In my May 28th post, I wrote that the next president will be able to exert great influence on the direction of the Supreme Court simply because he or she will have the opportunity to nominate four, possibly five new persons to the Court.
Let me continue to pursue my thoughts on the Supreme Court by asking a question that I did not raise in my former post – namely, does the religion of a Supreme Court Justice matter?
In a country historically averse to political debates about competing faiths, nowhere is frank discussion of religion more taboo than at the United States Supreme Court. Religion is “the third rail” of Supreme Court politics. Any politician or public official who dares to broach the subject will invariably suffer politically. It is not something that is talked about in polite company. And yet, I believe the question should be raised.
With the resignation of Justices David Souter in 2009 and John Paul Stevens in 2010, the last representatives of Protestant Christianity to depart from that body, a new reality forced its way into our consciousness. This means that, for the first time in American history, there were no Protestant Christians – by far the largest religious group in the country – sitting on our highest court. Justice Souter was replaced by the first Hispanic justice, Sonia Sotomayor, who is a Roman Catholic, and Justice Stevens was replaced by Elena Kagan who is Jewish. The new court was thus made up of six justices who identified themselves as Roman Catholics and three justices who identified themselves as Jewish. This shift was in no way a revolution, and while it has not become a matter of public debate, but regarded rather as simply a sign of America’s evolving sensitivities. I certainly do not intend in this post to suggest that it should be otherwise, but I do believe it gives us an opportunity to understand the modern religious consciousness and the rising secular awareness that are both today significant parts of our nation’s makeup. To go any further is risky, as evidenced by the University of Chicago Law School’s Geoffrey Stone, who wrote a controversial blog post in 2007 suggesting that the Supreme Court’s five conservatives likely derived their abortion views from Roman Catholic doctrine. Justice Antonin Scalia – a devout Roman Catholic, and the current Court’s longest-serving conservative – announced a boycott of the university until Stone left the faculty. (Stone obviously has not left, as he is currently listed as the school’s Edward H. Levi Distinguished Service Professor of Law.) An action such as Scalia’s causes me to raise the question and to voice my concerns: Does the religion of a Supreme Court Justice matter?
Throughout our nation’s history, various minority or underrepresented groups in our population have lobbied politically to have someone with whom they identified themselves sit on the Supreme Court. This was particularly important because, at the beginning of this nation’s history, the Court was unanimously white, Anglo-Saxon, Protestant, and male. This fact was, however, hardly noticed by our “founding fathers,” since that was the way the nation understood itself. White, Anglo-Saxon, Protestant males were the power group and thus the ruling class. The Supreme Court merely reflected this American reality, which was equally true in all of the branches of our government. For instance, our presidents, from George Washington to Andrew Jackson, were similarly representative of this ruling class, and their names – George Washington (Episcopalian), John Adams (Unitarian), Thomas Jefferson (Deist), James Madison (Episcopalian), James Monroe (Episcopalian), John Quincy Adams (Unitarian), and Andrew Jackson (Presbyterian) – reflect that reality. It was not until 1840, when Martin Van Buren became president that a person of Dutch background broke the Anglo-Saxon power lock on the White House.
The first Chief Justice of the Supreme Court was John Jay of New York and the other members of that original Court were named James Wilson, William Cushing, James Iredell, John Blair, and Thomas Johnson – all notably Anglo-Saxon names. Since the constitution does not fix the number of Supreme Court justices, that detail was left for Congress to decide. In that first Court, which began sitting in 1789, there were thus only six justices. That number was moved to seven in 1807, to nine in 1837, to ten in 1863, and then back to nine in 1869.
The number of justices remained at nine until in 1937 when President Franklin Roosevelt announced a controversial plan to expand the Supreme Court to as many as fifteen judges, allegedly to make the Court more efficient. Critics immediately charged that Roosevelt was trying to “pack” the Court and thus neutralize those Supreme Court justices who were hostile to the New Deal. The critics were correct.
During the prior two years, the High Court had struck down several key pieces of New Deal legislation on the grounds that the laws delegated an unconstitutional amount of authority to the executive branch and the federal government. Emboldened by his landslide reelection in 1936, President Roosevelt issued a proposal in February 1937 to provide retirement at full pay for all members of the Court over seventy. If a justice refused to retire, an “assistant” with full voting rights was to be appointed, thus ensuring Roosevelt a liberal majority. Most Republicans and many Democrats in Congress opposed the so-called “court-packing” plan.
