Religion In The Supreme Court (Part II)

By:  Scott R. Grubman

In my last article I discussed the religious composition of the Supreme Court, both historically and in the present day.  Since I wrote that article, President Obama has nominated current Solicitor General Elena Kagan to replace the retiring Justice John Paul Stevens.  If Kagan is confirmed by the Senate, she will be the eighth Jewish Justice and the third Jewish member of the current Court.  Significantly, Kagan’s confirmation would bring with it something that has never occurred in the history of this country – a “Protestant-less” Court.  Assuming Kagan is confirmed, the Court will soon be comprised of six Catholics and three Jews, religious groups that make up only around twenty four and two percent of the country’s population, respectively.   

But before one focuses too much on the religious composition of the Court, it is important to examine whether the personal religious affiliations of the Justices really even matter when it comes to the most important aspect of a Justice’s job – ruling on cases before the Court.  Although there are undoubtedly countless methods that might be utilized to determine the correlation between a Justice’s personal religious affiliation and the way in which that Justice might rule on cases before the Court, this article will focus on two hot-button areas of the law that are so intertwined with religious belief that it is often hard, if not impossible, to separate the two—abortion and the death penalty. 


According to the group Catholic Answers, “[t]he Catholic Church has always condemned abortion as a grave evil.”  A 1984 Time Magazine article noted that “[o]pposition to abortion is one of the clearest and oldest moral preachings of the Roman Catholic Church,” dating back to the first century.  It is important to note that, although the Catholic Church hierarchy, including the current Pope Benedict XVI, has always espoused strong opposition to abortion, there are some Catholic theological authorities that permit abortion in certain situations.  For example, many scholars refer to fifteenth century Saint Antoninus as a “pro-choice bishop.”  This title, however, seems misplaced, at least by today’s understanding of what it means to be “pro-choice.”  Even St. Antoninus was against abortion in all but one very limited situation—he believed that in situations where the embryo had not yet been infused with a soul (which he regarded as occurring at forty days for males and eighty days for females), it was legitimate to abort the embryo if that was necessary to save the mother’s life.

It is more difficult to ascertain the “Jewish view” on abortion.  This is largely because, unlike the Catholic Church, there is no centralized Jewish hierarchy or supreme authority.  Not only are there many different sects of Judaism, but views on topics such as abortion vary widely even within an individual sect.  Generally, however, modern-day Orthodox Judaism opposes abortion except where it is absolutely necessary to save a mother’s life.  In modern-day Conservative Judaism, the Rabbinical Assembly Committee on Jewish Law and Standards, which sets halakhic (religious law) policy for the Conservative movement as a whole, takes the view that abortion is justifiable if continuation of the pregnancy might cause the woman severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective.  The Union for Reform Judaism, an umbrella organization which provides direction and leadership to Reform Jews, takes a more pro-choice view when it comes to abortion—not only does Reform Judaism permit abortion where it is necessary for the life or health of the mother, but it is also permissible in cases of rape or incest; where it is determined through genetic testing that the child will have a disease that will cause death or severe disability; or where the parents believe that the impending birth would be an impossible situation for them, among other circumstances.

So how have the Court’s current Justices ruled in cases dealing with abortion?  During his confirmation hearings, Chief Justice John Roberts, a Catholic, stated that Roe v. Wade was the “settled law of the land,” and that nothing in his personal views would prevent him from fully and faithfully applying that decision.  Since joining the Court in 2005, Roberts has cast a vote in only one significant abortion case.  In that case, Gonzales v. Carhart (2007), Roberts joined four other Justices in upholding the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute prohibiting a form of late-term abortion.  Although Justice Clarence Thomas, another Catholic, filed a concurring opinion in Gonzales advocating for reversal of Roe v. Wade, Chief Justice Roberts declined to join that opinion.  Interestingly, all five Justices in the Gonzales majority were Catholic (Roberts, Kennedy, Scalia, Thomas and Alito), whereas all of the dissenting Justices were either Jewish (Ginsburg and Breyer) or Protestant (Souter).

Another of the Court’s Catholic members, Justice Antonin Scalia, has taken what some call an “anti-abortion” stance in several cases.  For instance, in a dissenting opinion in the landmark abortion case of Planned Parenthood v. Casey (1992), a case in which the majority of the Court upheld the central holding if Roe v. Wade, Justice Scalia argued that there is no right to abortion in the Constitution and that it should be left up to the states whether to permit or ban abortions.  Scalia has called for the reversal of Roe in several cases.  In one of those cases, Stenberg v. Carhart, where the Court struck down a state statute banning partial-birth abortion because it did not allow an exception for the health of the mother, Justice Scalia dissented, noting that “[t]he method of killing a human child . . . proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”  Scalia joined his fellow Catholic Justices in upholding the constitutionality of the federal partial-birth abortion law at issue in Gonzales, which like the state law at issue in Stenberg did not contain an exception for the health of the mother.

