Monday, April 12, 2010

Justice Stevens and the Religious Makeup of the Supreme Court

On April 9th, Supreme Court Justice John Paul Stevens announced that he will be retiring from the Court at the close of the current term, assuming that President Obama has found a fitting replacement for him. This announcement has been met with a great deal of buzz in the political world, and the question as to the religion of the new Justice has come into play. In this article from the Associated Baptist Press, many of the issues related to religion and the Supreme Court are discussed.

As it stands, Justice Stevens is the only Protestant Justice still sitting on the High Court. The remainder of the Court is comprised of six Catholic members and two Jews, which is highly uncharacteristic of a Court that has historically been dominated by Protestants. While the arguments about numbers and ratios of the religious faiths represented hold a great deal of water in this situation, it is interesting to look back on Justice Stevens’ personal record as related to cases dealing with the Religion Clauses.

While Stevens is generally considered the most liberal member of the Court and his jurisprudence has only drifted further left, the Court itself has seen an overall shift toward the right in membership. Stevens has consistently opposed government entities that have promoted or endorsed religion, most notably seen in Wallace v. Jaffree (1985) and Santa Fe Independent School District v. Doe (2000). Not surprisingly, Stevens has often been criticized for his firm stance on Establishment. Writing the Minority Opinion in Santa Fe, Chief Justice Rehnquist said that Justice Stevens’ Majority Opinion “bristles with hostility to all things religious in public life.”

Interestingly, though, Justice Stevens has been somewhat inconsistent in decisions dealing with Free Exercise claims. In the 1990 Employment Division v. Smith, Stevens joined the majority in striking down the use of Peyote by Native Americans as part of their religious practices. This was one of the most controversial cases dealing with religious liberties that the Court has handed down in recent history. Speaking of this decision, Brent Walker of the Washington-based Baptist Joint Committee for Religious Liberty said that Smith “gutted the Free Exercise Clause of its robust religious-liberty protection for all Americans.” In other cases, however, Stevens did vote in favor of protections for religious groups (Church of the Lukumi Babalu Aye v. City of Hialeah and Lamb’s Chapel v. Center Moriches Union School District, both in 1993).

I think the overarching issue that needs to be examined is Justice Stevens’ tenure on the Court in the context we discussed last week in class relating to the Feldman article, “A Christian America and the Separation of Church and State.” We discussed the seemingly inconsistent manner in which the Court has decided cases dealing with minority religious perspectives. It is evident that our country has developed with a strong Protestant influence and faith, and only sparingly has the Court ruled in favor of the minority groups. How can this be explained? Does the overall religious makeup of the Court have anything to do with this? Will it matter at all if there are no more Protestant members left on the Court? There are groups calling for the President to nominate someone as dedicated to the separation of church and state as Stevens was, and still others who want someone who will provide a more consistent voice in the Free Exercise realm. I wonder, though, if it might be time to call for a nominee of a true religious and cultural minority. The most recent addition to the Court was Justice Sonia Sotomayor, only the third female Justice and the first one of Hispanic heritage. Given the religious melting-pot that our nation has come to be, maybe it is time for the Highest Court to resemble such diversity.


David I said...

While the issue of religion in regards should not be something that is argued upon, it is true that our country clearly has a tradition of Judeo-Christian beliefs and ideals. No matter who is nominated to the Supreme Court, it is true that only those who believe in the same ideals as our founders will be truly considered for the position. However, to be honest, I agree with Rob's statement that "it might be time to call for a nominee of a true religious and cultural minority." With the increasingly diverse population of the United States, it may be time that a minority justice was named to the High Court. This growing population needs an advocate to fight for these groups at the highest level, and President Obama would be smart to recognize this. However, this plan may be stifled by both the ideas that religion should not be a part of politics and law, and that Judeo-Christian values are the norm in American society. As the selection process continues to advance in the upcoming weeks, it will be interesting to see who the President nominates to replace Justice Stevens.

Justin M said...

An interesting fact to keep in mind during the selection of a new Supreme Court Justice is that Justice Stevens was originally selected to the Court as a staunch conservative. While he claims to still be at about the same place in the political spectrum today, he has cited that newer members of the Court have been increasingly conservative. For this reason, it is hard to imagine that President Obama will be able to get a strong liberal nominee confirmed to the Court. Furthermore, I agree that it is time to have a religious minority represented on the Court. However, there seems to be little indication that this is possible. The rigorous confirmation process in the Senate will most likely reject any nominee that holds a minority religious perspective when no Protestant member remains in the Court.