Religion and the Supreme Court

Five Catholics. Two Protestants. Two Jews. Do the religious beliefs of justices influence their legal opinions?

Moses, Solomon and Muhammad stand side by side with historical legal giants such as Hammurabi, Solon and Napoleon on the marble friezes in the main chamber of the U.S. Supreme Court, symbolizing religion’s influence on the development of American legal thinking. Yet, until the 1940s, the Supreme Court generally kept a studied distance from issues of church and state.

During the Court’s first session in 1790, the subject of religion barely came up. “Newspaper accounts from the time indicate that while some U.S. courts in New England in the late 18th and early 19th centuries began their sessions with prayer, the highest court did not,” says Court historian Natalie Wexler, an editor of The Documentary History of the United States 1789-1800. In fact, the only sectarian matter to come before the Court in its first century and a half was an 1886 case involving taxes on a church-owned commercial property.

While the number of justices on the Court varied (six in 1790, seven in 1879, nine in 1839, 10 in 1860, eight in 1869, nine in 1869 and since), their religion didn’t. All were Protestants like the majority of Americans. When President Andrew Jackson nominated Roger Taney as the first Roman Catholic justice in 1835, he created what became known as the “Catholic seat,” which exists to this day.

In 1916, 81 years after Taney’s appointment, Louis Brandeis became the first Jew nominated to the Court. Scholars generally agree that President Woodrow Wilson selected Brandeis not because of his religion but because of his respect for the judge’s intellect. Even his opponents were more concerned about his “political radicalism” than the fact that he was Jewish. But once on the Court, Brandeis was directly confronted with anti-Semitism. He served alongside James Clark McReynolds, who refused to speak with him for three years and “practically never” addressed him thereafter, according to The Journal of Supreme Court History. McReynolds, for instance, told President William Howard Taft in 1921 that he could not join the Court on a ceremonial trip because, “As you know, I am not always to be found where there is a Hebrew aboard.” In 1932, when Benjamin Cardozo was sworn in, McReynolds muttered, “Another one!” “My God, another Jew on the Court,” he exclaimed when Justice Felix Frankfurter replaced Brandeis in 1939.

After Frankfurter, Arthur Goldberg and Abe Fortas served on the Court, marking 43 consecutive years in which Jews occupied at least one seat. After Fortas stepped down under a cloud of ethics accusations in 1969, what was understood as “the Jewish seat” remained vacant until the 1993 appointment of Ruth Bader Ginsburg.

With the confirmation of Stephen Breyer, another Jew, one year later, religious minorities for the first time constituted a majority of the Supreme Court’s members. Sitting with Ginsburg and Breyer were Antonin Scalia, Anthony Kennedy, both Catholics, and Clarence Thomas, the Court’s second African American, who although born a Baptist, became a Catholic as a boy, later switched to the Episcopal Church, and returned to Catholicism in 1996. A fourth Catholic, John Roberts, became chief justice in 2005, and a fifth Catholic, Samuel Alito, created an unprecedented Catholic majority when he joined the Court in 2006.

Historically, the political philosophies of nominees have always undergone extensive scrutiny, but the potential impact of personal religious beliefs has received less attention. In recent years as religion has become entangled in partisan politics, new interest has emerged.

Early in 2005, with George W. Bush’s nomination of White House Counsel Harriet Miers for a vacant seat, the question of religion broke into the open, much as it had surfaced in 1960 during the presidential campaign of John F. Kennedy, who became the nation’s first Catholic president. In extolling Miers’ conservative virtues, Bush remarked, “Part of Harriet Miers’ life is her religion.” That same day, then-presidential advisor Karl Rove similarly sought to reassure the Republicans’ social-conservative base when he explicitly coupled Miers’ evangelical beliefs with support for a pro-life stance. Liberals decried the exchange as evidence of a new religious litmus test in violation of Article VI of the Constitution: “No religious test shall ever be required as a qualification to any office or public trust under the United States.”