Another member of the all-Catholic Gonzales majority, Justice Anthony Kennedy, drew some criticism during his nomination process in 1987 for citing Roe v. Wade favorably in a case that he decided as a lower court judge.  Despite his stated support for Roe, Justice Kennedy has made it clear that certain restrictions may permissibly be placed on the availability of abortions.  In Hodgson v. Minnesota (1990), for instance, Justice Kennedy joined four other Justices in upholding a state law requiring notice to both parents before a minor could undergo an abortion.  It was significant to Kennedy that the law at issue contained a judicial bypass provision allowing the parental notification to be bypassed when a court found it necessary.  A couple of years later in Casey, however, to the surprise of many legal scholars, Justice Kennedy joined the controlling plurality opinion reaffirming the central holding of Roe v. Wade.  In 2007, Justice Kennedy wrote the majority opinion in Gonzales, upholding the federal partial-birth abortion statute.

Like Justice Scalia, Justice Clarence Thomas has stated in several cases his belief that the Constitution is silent on the issue of abortion.  In 1992, Thomas joined Scalia and the other dissenters in Casey, which expressed the belief that Roe was wrongly decided and should be overruled.  Justice Thomas filed a concurring opinion in Gonzales, stating his belief that the partial-birth abortion statute suffered no constitutional infirmities.  In his confirmation hearings, Justice Samuel Alito stated that he would look at the issue of abortion with an open mind but refused to state how he would rule on Roe v. Wade if that issue were to come up before the Court.  In his only significant abortion case as a Supreme Court Justice, Alito joined the majority in Gonzales upholding the federal partial-birth abortion law.  Interestingly, although he was not on the Supreme Court in 1992 when the Court reaffirmed the central holding of Roe v. Wade in its Casey decision, then-Judge Alito was a member of the three-judge panel that heard that case in the court of appeals.  Alito dissented in that case, espousing positions which were later overruled by the Supreme Court in Casey.  

Finally, although she has not had the opportunity to rule on any abortion cases since becoming a Supreme Court Justice in 2009, Justice Sonia Sotomayor, as an appeals court judge, upheld the Bush administration’s implementation of the “Mexico City Policy,” which stated that the United States would no longer contribute to organizations which performed or actively promoted abortion as a method of family planning in other nations.  Then-Judge Sotomayor held that the government was free to favor the anti-abortion position if it so chose.  After nominating Sotomayor to the Court, however, President Obama stated that Sotomayor supported a woman’s right to an abortion and would affirm the holding of Roe v. Wade.   During her confirmation hearings, Sotomayor expressed her opinion that Roe was “settled law.” 

Both of the Court’s current Jewish Justices—Ginsburg and Breyer—have generally ruled in favor of abortion rights.  In a 2009 interview for the New York Times, Justice Ginsburg stated in regards to abortion that “the basic thing is that the government has no business making that choice for a woman.”  Ginsburg was raised in a Conservative synagogue.  Justice Breyer, on the other hand, was raised in the Reform tradition.

Death Penalty:

Like abortion, the Catholic Church strongly opposes the death penalty in nearly all cases.  However, there are several Catholic theologians who have approved of the death penalty in some circumstances.  Thomas Aquinas, for instance, accepted the death penalty as a necessary deterrent and prevention method, but not as a means of vengeance.  Similarly, the Council of Trent’s sixteenth century Roman Catechism advocated for imposition of the death penalty in certain circumstances.  More recently, Pope John Paul II suggested that capital punishment should be avoided unless it is the only way to defend society from the offender in question.  In one letter, Pope John Paul II said that punishment “ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.”  The Pope went on state that, because of “steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”  This view has been restated by the most recent edition of the Catechism.  The current Pope, Benedict XVI, also opposes the death penalty.

When it comes to the Supreme Court’s death penalty jurisprudence, the Court’s Catholic majority has been somewhat inconsistent.  While Justice Scalia and Justice Thomas have consistently upheld the death penalty from a variety of constitutional attacks, Justice Kennedy has generally voted to restrict the use of the death penalty.  Although Justice Alito has not had much of an opportunity to express his death penalty views since joining the Supreme Court, he issued numerous rulings as an appeals court judge indicating his support for capital punishment.  Justice Sotomayor has indicated that while she is personally opposed to the death penalty, she does not believe that the practice of capital punishment is unconstitutional. 

Although the Jewish attitude towards the death penalty, for the same reasons mentioned above, is less cohesive than in Catholicism, Judaism generally approves of the death penalty in theory, but establishes such a high standard of proof that, in practice, capital punishment is rarely, if ever, authorized.  The twelfth century Jewish scholar Maimonides, for example, argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing proofs of burden.  Maimonides stated that “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent person to death.”  Both of the Court’s Jewish Justices have generally voted to restrict imposition of the death penalty.  This, of course, does not mean that the Justices have done so based on their Jewish upbringings.  Instead, it is likely that their opposition to capital punishment is more correlated to their left-leaning political ideology than their religion (although some would argue that one’s religion informs that person’s political ideology). 


Although much can be said about how a Justice’s religious affiliation affects his or her rulings in cases before the Court, at least in the areas of abortion and the death penalty, it appears that there is no direct correlation between the two.  Instead, it would appear that a Justice’s political ideology (particularly whether that Justice was nominated by a Republican or Democratic President) is a better indicator of how that Justice will rule on these issues, although this is not always the case (many forget that Justice Stevens, hailed by most to be the Court’s most liberal Justice, was nominated by Republican President Gerald Ford).  It will take some years to see whether the soon-to-be Protestant-less Supreme Court differs materially from the historically Protestant-majority Court.

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