Can We Get an Atheist on the Supreme Court? December 11, 2009

Can We Get an Atheist on the Supreme Court?

The current Supreme Court consists of:

6 Catholics
2 Jews
1 Protestant

And if Justice John Paul Stevens retires next year — he probably will — the sole Protestant would be gone.

Dahlia Lithwick at Slate asks why it’s uncouth to talk about the religious makeup of the Supreme Court:

… We talk about the need for race and gender diversity on the court in brave, sweeping pronouncements: The court needs more women, we say, or more Asians, or more gay and disabled people. Because all those things will impact the law. But when it comes to talking about religious diversity, it happens in whispers, if at all. Because it might impact the law. For a small handful of Americans, the fact that six of the nine justices on the current court are Catholics is an underreported national scandal. But for most, it’s just quirky news.

Even in her article, there’s no mention of potential atheist judges, but it would be nice to have a representative on the court, wouldn’t it? Or maybe it wouldn’t matter — atheists have won and lost cases in the Supreme Court regardless of the religious affiliations of the judges.

It’s tough to have nine people serve as an accurate representation of the whole country — there are bound to be distortions in some category or another. Which label do you try to fill next? Woman? Minority? GLBT? Atheist?

Do you think it matters at all if the judges are supposed to weigh cases with no regard for their personal religious beliefs?

(Thanks to Brett for the link!)

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  • qwertyuiop

    Do you think it matters at all if the judges are supposed to weigh cases with no regard for their personal religious beliefs?

    That’s good in THEORY but judges, congresspeople, etc still vote away the rights of GLBT, etc. based on religious bigotry. Otherwise there’d be no reason at all to deny such rights.

  • Daniel Cunningham

    I think most judges do a fairly good job of making decisions irregardless of any overt religious bias (most, not all.)

    However, that still leaves a very wide margin for unconscious, unrecognized, and undisclosed biases. Since many issues before the court have ethical and moral dimensions, it would seem to me that, over the career of a judge, their religious beliefs would indeed matter. This is a true with Supreme Court justices and particularly more so where the details of written opinions matter very much and it is not merely a binary (win/loss/no-decision) judgement.

  • JSug

    Ideally they aren’t supposed to represent the people of the country, or their personal beliefs and biases. They’re supposed to represent the law impartially.

    Obviously, that isn’t realistic.

  • The only solution is to appoint Justices which each represent at least 4 specific groups. For instance, one Justice could be an African-American disabled female with Asperger’s Syndrome; another could be a Caucasian Vietman veteran who converted to Hinduism and is covered in tattoes….would conjoined twins count as one or two appointees? 🙂

  • This is where a plane, a parachute, and a bomb come in handy.

    Seriously though, as nice as it would be to have an atheist on the Supreme Court, it doesn’t seem like it’s necessary.

    What IS necessary is for the President to select impartial, unbiased Justices whose only care (at least, when doing their job) is that the law is upheld.

    Like you said, atheists have won and lost cases in the Supreme Court, so surely this means it is possible to have Supreme Court Justices who don’t let their religious backgrounds (or any other for that matter) affect their duty.

  • It is illegal in your country to use religion as a test for public office. I submit that ideally we (by which I mean to include other secular democracies) should go beyond the de jure requirement and consider it de facto irrelevant as well. We should appoint justices who can be trusted to judge by the law and the evidence, not the dictates of whatever religious tradition they adhere to. Appointment of an atheist (or black, or female, or gay) justice should not be considered good because they somehow bring to the bench a perspective in principle unavailable to others, but only because it signals the mainstream acceptance of a previously marginal group.

    In practice, I imagine it will never be that simple. Can we trust a panel of Catholics to rule on abortion in a way that supports the rights of women to control their own bodies? Can a bunch of rich white men really understand what the justice looks like from the perspective of a poor woman of colour?

  • Trace

    No, we can’t get an atheist on the SC.

  • Reginald Selkirk

    It’s tough to have nine people serve as an accurate representation of the whole country — there are bound to be distortions in some category or another. Which label do you try to fill next? Woman? Minority? GLBT? Atheist?

    Yes. Line up the list of black lesbian atheist candidates. Oh, and you forgot physically handicapped.

  • Vas

    irregardless, really!?!

  • heironymous

    Irregardless (it’s a word – irrespective+regardless – portmanteau)

    All I really care about is liberal vs. conservative. I believe that about 83% of all Jews and Catholics are de facto agnostic (and 57% of all statistics are made up)

  • Do you think it matters at all if the judges are supposed to weigh cases with no regard for their personal religious beliefs?

    It would matter less if they actually tried. Does Scalia do that? Does Alito?

