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Supreme Court Justices Pose for Annual Portrait
Members of the U.S. Supreme Court pose for a group photograph on September 29, 2009.
Front row (l-r): Anthony M. Kennedy, John Paul Stevens, John G. Roberts, Antonin Scalia, Clarence Thomas. Back row (l-r): Samuel Alito Jr., Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor. (photo: Mark Wilson/Getty Images)

On April 9th, Justice Stevens announced his upcoming retirement from the U.S. Supreme Court. The loss of the lone Protestant on the Court, in a country with 51% Protestants, has sparked a vigorous media discussion. Pundits and journalists are asking how, and if, this will impact future Court discussions, and if religion should even be a consideration when selecting Justice Stevens’ replacement.

There have been plenty of interesting media reports during the past week: Nina Totenberg on NPR, Dahlia Lithwick in Slate, Adam Liptak in The New York Times, which gets called out by Ashby Jones in the Wall Street Journal. However, we were holding out for a thoughtful, well-informed theological voice — specifically looking out for Martin E. Marty, who weighed in Monday with a piece in Sightings:

“… To grant a para-constitutional point, most ‘religious tests’ are ‘cultural tests’ or ‘power tests.’ On the positive side of that case, it is true that people steeped in a religious culture might well hear religious nuances in cases, and can adjudicate them more sensitively than the spiritually tone-deaf might. Others do and will clearly use their ‘nuances’ as weapons of judicial power. Overall, it might be best if the public said, ‘We are reassured you justices are religious; just don’t “use” that religion too much.’”

Later on, Marty references Geoffrey Stone, whose comments on religion in the Supreme Court over the past several years have often been cited. In 2007, the University of Chicago law professor created some controversy when he pointed out that religious belief may have swayed the Court’s ruling in Gonzales v. Carhart and his analysis of Catholic Justices on the Court after Sotomayor was appointed.

However, Stone’s recent statements that religion should not be a focus in the selection process prompts Marty to ask:

“Can the one who makes an appointment satisfy the people called Protestant? Most are, top to bottom, at odds with each other. From a satellite distance, they come in three large tribes: ‘Mainstream’ or ‘mainline,’ ‘Evangelical,’ and ‘African-American.’ Most citizens in any of these three groups will neither say ‘Hurrah for our side!’ nor feel represented by any representative of the other two.

Thus would evangelicals Charles Colson, James Dobson, or Marvin Olasky, who enthused about the ill-fated appointment of ‘evangelical’ Harriet Miers during the Bush administration, have been satisfied with any mainstream sort, and vice versa? Stone has only two criteria, or wishes, for the next appointment: The nominee ‘must have the intellect, temperament and experience necessary to fulfill the responsibilities,’ as many Protestants do and other Protestants don’t; and he or she ‘should have the vision of the law…that is consonant with the president’s own aspirations.’ For Stone, that should be it – but no one expects that will be.”

I had started my research thinking I had a point of view, but sifting through different analyses I find myself more confused than ever with this complex issue. I welcome any sources or ideas that you’ve found that helps illuminate the topic!


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2 Comments

How is it possible that there is only one mainline Protestant on the Supreme Court and he is about to retire?

What are the religions of the other justices?