In April, however, before the bill came to a vote in Congress, two Supreme Court justices (Chief Justice Charles Evans Hughes and Justice Owen Josephus Roberts) came over to the liberal side and by a narrow majority upheld as constitutional the National Labor Relations Act and the Social Security Act. The majority opinion acknowledged that the national economy had grown to such a degree that federal regulation and control was now warranted. Roosevelt’s reorganization plan was thus unnecessary, and in July, the Senate struck it down by a vote of 70 to 22. The failure of the bill preserved the size of the United States Supreme Court at nine justices, as it had been since 1869, and as it remains to this day.
The first “minority” to gain access to the Court came when Roman Catholic Roger B. Taney was appointed not just to Justice, but to Chief Justice of the Court in 1836 by President Andrew Jackson. I believe it is safe to say that it did not hurt Taney in the appointment process that his law partner in Maryland was Francis Scott Key, the author of our national anthem. Taney went on to have a rather undistinguished career and today is remembered primarily for his racially insensitive ruling in the Dred Scott case, which was later overturned. Taney’s appointment, however, broke the exclusive Protestant domination of the Court and opened the door for the inclusion of Roman Catholics on the Court. There have now been thirteen Roman Catholic justices who have served with varying levels of distinction from that day to this. When Joseph McKenna was appointed by President William McKinley in 1898, it became a major political concern that one seat on the high court be “reserved” for Roman Catholics. In 1949, President Harry S. Truman declined to accept the claim of a “Catholic seat” on the Court; the period 1949-1956 was the only time since l898 that no Roman Catholic served there. But in 1956, President Dwight D. Eisenhower was persuaded that a Roman Catholic should be appointed, and a search produced the name of William J. Brennan (1956-1990), a justice of the New Jersey Supreme Court. Cardinal Francis Spellman was consulted and confirmed that Brennan was indeed a practicing Roman Catholic. But an acquaintance said of Brennan, “Those who knew him realized that, although he was a decent person and God-fearing, he was not a zealously religious man. He was Catholic with a small ‘c.’” Eisenhower’s wish to please Roman Catholics by naming one of their own to the Court led, ironically, to the appointment of a man who would use his power to undermine Roman Catholic interests at every point, for Brennan was the strictest of separationists, and his position seems to have been motivated in part by his liberal religious outlook.
The idea that there needed to be one “Catholic seat” faded in time with the appointments of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Chief Justice John Roberts – all Roman Catholics. In 2008, with the Alito appointment, Roman Catholics became the majority on the court with five votes. That majority was increased to six with the nomination of Justice Sonia Sotomayor by President Obama.
The Jewish minority in America had its first representative on the high court when President Woodrow Wilson appointed Justice Louis Brandeis in 1916. In time, Brandeis became one of the great intellectual giants in Supreme Court history. He was followed by Justice Benjamin Cardozo, appointed by Herbert Hoover in 1932 and the two overlapped for seven years, effectively dispensing with the idea of a “Jewish Seat.” Later justices from a Jewish background included Justices Felix Frankfurter, Arthur Goldberg and Abe Fortas. Few people even noted that President Clinton’s two appointments to the High Court – Ruth Bader Ginsburg and Stephen Breyer – are both Jewish. Let me just say in passing that in our increasingly eclectic and diverse religious nation, Justice Breyer’s daughter, Chloe, is today an Episcopal priest serving as the Executive Director of The Interfaith Center of New York. I like that!
African-Americans were the next minority to gain access to membership on the Court when the great Civil Rights lawyer, Thurgood Marshall, was appointed by President Lyndon Johnson in 1967. His appointment thus effectively established a “Black Seat” and his replacement, Clarence Thomas, appointed by President George H. W. Bush confirmed that tradition. It appears that African-Americans have not yet escaped the idea that one seat on the Court is reserved for people of color.
Women made their first appearance on the Court with the appointment of Sandra Day O’Connor by President Ronald Reagan in 1981. She was followed by Ruth Bader Ginsburg in 1993 and Sandra Sotomayor in 2009, when she became the first Hispanic justice. With the appointment of Elena Kagan, it appears to indicate that there is no longer a “Woman’s Seat.”
So we now have a Court of ethnic variety (European, African and Hispanic), religious variety (Roman Catholics and Jews) and gender variety (six men, three women). In the process, however, the Protestant majority no longer has representation on the Court at all, with Roman Catholics holding six seats and Jews holding three. The question thus arises as to whether or not this is a problem. I do not think it is, but I do think it could be some day. Allow me to explain.
