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‘‘He was influential to the point of dominance on the Supreme Court … The death of Justice Antonin Scalia marks a major turning point in American political history,” wrote historian Godfrey Hodgson after the famously conservative and Catholic Supreme Court Justice Scalia died in February 2016. As Hodgson pointed out, the Supreme Court’s role in American society is hugely important, and hugely political. In recent years the Court has decided a whole range of cases which profoundly affect the nature of American society: on gun control, affirmative action, freedom of religion, campaign finance, voting rights, abortion, and the right of same-sex couples to marry. In 2000, the Supreme Court effectively handed the Presidency to George W Bush by terminating a recount of disputed votes in Florida. The importance of the Supreme Court in shaping American society can hardly be overstated.
Nine justices sit on the Court. Following Scalia’s death, President Obama nominated Merrick Garland to replace him. At the time of writing, Republicans in Congress are blocking Garland’s appointment, arguing that a change of such importance should be delayed until after the Presidential election in November. A glance at the political dividing lines on the Court shows why Garland’s appointment would be so significant. On many decisions the justices have divided 5-4, with four avowedly conservative justices (Scalia, Thomas, Roberts and Alito) on one side and four avowedly liberal justices (Ginsburg, Breyer, Kagan and Sotomayor) on the other. In the middle, often casting the decisive “swing vote”, has been Justice Anthony Kennedy. Kennedy, although not always reliably in the conservative camp – he voted to accord constitutional protection to same-sex marriage, for example – has tended to side much more with the conservatives than the liberals, giving the court, on most issues, a 5-4 conservative majority.
In the long history of the Supreme Court, this conservative majority is relatively recent. A few decades ago the Court seemed to epitomise American liberalism. In the 1950s it forced through racial desegregation; in the 1960s it established new rights for criminal defendants; in 1973, in Roe v Wade, it interpreted the constitutional right to privacy to protect a woman’s decision to have an abortion. The conservative complexion of the current Court – at least until Scalia’s death – reflects the fact that of the last 16 successful Supreme Court nominations, 12 have been made by Republican Presidents. Hence since the 1960s the court has gradually moved to the right. Justice Kennedy, the current “swing vote”, is politically, legally and constitutionally more conservative than his predecessor, Sandra Day O’Connor, who in turn was more conservative than her predecessor as the court’s swing vote in the 1970s, Justice Louis Powell. But if Obama secures Garland’s appointment, and if Hillary Clinton wins in November, within a few years the Supreme Court could look very different. Three justices – Breyer, Kennedy and Ginsburg – are over 75. There are likely to be several vacancies over the next few years, so the next President will be able to influence the political colour of the Court for decades to come. Scalia was a forceful, consistently conservative justice. Replacing him with a liberal, even a moderate centrist like Garland, would potentially be the beginning of another liberal heyday.
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There’s another respect in which the composition of the Supreme Court has changed dramatically in recent years: in the religious beliefs of its justices, and, some would argue, the influence of religious belief on its judicial decision-making. For most of its history the Supreme Court has been overwhelmingly dominated by judges of Protestant – or, more specifically, Episcopalian – background. Now the religious composition of the court is very different: of the nine justices including the recently deceased Scalia, six are Catholic and three are Jewish; none are Protestant (and indeed none are atheists).
Does this matter, and does it influence the Court’s decision-making? Nominees for the Supreme Court undergo the most thoroughgoing and intrusive confirmation process imaginable, with every past utterance trawled over for clues to their thinking. But curiously, nominees rarely get asked directly about their religious beliefs. This reflects a view – a conceit, some would say – that the religious beliefs of justices shouldn’t be relevant, because under the US Constitution church and state are separate. That separation is embodied in the “Establishment Clause” of the First Amendment to the US Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
One of the founding fathers, Thomas Jefferson, famously described the Establishment Clause as erecting an impregnable “wall of separation” between church and state, and many Supreme Court decisions have reiterated Jefferson’s words. But in practice things have rarely been that simple. Many cases before the Supreme Court have raised questions about the Clause’s interpretation. Should churches enjoy tax and parking privileges? Should chaplains be appointed for government functions? Should the phrase “so help me God” appear in the oaths of elected officials?
