From my blog on the Huffington Post 3/25/13.
Yesterday was Palm Sunday, which marked the beginning of Holy Week for Christians. Holy Week celebrates the passion, death, and resurrection of Jesus, culminating this Sunday with Easter.
This particular Holy Week is unique in American history. Tomorrow and Wednesday, the Supreme Court hears oral argument in two gay marriage cases. Also for the first time in American history, the Supreme Court does not include any Protestant justices. This Court consists of six Catholics and three Jews.
Does the current religious makeup of the Supreme Court amount to anything more than the answer to a trivia question? The answer, according to a study I conducted, is yes – to a limited extent.
The study, recently published in Political Research Quarterly, spans every non-unanimous Supreme Court decision from 1953 to 2007 in 11 different legal issues connected to religion. On seven issues, Catholic Supreme Court justices voted differently from Protestant and Jewish justices, even when taking into account underlying differences in each justice’s ideology. Each time a religious difference existed, Catholic justices were more likely to support the position of the Catholic Church.
These legal issues include some, like equality for racial minorities, on which the Catholic Church has embraced a politically liberal position, and others, like abortion, where the Church has taken a politically conservative stance.
It is crucial to understand the context of these findings. While these religious differences in voting are not a statistical fluke, they are also not nearly as powerful in predicting the Court’s decisions as other, more traditional, variables. Thus, I seriously doubt religion is, or ever has been, a conscious consideration of any Supreme Court justice, from any religious tradition. I believe Justice Scalia when he told biographer Joan Biskupic: “I have religious views on the subject [of abortion]. But they have nothing whatsoever to do with my job.”
At the same time, Supreme Court justices are not automatons. Despite Chief Justice Roberts’ insistence to the contrary, judges are not mere umpires who call balls and strikes. The Court rules on difficult legal issues, which have profound moral and social implications. In the past the Supreme Court has ruled on whether police conduct “shocks the conscience.” It is very difficult in these sorts of cases for a judge to check his or her conscience at the courthouse door.
Over the last 50 years, Catholic membership on the Supreme Court has spanned the ideological spectrum, from Justice William Brennan on the left to Justice Clarence Thomas on the right. The middle of the current Court is occupied by Justice Anthony Kennedy, also a Catholic. From 2006-2011, the Supreme Court handed down 116 decisions on a 5-4 vote. Justice Kennedy was in the majority in 94 of those cases, or 81 percent of the time.
Political scientist Frank Colucci’s biography of Justice Kennedy stresses the connection between his judicial views on liberty and the Catholic Church’s commitment to the protection of human dignity. Justice Kennedy has written two important majority opinions in support of gay rights using dignity as a concept.
In Roemer v. Evans, Kennedy viewed a Colorado constitutional amendment that prevented gays from seeking discrimination protection as a disadvantage imposed out of “animosity” to gays. In Lawrence v. Texas, the Supreme Court struck down a state law criminalizing gay sexual conduct. Justice Kennedy began his majority opinion in Lawrence with the following observation: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
Justice Kennedy’s record on abortion, on the other hand, is more conservative. Biographer Colucci describes some of Kennedy’s abortion opinions as containing “paternalistic and moralistic language.” In one abortion case, Justice Kennedy wrote: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child. Whether to have an abortion requires a difficult and painful moral decision…[S]ome women come to regret their choice.”
Which way will Justice Kennedy come down in these two cases? The problem for social scientists is that, while our models predict large trends in human behavior fairly well, it is much more difficult to predict the behavior of one person in only one instance. The questions Justice Kennedy asks at oral arguments this week will provide greater insight into his thoughts on these cases.
As Holy Week continues, I hope my findings will make more Americans aware of how religion shapes a judge’s worldview, in a way similar to a judge’s race, ethnicity, gender, and past life experiences.
However, I hope the next nominee to the Supreme Court is not subject to a senatorial inquisition over his or her faith. Article VI of the Constitution prohibits any religious test as a qualification for holding office in the United States, but we have often fallen short of this ideal. Past Catholic nominees to the Supreme Court have been subjected to humiliating questions about whether their first allegiance would be to the Constitution or papal edict.
America was settled by people seeking freedom to worship in accordance with their consciences, and America was founded by people seeking self-governance in accordance with the Constitution. I believe the justices of the Supreme Court have balanced these sometimes-competing principles commendably.
William D. Blake is a Ph.D. candidate in Government at the University of Texas at Austin and incoming assistant professor of Political Science at Indiana University, Indianapolis (IUPUI). He is the former press secretary of the Interfaith Alliance.