Academic journal article Political Research Quarterly

God Save This Honorable Court: Religion as a Source of Judicial Policy Preferences

Academic journal article Political Research Quarterly

God Save This Honorable Court: Religion as a Source of Judicial Policy Preferences

Article excerpt

Abstract

If Supreme Court behavior is structured largely by the policy preferences of the justices, political scientists ought to consider the source of those preferences. Religion is one force that can strongly shape a judge's worldview and therefore her or his votes. In this article, the author examines the effect of religion on U.S. Supreme Court votes in eleven issue areas plausibly connected to religious values. Catholic justices vote in ways that more closely adhere to the teachings of the Catholic Church than do non-Catholic justices even after controlling for ideology. These results may indicate that Catholic theology is different from Protestant or Jewish theology. It is also possible that on some issues there is not much of a theological difference, but religious values play a more prominent role in public life for Catholic justices.

Keywords

Supreme Court, policy preferences, religion, Catholic

The religious composition of the U.S. Supreme Court has undergone a remarkable transformation. Although in decades past, presidents consciously limited Catholic participation on the Court to one seat (Noonan 1981; Perry 2008), the current Court has six Catholic members. With Justice Stevens's retirement and replacement by Elena Kagan, the current Court has no Protestant members for the first time in its history. This change in religious makeup has prompted journalists who cover the Court to speculate whether religion influences a justice's decision making (Biskupic 2009; Liptak 2010; Lithwick 2009). This question should also be of interest to political scientists, but with a couple of exceptions (Pinello 2003; Songer and Tabrizi 1999) most of the recent literature in judicial politics has overlooked religion as a potential explanatory variable.

If the attitudinal model (Segal and Spaeth 1993) is correct- that behavior on the Supreme Court is shaped largely by the justices' policy preferences-it would behoove political scientists to examine where a justice's preferences originate. It is plausible that a judge's religion would shape her or his political worldview and consequently her or his decisions, especially if judges are sometimes unconstrained by legal doctrine. In other fields of political science, religion has been shown to play a role in shaping the worldview and behavior of legislators (Daynes and Tatalovich 1984; Tatalovich and Schier 1993) and voters (Green, Rozell, and Wilcox 2006; Jelen and Wilcox 2003). Similarly, judicial politics scholars have considered the role of gender and race as drivers of policy preferences (Boyd, Epstein, and Martin 2010; Farhang and Wawro 2004). This article hopes to revive an old tradition in judicial politics research (e.g., Goldman 1975; Nagel 1969; Ulmer 1973) by taking a fresh look at the effect of religion on judging.

The notion of basing judicial decisions on religious values is one that several justices have rejected publicly. Concerning prayer in schools, Justice Brennan stated, "I had an obligation under the Constitution which could not be influenced by any of my religious principles" (as cited in Biskupic 2009, 188). On the issue of abortion, Justice Scalia said, "I have religious views on the subject. But they have nothing whatsoever to do with my job" (as cited in Biskupic 2009, 191). Both of these justices may be right in the sense that they never consciously base their judicial behavior on their religious values, but it would be impossible for a judge to suppress her or his values completely. Courts make rulings on vital moral and social issues, including whether police conduct "shocks the conscience" (Rochin v. California 1952). It would be very difficult in these sorts of cases for a judge to check her or his conscience at the courthouse door.

This article analyzes voting behavior on the U.S. Supreme Court in nonunanimous cases between the 1953 and 2007 terms. This broad time frame allows for a rich comparison of very different Catholic justices, including the liberal William Brennan and the conservative Antonin Scalia. …

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