Does The Supreme Court’s Religious Composition Matter?

On NPR this morning, Supreme Court correspondent Nina Totenberg questioned whether the religion of Supreme Court justices is something that is discussed in “polite company” — a framing that struck me as weirdly amusing. But it seems inevitable, with the impending retirement of Justice John Paul Stevens, the last remaining Protestant on the Court, that the subject will be mulled over — politely and impolitely, I am sure.

Stevens’ departure from the Court will be more significant politically than religiously, of course, regardless of the religious affiliation of his replacement. Although six of the nine current justices are Catholic, they don’t appear to be monolithic, although there is that solid conservative bloc — Roberts, Scalia, Alito, Thomas — that is fairly so, with Kennedy sometimes coming along and Sotomayor not so much. Is their motivation their Catholicism or their political ideology? If Roberts, Scalia, Alito, and Thomas represent the Court’s Catholic majority, they’re definitely skewed much more conservative than most American Catholics. Does that mean they shouldn’t be joined by another qualified Catholic, one who is, say, pro-choice (like about half of all Catholics), just because the Court already has so many Catholics?

Still, it’s intriguiging to think how a country whose core of political power has traditionally been, well, Protestant, and which is increasingly framing political discourse in evangelical terms, might have no more Protestants or evangelicals. One might think, at first blush, that with the evangelical right’s interest in taking dominion over government, that more evangelicals would be represented in the federal courts. But at the Supreme Court level, it seems that conservatives — constitutional “originalists,” opponents of church-state separation jurisprudence, abortion foes, and others — have turned to Catholics like those of the Court’s conservative bloc to represent their interests. Why the lack of evangelicals, when they were so well-represented in the Bush administration, and particularly in his Justice Department that engaged in partisan firings of federal prosecutors?

One answer might be that evangelical legal education is still relatively young. Pat Robertson’s Regent University Law School was founded in 1986, but wasn’t fully accredited by the American Bar Association until 1996. And Jerry Falwell’s Liberty University Law School didn’t even get off the ground until 2004 — meaning that its graduates are still cutting their teeth. Still, though, ascendancy to the federal bench traditionally has required a better pedigree, so if the Christian right really wants to take over the Supreme Court, it should start sending more students to Harvard Law School.

While the religion of Supreme Court justices shouldn’t matter, and there most certainly shouldn’t be a religious litmus test of any kind (including a litmus test for religious belief or affiliation), I was curious enough to take a look at this handy guide to the religion of Supreme Court justices. You have to go back nearly 150 years to find the only justice — David Davis, a distant ancestor of George W. Bush — to find one with no religious affiliation at all, and all the others have, of course, been Christian and Jewish. Episcopalians lead the pack, with 35, or over 30% of justices in the Court’s history, being Episcopalian. (Stevens is listed as a “Protestant, not further defined.”) There have been almost as many Unitarians as Catholics, more Jews than Baptists, and there’s never been a Pentecostal, Mormon, or Muslim (no surprise there).

No litmus tests, please, but surely we can talk about all of this in “polite company.”



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