On June 20, 2002, the Supreme Court handed down its opinion in Atkins v. Virginia, 1 holding that the execution of mentally retarded criminals is a cruel and unusual punishment prohibited by the Eighth Amendment. As part of its reasoning, the Court strove to demonstrate a broad social consensus that execution of the mentally retarded was an unwelcome practice, stating that "representatives of widely diverse religious communities in the United States. have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all'share a conviction that the execution of persons with mental retardation cannot be morally justified.'"2 The Court's cited source for the religious consensus was an amicus brief submitted by the United States Catholic Conference (USCC).3
Though the citation to the USCC's amicus brief was couched in a footnote, it still earned the ire of Justice Scalia's pen. In his scathing dissent, Justice Scalia awarded the "Prize for the Court's Most Feeble Effort to fabricate'national consensus'" to the Court's appeal "to the views of. professional and religious organizations."4 He then specifically addressed the Court's use of the USCC's brief, noting that the Conference is made up of the active Catholic Bishops of the United States, a group whose "attitudes. regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national. criticism."5
Justice Scalia's major complaint about the Court's use of the information contained in the religious amicus brief seems to be that the information is not at all representative. That is, the information is not necessarily true and the Court does not possess the requisite institutional competency to vet any and all information that comes to it through the amici process.6 There is, however, an underlying concern with the Court's citation to such a brief, a concern that has something to do with the group by whom the brief was actually submitted. The Court charges its opinions with a sort of tension when it uses information and arguments presented by religious organizations. Justice Scalia felt that tension in Atkins.7 The United States is a country built on the premise of the separation of church and state, as embodied primarily through the First Amendment to the Constitution.8 Something about the highest court of the nation-the great bastion of neutrality, the last stop on the road of justice-citing to amicus briefs of religious organizations is just odd enough to give readers pause. This pause stems from a general understanding that religion and government should not be linked to certain degrees or in certain ways, and readers may begin to wonder if that which is odd is merely strange, or if it is a serious constitutional problem.
There is, indeed, a First Amendment problem when the U.S. Supreme Court cites to amicus curiae briefs submitted by religious organizations-a problem created by the Court's own interpretation of the Amendment. When the Court cites to amicus briefs submitted by religious organizations, it cloaks that organization with the aura of the Court's power and status in American society. Doing so communicates approval of the organization itself, raising First Amendment concerns. The Court's endorsement of religious organizations through citation in opinions runs afoul of its own Establishment Clause jurisprudence and, in an age when the public eye is critically trained on issues of religion in society, creates certain dangerous harms.
This Note seeks to explain the problems created by such endorsement in four parts. Part I explains the amicus process, including who submits amicus briefs and how, as well as the Court's changing use of amicus briefs over time. Part II describes the evolution of the Court's First Amendment jurisprudence, specifically focusing on the development of the endorsement theory and its move to the forefront in Establishment Clause cases, and also explains why endorsement is the appropriate test under which to evaluate citation of religious amicus briefs. …