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High Court: Does religion still matter?

By Robert Barnes
Washington Post Staff Writer
Monday, March 8, 2010; A11

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."

Scalia has said he would be "hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic." Ginsburg has said that whereas her predecessors on the court have been known collectively as the "Jewish justices," she and Breyer are "justices who happen to be Jews."

Each justice's religious experience is unique, of course. Chief Justice John G. Roberts Jr. and his wife Jane are said to be devout; their well-dressed family was in the front row when Pope Benedict XVI celebrated Mass at Nationals Park in 2008. Friends described Sotomayor at the time of her nomination as not particularly active in the church.

Justice Clarence Thomas's spiritual journey includes a formative experience in Catholic schools in Georgia, a short stint at a seminary studying for the priesthood, a time with an evangelical Christian congregation and a return to Catholicism in the mid-1990s.

Ginsburg has said she is not an observant Jew, and traces the distance to when she was 17, and her mother died. Although there was "a house full of women," Ginsburg said, Jewish law required 10 men to convene a minyan, or communal prayer.

Breyer was raised in a Jewish household in San Francisco, but he was married in an Anglican ceremony and has a daughter who is an Episcopal priest.

Such diversity makse religious labels at best incomplete. "Just because there is a disproportionate number of Catholics on the court doesn't mean that you will know how the decisions will come down," said Marci A. Hamilton, a law professor at the Cardozo Law School in New York, who has written extensively about religion and the court.

Other scholars agree that even on questions of the separation of church and state, a justice's generally liberal or conservative philosophy is a far better indicator than religion. Sotomayor, for instance, seems likely to side more with colleagues appointed by Democratic presidents than with the court's conservative Catholics, appointed by Republicans.

But perceptions matter, too. Religion becomes a diversity consideration just like ethnicity and gender, especially with 51 percent of Americans identifying with one of the Protestant religions.

Clearly, Obama did not consider Sotomayor's Catholic upbringing to be disqualifying, despite the court's majority. "And the president has every right to ask [a potential nominee], 'What is your position on how you would separate your faith from the rule of law?' " Hamilton said.

Perceptions also matter, she said. As religions become more politically active, it is natural for the public to wonder about the influence on the court.

Former Justice Sandra Day O'Connor surprised some last fall at a conference when asked about the need for geographic diversity on the court. "I don't think they should all be of one faith, and I don't think they should all be from one state," she said.

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