Skip to comments.Articles of Faith: Why Americans can't talk about religion and the Supreme Court
Posted on 12/15/2009 8:30:37 AM PST by Alex Murphy
When Justice John Paul Stevens, who is 89, retiresand he's expected to in the next year or sothere will be no Protestant left on the highest court in the land. Will President Obama be pressured to appoint one? Popular opinion once held that even one Catholic was too many on the court. Today there are six. But would anyone even notice if Obama appointed a seventh to replace Stevens? Once upon a time, there was an outright religious litmus test for Supreme Court appointees. Today religion is almost irrelevant in appointing new justices.
All of which raises a question: Are the days of caring about religious diversity on the high court behind us? Or is it merely that the days of talking about it openly are behind us?
We generally don't talk much about religion and the Supreme Court. We talk about the need for race and gender diversity on the court in brave, sweeping pronouncements: The court needs more women, we say, or more Asians, or more gay and disabled people. Because all those things will impact the law. But when it comes to talking about religious diversity, it happens in whispers, if at all. Because it might impact the law. For a small handful of Americans, the fact that six of the nine justices on the current court are Catholics is an underreported national scandal. But for most, it's just quirky news.
Former Justice Sandra Day O'Connor surprised folks in October when she was asked about the lack of geographic diversity on the court. Her candid response? "I don't think they should all be of one faith, and I don't think they should all be from one state." But O'Connor has long been one of the bravest women in America.
(Excerpt) Read more at slate.com ...
....Here is a painfully awkward observation: All five justices in the majority in [Gonzales v. Carhart, which upheld the Partial-Birth Abortion Ban Act of 2003] are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position....
....Professor Michael Dorf at Cornell Law School has argued, I think persuasively, that it's not so much the justices' individual religions that matters, but whether they are, "Catholic" or "Protestant" with regard to their respect for sources, texts, and any intervening precedent.* Borrowing from a framework laid out by University of Texas law professor Sanford Levinson, this approach suggests that Catholics see the Word of God as mediated by Church teachings. Whereas Protestantism "emerged after the printing press had come to Europe, and it encouraged the faithful to read and make sense of the Gospels for themselves, without the requirement of obedience to Rome." Under this reading, Scalia is a Protestant when it comes to textual exegesis, and Ruth Bader Ginsburg, is, well, a Catholic. Dorf's larger point is that it's the justice's approach to evolving precedent that matters more than which church he attends.
Further, you can't talk about the over-representation of Catholics without talking about the over-representation of Jews, which makes one sound like a fringe character.
Well, if we went by quotas of this sort from Church membership roles, there would be 2 Catholics, 3 formal Protestants (one Southern Baptist, one other Baptist, one Pentecostal), 2 informal Protestant Christians/"Spiritual People" (not formal members of any denomination or Church), and 2 agnostic/atheist. Lutherans, Orthodox, Presbyterians, Jews, Muslims, Mormons, Hindus, Methodists, etc. would have to be disqualified as not "representing" a big enough section of the American public to "deserve" a seat.
We can easily see how silly this becomes.