You can imagine a justice thinking that the Constitution doesn’t secure a right to abortion. Subconsciously a justice might reason: The Constitution wouldn’t authorize a right to do something horrible, abortion is something horrible because of my religious beliefs; therefore, I think that the Constitution doesn’t secure that right. Many non-Catholics have taken that view, including Justices Byron White and Rehnquist, who to my knowledge were nominally Protestant and not particularly religious. Even a non-religious person could say that the Constitution never says anything about abortion—to the extent it says anything about unanimated rights—and those rights don’t necessarily include a practice that for many decades every state considered to be a crime. We can hypothesize other situations where a judge’s religion might have affected his opinion consciously or subconsciously, but we would find it hard to prove. [return to top]
Jeffrey Toobin is a legal analyst for CNN after seven years with ABC News. He is a staff writer on legal affairs for The New Yorker, and his work for Independent Counsel Lawrence Walsh provided the basis for his first book, Opening Arguments: A Young Lawyer’s First Case—United States v. Oliver North. His most recent book is the 2007 The Nine: Inside the Secret World of the Supreme Court.
I think the fact that there are five Catholics on the Court is of little significance. The Court’s composition has frequently reflected the political and ethnic tensions at large. In the Court’s early days when regional differences were central, it was important to have a southern, a western and a Massachusetts justice. As regional difference disappeared that became less of a fact. There were two justices [William Rehnquist and Sandra Day O’Connor] from Arizona for many years and that was not an important state. Later with the immigration of [southern and eastern] Europeans, ethnic differences became important. You had a Catholic seat and a Jewish seat and presidents felt they had to check that box.
Ethnic and regional differences have gone down and the primary divisions today are political. Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsburg, two Jews, to the Court, not because they were Jewish but because they were moderate liberals like Clinton. George W. Bush nominated Samuel Alito and John Roberts not because of their Catholic religion but because of their politics. They were conservatives like him. Their religion was incidental to the real reason, which was their politics. So I submit that religion does not play a role.
John McCain gave a big speech about what kind of candidate he would appoint. He said very explicitly: a candidate much like John Roberts and Samuel Alito, similarly conservative, similarly interested in overturning Roe v. Wade, opposing affirmative action and supporting the death penalty. Barack Obama hasn’t said much but his views on the Constitution are pretty well known. I suspect he would appoint someone like Breyer or Ginsburg. [return to top]
Interviews conducted by Joan Alpert, Mandy Katz and Nadine Epstein.
Research by Mark Abramson, Inga Feldi, Helen Grove, Laurel Lachowiez and Benjamin Schuman-Stoler.