Throughout the 20th century two competing views of the Establishment Clause did battle on the Supreme Court: strict separationism versus “accomodationism” towards religion. In the mid-20th century, with the Supreme Court banning state aid to religious schools, and later banning religious observance in public education, the separationists seemed to get the upper hand. More recently accomodationism seems to have gained sway, as exemplified by decisions like Town of Greece v Galloway, a 2014 Supreme Court case on the legality of town council prayers. In this case, which mirrored litigation here in the UK, two members of a town council argued that the council’s practice of opening its meetings with a Christian prayer was a violation of the Establishment Clause. By a 5-4 majority, the Court ruled that the prayers were permissible and that there was no violation. The majority decision, written by Justice Alito, held that the prayers were consistent with longstanding tradition and “non-discriminatory”. But in recent years the influence of religion on the Supreme Court has seemed to go well beyond cases involving the Establishment Clause, arguably affecting the Court’s decisions in broader social controversies such as abortion.
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Developments in Supreme Court jurisprudence undoubtedly reflect wider trends in American society. John Jeffries, of Virginia University law school, argues that the secularism which came to dominate American life in the mid-20th century, illustrated by the Supreme Court’s ban on state support for religious schooling, drew its support from a coalition of mainstream Protestants and Jews. But in his view this coalition was less about principled secularism than about a fear that Catholics would be the main beneficiaries of religious schooling; a fear that drew heavily on deep anti-Catholic prejudice in American society dating back to the nativist, anti-immigrant, anti-Irish movements of the 1920s.
In the later 20th century, several things changed. Catholics forced their way into the mainstream of American society, a trend evident by 1960 with John F Kennedy’s Presidential victory. And within US Protestantism, politically moderate Episcopalianism loss ground to evangelical Christianity: a change brilliantly analysed by Kevin Phillips in his 2005 book American Theocracy. As Phillips showed, from the 1960s onwards the Southern Baptist Convention – previously a marginal seceding minority of the US Baptist Church – became dominant not only in the Baptist denomination but in American Protestantism generally. Although the Southern Baptist Convention is not a monolithic force, it speaks overwhelmingly in right-wing, evangelical Christian voices and includes many “Christian Reconstructionists” who openly attack the separation of church and state. The unsuccessful Republican Presidential contender Ted Cruz, whose chief religious adviser recently claimed that “separation of church and state is a myth”, is a good example of this strain of thinking. As a result of these underlying societal changes, the separationist coalition of mainstream Protestants and Jews lost ground to a vocal anti-secularist coalition of evangelical Protestants and Catholics; one which was then directly empowered by Republican Presidential appointments to the Supreme Court, Scalia being the foremost example.
So how important is religion now in Supreme Court decision-making? Scalia made no secret of his traditionalist Catholic beliefs. At times he seemed to openly welcome the hostility of secularists and liberals, famously telling students in one speech: “God assumed from the beginning that the wise of the world would view Christians as fools … and He has not been disappointed. Devout Christians are destined to be regarded as fools in modern society … We must pray for courage to endure the scorn of the sophisticated world. Have the courage to have your wisdom regarded as stupidity. Be fools for Christ.”
Yet whilst openly flaunting his muscular Catholicism, Scalia also maintained that his own judicial decision-making had absolutely nothing to do with religion, and everything to do with his core judicial philosophy, that of “originalism”. The constitution, Scalia maintained, should be interpreted according to the meaning of its words at the time they were written. Anything else, argued Scalia, was unacceptable judicial activism. Scalia was open about his personal opposition to abortion as a devout Catholic, but maintained that the reason why he wanted to overturn Roe v Wade had nothing to do with religion; it was simply that in applying his philosophy of interpreting the constitution according to its original meaning, he could identify no “right” to reproductive choice in the words of the constitution.
