Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?

By Breger, Sarah; Cooper, Marilyn et al. | Moment, January-February 2015 | Go to article overview

Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?


Breger, Sarah, Cooper, Marilyn, Gross, Rachel E., Schwartz, Amy E., Moment


A MOMENT SYMPOSIUM WITH

ROBERT BARNES

LYLE DENNISTON

TONY MAURO

SARAH POSNER

LESLIE C. GRIFFIN

STEPHEN WERMIEL

MARSHALL BREGER

EMILY BAZELON

DAHLIA LITHWICK

When it comes to religion, the Supreme Court of the United States has undergone a dramatic transformation. For centuries, the justices were largely Protestants. Now, for the first time in its history, the bench is composed of three Jews and six Catholics, including several devout Catholics.

As the Court's makeup has changed, so have attitudes toward religion. Just a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation's legal system. That thinking has begun to change, particularly in light of recent cases in which religion has played a prominent role, such as Town of Greece v. Galloway (the Court ruled that public prayer was appropriate before town hall meetings) and Burwell v. Hobby Lobby (the Court ruled that small-business owners didn't have to provide contraception coverage to employees if doing so would conflict with their religious beliefs).

In late 2014, Moment partnered with the Religious Freedom Center of the Newseum Institute in Washington, DC, to hold a live symposium on this important topic. For this print symposium, Moment editors interview an expanded group of legal thinkers.

ROBERT BARNES

The justices' beliefs affect how others approach them

Recently, I was talking to a prominent law professor who was once a Supreme Court clerk. He told me that when he was clerking in the 1980s, if anyone had asked him if any of the justices were religious, he would have said no. None of them talked about it, and he saw no real evidence of them being religious. But he said he thought that this Court was very different.

The current justices talk about their faith much more. Certainly Justice Antonin Scalia is the most outspoken about it. He has said that intellectuals have to be what he called "fools for Christ" and to be able to say that some things aren't about intellect, they're about faith. And when you think about the justices, they all have an interesting connection to religion. Justices Sotomayor and Thomas talk about how parochial schools lifted them out of poverty in neighborhoods in which education was not terribly valued. Justice Kagan, who probably would say she is not that religious, nonetheless says she had religious instruction three times a week. She was the first girl to be a bat mitzvah at her synagogue. (Being Justice Kagan, she said the experience was good, not great.)

I don't know whether any of us could say whether this new outspokenness about religion affects the way justices decide cases. I think that the difference has come in the way that people--advocates, lawyers--approach issues when they come to the Court and in some of the cases that the Court decides to takes on. For instance, in the Hobby Lobby case, the question was whether private business owners had a right to say that their religious objections exempt them from offering certain kinds of contraception. All the briefs were extremely respectful of the idea that these folks had deeply held religious beliefs. There was little challenge to whether or not they actually held those beliefs, or whether those beliefs were a pretext for not wanting to provide these services. I think that's partly because they knew it wouldn't go over terribly well with the justices to do that.

Barnes covers the Supreme Court for The Washington Post.

LYLE DENNISTON

The justices' values are influenced by religion

In the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters. But more and more often, this is no longer the case. I'm not suggesting that this is inappropriate, but there used to be a studied effort to avoid bringing one's own religious values into Court discussions. …

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