

US Supreme Court Justice John Paul Stevens.
Supreme Court Justice John Paul Stevens

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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?

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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.