Religion and the Supreme Court

Later that same year, the media reported that Senator Dick Durbin, a Democrat and a Catholic himself, privately asked Roberts if Catholicism would influence his work on the Court. A Boston Globe reporter observed that although Durbin’s office denied the account, conservatives complained that “Democrats are imposing a bigoted and unlawful ‘religious test’ to keep ‘people of faith’ off the federal bench,” thereby violating Article VI.

Such political diatribes notwithstanding, tracking the influence of a justice’s religion and separating faith from political and legal philosophy are challenging tasks. The justices themselves have generally denied that the tenets of specific religions dictate their positions or judicial inclinations. Antonin Scalia, for example, told a 2008 Villanova University symposium, “I am hard-pressed to tell you of a single opinion of mine that would come out differently if I were not Catholic.” Ruth Bader Ginsburg, who frequently disagrees with Scalia, fell firmly into line with him on this one, saying in January 2008 that, if the Jews who preceded her on the Court were known as “Jewish justices,” she and Breyer, by contrast “are justices who happen to be Jews.”

Still, the present Court’s makeup invites the usually unasked question relevant in a presidential election year when future appointments hang in the balance: Does the religion of Supreme Court justices play a role in their jurisprudence? Moment turns to a group of well-respected jurists, historians and legal scholars for their insights.—Joan Alpert

Jeffrey Rosen is a professor of law at The George Washington University and the legal affairs editor of The New Republic. He has written on the Supreme Court and other legal matters for the New York Times Magazine, The Atlantic Monthly and The New Yorker. His most recent book is The Supreme Court: The Personalities and Rivalries that Defined America.

Religious background is one of several elements of personality and temperament that may affect leadership styles, the way that a justice interacts with colleagues, and the way that he pursues his agenda, but it does not guarantee that he will vote one way or another. So religious influence is—like pornography—hard to define. Perhaps you know it when you see it.

Justice Antonin Scalia has written extensively that his own Catholic faith could never influence his jurisprudence and if he thought for a moment that it might, he would resign. On the other hand, Justice Stephen Breyer has reached a different conclusion. At a forum earlier this year in Washington, DC, an audience member asked Breyer whether his religion influenced his jurisprudence. He said that he didn’t see how it couldn’t because it shapes part of who he is; just as other aspects of his background influence his worldview, so his religious background does, too. I think that he stressed that it’s not a question of leading him to vote one way or another on individual cases but that his respect for close legal argumentation is connected perhaps to his Jewish background.

There’s a dramatic example of a case where religious beliefs might have influenced a judge’s position, and that’s Buck v. Bell, where the Supreme Court upheld eugenics laws in 1927. In his infamous majority opinion, Justice Oliver Wendell Holmes said that three generations of imbeciles is enough, and he enthusiastically upheld dreadful laws that mandated the sterilization of so-called imbeciles. The only dissenter in the case was Justice Pierce Butler, a devout Catholic. And it was not a coincidence, because at the time conservative Catholics as well as conservative Protestants and Jews were the only vocal religious opponents of eugenics laws. Butler mirrored the experience of other Catholics in recoiling at these illiberal laws as violations of human dignity.

Today, we’re at an odd moment in the Supreme Court’s history where the justices are revealing many aspects of their lives in unprecedented ways. Scalia not only talks about his religion, but also recently went on 60 Minutes to talk about his childhood. The justices are giving interviews in ways that they wouldn’t have 10 years earlier, so it’s not surprising that all aspects of their identity—including religion, childhood backgrounds, their friends, their youthful politics—are suddenly discussed.

It’s not that I believe that justices should never discuss their religion, but they have to be just as circumspect about religion as they are in other subjects. Justice Clarence Thomas is a cautionary tale for me. In his memoir and in other comments that Thomas has made about his religion, one has the sense of an angry man who is not eager to forgive enemies and who is using religion not only as solace but also as a polarizing device. More circumspection would have served him better. On the other hand, others have had different reactions to his bestseller. Many of my students liked the book because after reading it they felt that they understood Thomas better.

There has never been a time when religion has been banished either from the nomination process or the Court itself. Many of our greatest justices have been openly religious. The first John Marshall Harlan was said to go to bed every night with one hand on the Bible and the other on the Constitution—and therefore to sleep the sweet sleep of the righteous. And he used religious imagery in his great opinions striking down segregation and defending the rights of African Americans—so it would be unrealistic to try to cordon this area off entirely. The difficulty is knowing what to make of it in a multicultural age.