Religion and the Supreme Court

Laurence H. Tribe is the Carl M. Loeb University Professor at Harvard Law School. His 1978 seminal work, American Constitutional Law, has been published in three editions. He is the coauthor of On Reading the Constitution and The Supreme Court: Trends and Developments, and the author of Abortion: The Clash of Absolutes, Constitutional Choices. Tribe clerked for Supreme Court Justice Potter Stewart and for California Supreme Court Judge Matthew Tobriner.

A justice’s religious affiliation is unlikely in itself to determine that justice’s interpretation of legal and constitutional provisions or his or her approach to generic issues. For example, religion is not likely to affect the relative weight a justice accords the original intent of the framers, cultural evolution, social policy concerns or the structure and implicit ideas contained in the Constitution. Justice William Brennan, for example, was no less a Catholic than Justices Antonin Scalia and Clarence Thomas, and yet his views on most of those issues were diametrically opposed to theirs. And, although Justice Anthony Kennedy differs less dramatically from Scalia and Thomas than did Brennan, his differences from the two of them are likewise stark and important. Yet he, too, is a practicing Catholic.

This isn’t to say, however, that any justice’s philosophy of judging—and approach to important statutory and constitutional controversies—can be successfully divorced from that justice’s overall values, belief systems and world view. A justice’s opinions are influenced directly or indirectly by personal understanding of how legal rules work in his or her life, which will be shaped by that justice’s early life, his or her family upbringing, and formative cultural and social experiences and affiliations.

I’d speculate that we are becoming ever more diverse religiously, as well as ethnically and culturally, and that this diversity generates increasingly deep divisions over the role that religion should play in public life.

It would, however, be a mistake to equate either depth of religious feeling and degree of religious participation, or the belief that religious notions and symbols should be welcomed in public discourse and in the public square, with conservative or right-leaning political and cultural orientation. Historically, we have seen otherwise. The anti-slavery movement was heavily and overtly religious, as have been many of our nation’s anti-war movements. And Barack Obama is manifestly more invested in and open about his religious beliefs and practices than is John McCain.  [return to top]

Eugene Volokh is a professor of law at the University of California at Los Angeles (UCLA). He clerked for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit and Justice Sandra Day O’Connor of the U.S. Supreme Court. Volokh is the founder and co-author of the well-known Volokh Conspiracy blog, which features legal commentaries, and has written numerous law review articles and op-ed articles.

The theology of a Supreme Court justice matters—and it may matter in a way that is influenced by a justice’s religion—but it’s hard to track things beyond that. An example is whether religious schools should be permitted to participate on an equal footing with private, secular and public schools in government funding programs. Such programs are generally thought to have been particularly helpful—or would be particularly helpful if permitted—to Catholic schools, because a disproportionate share of private schools is Catholic, although I think that such funding could be quite helpful to Jewish religious schools and others.

Justice Antonin Scalia—probably the one Supreme Court justice who is most publicly Catholic—has always argued that these kinds of programs are constitutionally permissible. On the other hand, one of their biggest foes, who mandated the discriminatory exclusion of religious schools from these programs, was Justice William Brennan, also a notable Catholic. Did Scalia’s Catholicism affect his judgment about church and state? Maybe. But it may have equally affected Brennan in the other direction.

Likewise with regard to the death penalty: The Catholic Church is one of the most prominent opponents of the death penalty. Brennan and a non-Catholic, Justice Thurgood Marshall, were the only two justices who during their Court tenures consistently held that the death penalty was unconstitutional. Justices Harry Blackmun and John Paul Stevens have recently also expressed views—Blackmun at the end of his tenure—that the death penalty is unsound but they would follow the precedents that have upheld it. On the other hand, Scalia, one of the Court’s most solid proponents of the view that the death penalty is constitutional, has been joined by lots of non-Catholic justices, like William Rehnquist.

The Constitution says that there can’t be religious tests for office, and I think that means that you can’t be prevented from holding a certain office unless, for example, you’re Protestant. But if someone wants to know whether someone’s religion will interfere with this person’s judging obligations, the Constitution does not stand in the way. Political ethics and good sense might lead us to condemn those questions—you might say that in a country where there are many different religious groups, looking closely at a person’s religion is likely to shed more heat than light. Jews, for example, might particularly wonder about that, and say that while in principle it’s legitimate to ask how one’s Jewish religion will affect one’s judging, in practice, it might lead to people dredging up all sorts of attitudes, stereotypes and hostilities toward Jews that would more likely lead to prejudice rather than sound judgment.