High Court:  Does religion still matter?

Here’s the kind of question that might violate the rules you learned about proper dinner conversation: Does President Obama’s next Supreme Court nominee need to be a Protestant?

If Justice John Paul Stevens decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.

Perhaps that would mean only that religion is no longer important in the mix of experience and expertise that a president seeks in a Supreme Court nominee. There was a time, of course, in which there was a “Catholic seat” on the court, followed in 1916 with the appointment of the court’s first Jew. The days when one of each seemed sufficient are long over.

Catholics became a majority of the nine-member court in 2006 with the confirmation of Justice Samuel A. Alito Jr. Justice Sonia Sotomayor made it six last summer. And the other two justices besides Stevens are Jewish.

But if the statistics are easy to assemble, the answer to the question “So what?” is elusive.

Supreme Court scholars, political scientists and constitutional experts have long debated how the religion of modern justices affects their decisions on the bench, with results that can only be categorized as negligible or inconclusive.

For every conservative Catholic such as Justice Antonin Scalia, the current member who most openly and publicly embraces his religion, there is a liberal Catholic such as former justice William Brennan, his philosophical opposite. The Catholic majority that in 2007 endorsed a law restricting abortion also staunchly defended the death penalty. The lone member of the court who has said he now believes capital punishment violates the Constitution, in fact, is Stevens, who has always been one of the most adamant about separating church and state.

Clearly, the court thinks of itself as post-religious. Last fall, Alito said he was frustrated that discussions about the court’s Catholic majority became “one of those questions that does not die.” He complained of “respectable people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs.”  Read Article

By Robert Barnes