Religion In The Supreme Court (Part I)

By: Scott R. Grubman    

Depending on how you define the term, anywhere between sixty-five to around seventy percent of United States Supreme Court Justices, both past and present, identified themselves as “Protestant.”  Of the various Protestant sects, the Episcopalians claim the highest number of Justices—thirty-five former Justices, or approximately one-third of all current and former Justices—followed by the Presbyterians at nineteen.  By contrast, there have only been twelve Catholic Justices on the High Court, which is just a little over ten percent of past and present Justices.  The first Catholic Justice was Roger B. Taney, who was nominated Chief Justice by President Andrew Jackson in 1836.  The most recent Catholic Justice is Sonia Sotomayor, who was nominated by President Barack Obama in May 2009.  Additionally, there have been seven Jewish Justices—the first one coming in 1916 with the nomination of Louis Brandeis by President Woodrow Wilson (it is reported that, in 1853, President Millard Fillmore offered to appoint Louisiana Senator Judah Benjamin, who would later become the Secretary of State for the Confederacy, to the Court.  Benjamin declined the offer, a practice not uncommon in that period), and the most recent one coming with the addition of Justice Stephen Breyer by President Bill Clinton in 1994 (in fact, both of President Clinton’s nominees to the Supreme Court were Jewish—Justice Breyer and Justice Ruth Bader Ginsburg).  Pentecostals, Mormons, Muslims, Buddhists, and Hindus are among the major world religions and denominations that have yet to be represented on the Court.  Further, there has never been a self-identified atheist on the Court, although Justice Benjamin Cardozo, born and raised in the Jewish tradition, began to identify himself as agnostic later in life. 

Although the Supreme Court was majority-Protestant for most of its history, this is no longer the case.  In the late 1990s, when Justice Clarence Thomas left the Episcopal Church to return to Catholicism, the tradition in which he was raised, the Court, for the first time in history, lost its Protestant majority.  And with the more recent additions of Chief Justice John Roberts and Associate Justices Samuel Alito and Sotomayor (all Catholic), the Court is now, for the first time in its history, majority Catholic.  The current Court is comprised of six Catholics (Roberts, Kennedy, Scalia, Thomas, Alito and Sotomayor), two Jews (Breyer and Ginsburg), and only one Protestant (Stevens).  With Justice Stevens’ recent announcement that he will leave the Court after the current term expires, the Court is facing a possibility that it has never come close to facing before—the possibility of a “Protestant-less” Supreme Court.  In light of this impending possibility, many have called on President Obama to replace Justice Stevens with a fellow Protestant, thereby creating a so-called “Protestant seat,” to go along with the “African American seat” and the “Jewish seat” already in existence.  

Justice Stevens’ impending retirement has brought to the forefront the debate over whether a potential nominee’s religious affiliation should be something that the President takes into consideration in determining who to nominate to the Court.  For example, Cynthia Rigby, the W.C. Brown Professor of Theology at Austin Presbyterian Theological Seminary in Austin, Texas, has been quoted as saying that religious affiliation should be one of the many factors the president takes into consideration in choosing a Supreme Court Justice, along with gender, race, and demographic origin.  On the other side of the debate are individuals like Matthew Wilson, an associate professor of political science at Southern Methodist University, who do not believe that religion should play any role in the selection process.  Not surprisingly, President Obama has not indicated whether he will take religion or any other demographical category into account when choosing Stevens’ replacement.  Instead, the President has said that he will choose a candidate with 

an independent mind, a record of excellence and integrity, [and] a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people. 

Since Justice Stevens announced his retirement early last month, a “short-list” of potential replacements has emerged.  It is important to note that this list is not an official list and may not include all of the potential candidates being considered by President Obama.  At any rate, it is widely believed that the list contains nine names.  After some research, I was able to identify three of these potential nominees as Jewish, one as Catholic, and two as Protestant.  However, I was not able to identify the religious affiliation of the three other potential nominees.  Based on this information, though, there is a significant chance that Justice Stevens will be replaced with a non-Protestant, thereby creating a “Protestant-less” Supreme Court for the first time in American history.  This is particularly striking considering that, according to a survey conducted by the Pew Forum on Religion & Public Life in 2007, slightly over fifty percent of Americans identify themselves as Protestant, compared to the less than twenty-four percent that identify themselves as Catholic and the less than two percent that identify themselves as Jewish.  

Regardless of who the President chooses to replace Justice Stevens, it is clear that the religious composition of the Court (over sixty-six percent Catholic, twenty-two percent Jewish, and only eleven percent Protestant) is in no way representative of the religious composition of the American public at large.  The question remains, however, whether this really matters.  After all, the Supreme Court, unlike the Congress, was not designed to be representative of the people.   Instead, it was designed to function as a co-branch of government independent of the other two branches.  Given this, should it matter that the religious composition of the Court is extremely skewed compared to the religious composition of Americans in general?  In order to answer this question, it may be necessary to first examine whether the personal religious affiliations of the individual Justices play any role in how those Justices rule in cases before the Court.  In the second installment of this article, I will attempt to answer this question by focusing on two issues that are so entwined with religion that it is difficult to separate the two—abortion and the death penalty

FURTHER READING: 

  • Dan Gilgoff, A Supreme Court without Protestants?, available online at http://www.cnn.com/2010/POLITICS/05/03/supreme.court.protestants/index.html.
  • Religious Affiliation of the U.S. Supreme Court, available online at http://www.adherents.com/adh_sc.html.  It is important to keep in mind that this article was written in 2006, before Justice David Souter (a Protestant) retired and was replaced by Justice Sotomayor (a Catholic).
  • U.S. Religious Landscape Survey, Report: Religious Affiliation (2007), available online at http://religions.pewforum.org/reports.

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