By Mike Dorf
Writing in the NY Times Week in Review, Adam Liptak notes that Justice Stevens is the only Protestant on the Supreme Court and that should he be replaced by either Judge Garland or SG Kagan (both Jewish), for the first time in U.S. history, there will be no Protestants on the Court. The article goes on to note a consensus (from which U Chicago's Geoff Stone is portrayed as a rare dissenter) for the proposition that religion is simply not a significant factor in Supreme Court identity politics today. Whereas in the past, Presidents and Senators worried about geographic balance and religious identity in picking Justices, according to this consensus, now they worry about race, sex and ethnicity. I mostly agree with this consensus but I want to register three caveats.
1) While I agree that the selection of an otherwise qualified and ideologically mainstream Protestant, Catholic or Jew would not cause much of a religion-based stir, it's certainly possible that the nomination of a Muslim, Buddhist or Hindu (or Jain, Zoroastrian, Baha'i, etc.) would make waves. At the very least, it would create positive buzz about an historic "first," and there would almost certainly be some backlash. I pretty strongly suspect that the backlash would be at the margins of American politics, but then, as recent events (e.g., calls for secession, nullification, Confederate remembrance) show, those margins are pretty wide. So the short of it is we don't know how irrelevant religion is. We don't even know whether a Mormon nominee would face hostility on that basis. There was talk years ago about the possibility of putting Orrin Hatch on the Supreme Court; most of it did not focus on his religion; but the idea never progressed far enough to test the question. (Speaking of Sen. Hatch, props to him for his gracious remarks about Justice Stevens.)
2) If sectarian affiliation (as among Protestants, Catholics and Jews) is no longer especially salient, religiosity might be. Justices Breyer, Ginsburg and Stevens are quite secular in their outlook and their behavior. For all I know, one or more of them is an atheist. By contrast, the Court's conservative Justices tend to be more religious, both in terms of church attendance and belief. Now of course it's possible to be personally very religious and take a strongly secular view of the law. And I don't think for a minute that any Justice thinks to himself or herself along the following lines: "I'm going to vote this way in that case because that's the result favored by my religious principles." I'm sure they all try to decide cases based on impersonal legal principles. But it would be strange if religiosity played no role in shaping a Justice's overall attitude towards the law. Despite the talk of "calling balls and strikes" or "just following precedent" we seem to accept from SCOTUS nominees at their confirmation hearings, just about everyone expects background--including lots of factors but not excluding religiosity--to influence decision making. It would thus be odd if interest groups, Senators, and even Presidents interested in the likely pattern of future votes of a nominee did not consider religiosity, at least as prima facie evidence of a prospective Justice's future votes.
3) Finally, we might ask about what I shall infelicitously call "religulousness" (with a nod to Bill Maher), by which I mean (as Maher did not), something like "attitude towards religion." Justice William O. Douglas was not, as far as I am aware, an especially religious man. But his opinions about religion manifested a view that it is generally a force for good that should be accommodated. E.g., Zorach v. Clauson ("We are a religious people whose institutions presuppose a Supreme Being.") That did not make him reliably "conservative," even on issues of religion. Thus, Justice Douglas was the lone dissenter from the Court's opinion (written by CJ Earl Warren) upholding a Sunday closing law against an Establishment Clause challenge. See McGowan v. Maryland. But in free exercise cases, his esteem for religion and spirituality led him to an accommodationist position. Obviously, these issues are complicated. I would classify Justice Scalia as "religulous" and Justice Stevens as "irreligulous," but they agreed in the peyote case that the free exercise clause does not require exemptions from generally applicable laws. Their different attitudes towards religion manifest themselves in Establishment Clause cases, where Justice Scalia would permit some church-state intermingling that Justice Stevens would forbid. One could attribute these differences simply to different views about the law, but I suspect that there is also something else going on. In Rawlsian language, the less religulous a Justice is, the more likely he will be to insist on "public reason," i.e., he will be skeptical of asserted moral grounds for government policies that appear to define morality in accordance with traditional religious notions, independent of a narrower notion of the harm principle. Thus, to choose a currently salient example, a religulous Justice would be more likely to accept an asserted government interest in "preserving traditional marriage" as a ground for denying same-sex marriage than would an irreligulous Justice.
To be clear, I am NOT saying that religion, religiosity or religulousness is anything like a perfect proxy for views on any particular legal question or even for broader jurisprudential views. I am instead identifying what I suspect are correlations. Any more definite statement on these matters must await a more rigorous definition of religulousness and empirical study of its effects. (I'm meeting shortly with Jeffrey Segal, uber-Court-number-cruncher; maybe I'll ask him whether there are any data on something like this.)