How Will Religion Affect a New Supreme Court?

By | Oct 05, 2020

On Sunday, the Roman Catholic Archdiocese of Washington, DC, celebrated its Red Mass, an annual event held on the Sunday before the first Monday in October when the Supreme Court term begins. It is regularly attended by many Supreme Court justices, six of whom at this time are Catholic, and it is a chance for the church to sermonize about the issues that concern it. 

What a different term this will be. First, the court is one woman short due to the recent loss of Supreme Court Justice Ruth Bader Ginsburg, who was one of three Jewish justices. (Read my eulogy for the late justice, given September 23 at the Special Jewish Memorial Service for Justice Ruth Bader Ginsburg, sponsored by the Jewish Council for Public Affairs with National Council for Jewish Women, Jewish Women International, The Jewish Federations, Hadassah and the We Are Women’s League.) Second, President Donald Trump’s nomination of yet another extremely conservative Catholic to the high bench, Amy Coney Barrett. As a legal scholar I spoke with recently told me, she is such a conservative Catholic that she makes the Pope look Jewish.

If Barrett is confirmed, there will be seven Catholic justices (including Clarence Thomas, a convert) and Neil Gorsuch (Catholic but worships at a Protestant church with his wife and family) on the court and two Jews. Only one, Sonia Sotomayor, is a liberal Catholic, while the remainder hail from various conservative Catholic strains. Justices are political appointees: There is no requirement that they reflect the nation’s makeup, and they don’t. There are roughly 51 million Catholic adults, constituting the largest single religious group in the U.S., according to the Pew Research Center. Interestingly, the Catholics on the bench also do not appear to be representative of American Catholics, who are evenly split between the Republican and Democratic parties. Of the two remaining Jews, both have voted reliably with the court’s liberal bloc.

What effect, if any, do religious beliefs and leanings have on Supreme Court justices’ thinking and rulings? The conclusion that emerges from a 2015 Moment symposium is that the impact is profound. Among the legal thinkers interviewed are Robert Barnes, Lyle Denniston, Tony Mauro, Sarah Posner, Leslie C. Griffin, Stephen Wermiel, Marshall Breger, Emily Bazelon and Dahlia Lithwick. Most agreed that while once justices had striven to keep their religious beliefs and backgrounds separate from their jurisprudence, this was increasingly not the case. Religious influence, for example, has proven relevant in cases revolving around separation of church and state, a central principle of Thomas Jefferson and James Madison, said Denniston. “Although it is not uniformly what happens, Roman Catholic justices are more inclined to let personal religious values affect discourses and outcomes than Jews on the court,” he said. “Jewish justices are more likely to be separationists in terms of church and state.” Many other instances of influence are also discussed.

This Moment symposium remains astoundingly relevant, maybe more so now that Barrett may soon fill Ruth Bader Ginsburg’s seat. Moment took this topic live at the Newseum in 2014 where it was recorded for posterity by C-SPAN.

Early in her tenure on the Supreme Court, Justice Ginsburg attended the Red Mass. She never returned, she said, since the priest giving the sermon lectured the justices about the evils of abortion. I am still absorbing the loss of this great woman, who contributed an essay to our current symposium on whether society is progressing or regressing in Moment’s September/October issue. (Other contributors are Deepak Chopra, George Will, Madeleine Albright, Thomas Friedman, Jill Jacobs, Bill McKibben, Steven Pinker, Natan Sharansky and Isabel Wilkerson, among others.) She was cautiously hopeful. I would also like to share with you a short video we have produced in which the late justice sends a message to young American voters. 


Photo by Anthony Quintano / CC BY 2.0

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