The founding fathers, he argued, clearly never meant to protect the right to abortion. Nor did they mean to create a right to same-sex marriage. In Scalia’s view, for judges to interpret the constitution as protecting these rights is an illegitimate usurpation of the legislative function – judges are appointed to interpret laws written by legislators, not to become legislators themselves. So, Scalia claimed, the debate about Roe v Wade simply reflected the age-old debate about constitutional interpretation, the debate that perpetually divides liberal and conservative judges (including in the UK as we grapple with the interpretation of the European Convention on Human Rights): should the text of a constitution be a living instrument, its meaning constantly updated to reflect changing social values, as liberals tend to think, or is this unacceptable judicial activism, as conservatives tend to believe? Moreover, Scalia pointed out, there were cases where his decision-making clearly conflicted with the views of his church, for example in his strong support for the death penalty.
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Yet despite Scalia’s denials, there is abundant evidence that the religion of some Supreme Court justices, Scalia included, has influenced their decision-making. The American legal scholar Geoffrey Stone waded into this controversial territory when he analysed the cases since Roe v Wade concerning the constitutional right to an abortion. Roe v Wade was decided in 1973. Since that decision some ten new justices have been appointed; they have cast a total of 45 votes in cases relating to aspects of the abortion issue (on such questions as partial-birth abortion). Of those, 22 votes were cast in support of abortion rights; 23 were cast to reduce abortion rights. Of those ten new justices, the five Catholics cast 94 per cent of their votes in favour of reducing abortion rights; the five non-Catholic justices (two Jewish and three Protestant) cast 75 per cent of their votes in favour of abortion rights. As Stone noted, “That’s a considerable difference.” As a control test, Stone also analysed the percentages based on whether the justice was appointed by a Republican or a Democrat President; and found the same religious influence. Thus, Catholic justices appointed since Roe by Republican presidents cast 94 per cent of their votes against abortion rights, whereas non-Catholic justices appointed since by Republican Presidents cast 71 per cent of their votes in support of abortion rights. And Stone applied a further control, examining decisions in areas not influenced by religion, to see whether those Catholic justices were just a more conservative group generally, irrespective of religion. It demonstrated that they were not.
The clear import of Stone’s research was that religious beliefs affected decision-making. “These justices have failed to reflect the fundamental difference between religious belief and morality,” wrote Stone. “This can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a foetus is a profoundly difficult and rationally unresolvable question … It is not for the state – or for the Justices of the Supreme Court – to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.”
For many this was a deeply offensive conclusion. Scalia, previously a friend of Stone, was so upset by the research that he refused to speak to Stone ever again. But Stone’s data was unarguable. And in any case, as he made clear, he was not suggesting a simplistic reductive relationship between the religion of a Supreme Court Justice and his or her decision-making, or that Catholics should be disqualified from sitting on the Court; rather, that justices of any denomination who allowed their personal religious faith to dictate their decision-making should be so disqualified. As Stone pointed out, there have been Catholic justices who clearly have not succumbed to that temptation: for example Justice William Brennan, a key figure on the Supreme Court in its liberal heyday, a fervent supporter of Roe v Wade, and a practising Catholic. Having particular religious beliefs need not translate reductively into particular decisions. But from the copious evidence amassed by Stone, it seems clear that some Catholic justices have been inclined to let their religious beliefs affect case outcomes, perhaps reflecting the Catholic tradition of trying to influence secular authority for the benefit of the faith. By contrast the Jewish justices – as exemplified by the powerful minority judgement authored by Justice Elena Kagan in the Galloway case, and perhaps reflecting her faith’s historic experience of persecution – have tended to emphasise the importance of respect for religious pluralism, and have tended to display stronger separationist instincts.
What this clearly demonstrates is that the religious beliefs of judicial nominees to the Supreme Court are a legitimate area of scrutiny. In a country that at least nominally observes a constitutional separation of church and state, the role of religion on the Supreme Court deserves more open acknowledgement. As the demographic makeup of American society continues to shift, and as forthcoming appointments dictate the complexion of the Court for many years to come, the influence of religion on the Court undoubtedly merits much greater public debate.
