Since I’ve been on the road talking about Justice Scalia, I’ve consistently been asked about the fact that six of the nine justices are Roman Catholic and about how that affects the Court’s opinions, particularly those of Scalia. I devoted a chapter to Scalia and religion — Passions of His Mind — and, despite how touchy the intersection of personal belief and judicial views can be, I am ready to field these questions.
Recently, however, I’ve felt a shift in the line of questioning, as happened this week at Yale, and it comes down to a query fraught with more hazards: Would it be politically difficult for the president to choose a Catholic for any new vacancy? And would it be almost as difficult to pick someone who is Jewish? Right now, serving with the six Catholics (Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, Sonia Sotomayor), are two Jewish justices (Ruth Bader Ginsburg and Stephen Breyer) and one Protestant. That one Protestant, Justice John Paul Stevens, will turn 90 in April and is likely to be the next to retire. I’ve heard a few professors say if Stevens steps down, it would be nearly impossible for Obama to chose a Catholic, or maybe even someone who is Jewish, because of the current court makeup.
I do not know how religion would affect the choice, but here’s some context from where I sit, along with the thoughts of two of my subjects:
The Supreme Court had long been dominated by Protestants, of course, like the White House and Congress. When Catholics became a five-member majority after the 2005 and 2006 appointments of Roberts and Alito, it barely made the news, however, because of faded anti-Catholic sentiment and evolving religious pluralism in America. After recent abortion-rights disputes, the religious backgrounds of the justices became a topic for discussion, but still with unease. As I’ve written, lawyers often express thoughts about how Catholicism influences legal opinions only privately, reflecting their discomfort with the suggestion that either Scalia is being disingenuous about how his beliefs influence him (he says they do not) or that serious Catholics cannot think nonreligiously about legal matters.
For his part, Justice Scalia has said he was “very pleased and sort of proud that Americans didn’t pay any attention” when the bench suddenly had a Catholic majority.
My earlier biographical subject, Sandra Day O’Connor, an Episcopalian, comes at it differently. And when I was asked about the justices and religion in New Haven this week, I found myself recalling something she said last fall. During a panel discussion, O’Connor emphasized the value of diversity on the bench — in sex, professional experience, geography and religion. “I don’t think we should have nine clones up there,” O’Connor said, primarily complaining at that point that all current justices had been elevated from lower U.S. appeals courts. When asked about geographical representation, O’Connor took the initiative to go beyond the question and declared, “I don’t think they should all be of one faith and I don’t think they should all be from one state.”