The nation was founded on the yearning of people for religious freedom in Europe after centuries of religious conflicts from the time of the Crusades through to the English Civil War. That yearning found expression in a clear constitutional provision in America, which separated church and state (a fact that some Tea Party members like to challenge). Thus, the ability to worship without prejudice in any religious tradition one chooses, or not to worship at all, is guaranteed to every citizen of the land. This provision in our Constitution means that it is not one’s religious practice, but the imperialistic religious mentality so often found inside religious systems, that has to be publicly denounced in order for a person to serve this government under the Constitution. By “imperialistic religious mentality,” I mean the claim that one particular religious system possesses the whole truth and nothing but the truth, or is the only pathway to God and, as a consequence, can judge those who are not part of that faith system to be somehow inadequate or ill-informed. The values of any particular religious system, as beautiful as those values may be, are not to be imposed on the people of this land by law.
When our first Roman Catholic president, John F. Kennedy, was elected, he declared in the campaign that he would not allow his faith or the positions of his church to influence his decisions as president. That seemed to be an acceptable statement in 1960 even to the Catholic hierarchy in America and as far as I have been able to determine he lived up to that declaration. It seemed that we had come a long way since the days of the 1928 presidential candidacy of Al Smith, Governor of New York, whose landslide defeat by Herbert Hoover was due in part because he was a Roman Catholic. But when Roman Catholic Geraldine Ferraro was nominated to be vice president on the Walter Mondale ticket in 1984, and when Roman Catholic John Kerry was the presidential nominee in 2004, and when Roman Catholic Joe Biden was nominated as the vice presidential candidate in the 2008 election that policy appeared to no longer be acceptable to America’s Roman Catholic bishops. Ferraro, Kerry, and Biden (and others as well) were all told that because the positions they supported politically on abortion, homosexuality and on end-of-life counseling were not acceptable to their Church, they would not be welcomed to receive communion at Roman Catholic altars since they were in effect, publicly out of communion with Roman Catholic teaching. If a justice on the Supreme Court were subjected to that kind of ecclesiastical pressure from his or her church, such intimidation would indeed constitute a problem for this democracy. Issues regarding a woman’s right to privacy, abortion, and the freedom to choose when to die are all issues that could conceivably come before the Court in the near future. Can the Roman Catholic justices separate their constitutional responsibilities from the teachings of their church?
Well, one of the justices may have a problem with such a separation. I am referring to Justice Antonin Scalia. Early on, Justice Scalia embraced Sir Thomas More as a hero and historical comparison. Sir Thomas More, Lord Chancellor of England during the reign of King Henry VIII, refused to sanction the annulment of the king’s marriage to Catherine, of Aragon and died a martyr for his religious principles. (As an aside, Justice Scalia arrived at President Obama’s second inauguration wearing a replica of More’s hat. Was this act a sartorial protest against the birth-control mandate?)
In his Georgetown University valedictorian address in 1957, Scalia urged his fellow classmates not to separate their religious life from their intellectual life. “If we will not be leaders of a real, a true, a Catholic intellectual life, no one will!” he said. “The responsibility rests upon all of us whatever our future professions.” Justice Scalia represents the living embodiment of the besieged religious dissenter, a man who believes that the only remaining front in the American war for civil rights is the battle to defend religion and the religion in question here is, of course, Christianity. Two decades ago, no one could have imagined that five members of the Court would align themselves with that posture.
But in the years since Justice Samuel Alito joined the Court in 2006, replacing the centrist Justice Sandra Day O’Connor, the five conservatives on the bench have shown less and less consideration for the rights of women, workers, voters, minorities, the elderly, the environment, the poor, and most criminal defendants – and they have shown growing and seemingly boundless patience for religious objectors. The Court is currently hearing, and will continue to hear, passionate challenges to a secular society from religious dissenters seeking not just the right to deny contraception to their workers, but the right to pray at town-council meetings and the right to deny services to same-sex couples. Judicial biographer, Bruce Allen Murphy in his book, Scalia: A Court of One argues that Justice Scalia’s judicial conservatism is informed as much by his highly traditional Roman Catholicism, mixed with his political partisanship, as by his reading of the Constitution. Murphy may be correct in saying that Justice Scalia is “a court of one,” but in the religious-rights revival now in progress in America, one is perhaps all that is needed.
And what about the Jewish justices on the high court? I do not sense that they have the same problem of a conflict between faith and interpretation of the law as I see in their non-Jewish counterparts. For instance, I do not know of a single Jewish layperson, rabbi, legislator, or judge who have wanted to force circumcision, or kosher dietary laws, or Sabbath day observance on the body politic of this nation. But I have known Roman Catholics and Evangelical Christians who have wanted to force their convictions about birth control, or abortion, or contraception, or marriage equality on the body politic, so I am eager to see how the Court will handle itself on issues when religious teaching come into conflict with interpreting the law in an increasingly secular society. Stay tuned.