    I think you must accept that human beings will bring in their personal religious beliefs, some only a little, some much more, and arrange things to the impact of that is reduced, particularly when there may be a few who bring their religions into decisions too much.

    One way to reduce the impact of the kind of prejudices that brings with it is to have the court reflect the makeup of society more closely than it presently does. A greater variety of religious views (including no religion), more women, more variety in racial makeup, and so on.

  • noah

    Is it clear that there is not an atheist on the Court? Are Breyer and Ginsburg practicing Jews? And, if the are, do we know that they also aren’t atheists? (I know many Jews who practice the religion for cultural reasons, but absolutely consider themselves atheists, or at least agnostics. I’m in the semi-practicing Jew and agnostic group.)

    And what about Thomas? He’s “Catholic,” but he’s also been about 7 other things. I think his religious affiliation is political, and he probably is an atheist.

    Point is: you can be an atheist and a member of a religion.

  • Miko

    After that, we should get an anarchist on the Supreme Court. Besides being the only fair thing (if we want proportional representation based on group identity), it’d make reading the decisions much more entertaining.

    All I really care about is liberal vs. conservative.

    Yeah, the current breakdown of eight conservatives and one moderate (Kennedy) is a travesty. Unfortunately, as long as all justices are appointed and approved only by Democrats and Republicans, we should expect the court to stay as ultraconservative as those two parties are.

  • Staceyjw

    It’s insane that people that profess to believe something as absurd as Catholicism are in the SC at all. I don’t know if they are practicing or more agnostic, and I realize they couldn’t get there without professing some silly “faith”, but still…

    Its not acceptable for the SC to be made up of mostly Catholics, but there is nothing we can do about it, outside of working towards more acceptance of secularists. They say they are impartial, but I don’t believe it. I’m not saying its impossible, but I find it unlikely that they can put all of their beliefs aside when interpreting the law. They have to use some worldview as a reference to interpret, why wouldn’t their faith be the lense they see through?

    At least Catholics seem to be less about “living the faith 24/7” , and more about “church on Sunday” as some other xtian fundies, but they still have archaic views on women and gays.

  • curran

    I don’t care what religion a justice is as long as preferential treatment is not given to anyone, & they put their religion/biases aside (their job), & do not make a public scene about their religion on the job. Perhaps an atheist judge would be more likely to rule fairly on church/state issues (who knows), but I don’t think we should hope for atheist judges in the same way I wouldn’t want christians preferring christian judges. I just want fair, impartial judges.

  • Frank

    When talking about the supreme court, the conversation should never ever be about impartial interpretation of the law. 95% of the cases the supreme court hears no one outside the legal profession ever becomes aware of and no one cares about. In the 5% of cases that matter, there rarely is such a thing as an impartial interpretation of the law. The cases the supreme court takes are precisely those where the law is ambiguous. And even when the law is clear, we don’t always want the supreme court to follow it. If the Warren court had merely interpreted the law impartially in Brown v. Board, we’d still have racially segregated schools today. The fact of the matter, which this country needs to learn to accept and discuss openly if the court is to have any real future as an institution, is that the supreme court is a policy-making body. It’s job is not to impartially interpret the law, it is to make the best public policy it can in cases where elected officials are unable or unwilling to do the right thing. And like any other policy maker, a supreme court justice can’t avoid having their personal views, religious or otherwise, influence their judgment.

  • Vene

    I support a black, transgendered, atheist for the next supreme court justice.

  • muggle

    It’s job is not to impartially interpret the law, it is to make the best public policy it can in cases where elected officials are unable or unwilling to do the right thing.

    No, their job is to determine the constitutionality of a law. Hence, things like Brown v. the Board of Education. It was a law but it was unconstitutional in the end. It does mean they have to do a lot of arbitrary interpretation of the law and the constitution and the end result is that they do set policy but that is only because they’re the highest court in the land which makes their interpretation the final say.

    That said no, we shouldn’t say there must be an Atheist. Let’s not make the Supreme Court about meeting quotas. Let’s do make it about trying to select the most unbiased judges possible, whether liberal or conservative or, more ideally, somewhere in between. Let’s eliminate judges with an agenda other than the Constitution.

  • stogoe

    What matters more to me than whether the Holy See is calling the shots on the Supreme Court is how many fucking morons are on the bench. Scalito, Roberts, Thomas, they seem to have split half a brain between the four of them. It’s not just that they’re ultraconservative, it’s that they’re incapable of crafting coherent legal arguments. “Dude, come on, that’s not a real problem, dude” doesn’t cut it.

  • Luther

    I think most judges do a fairly good job of making decisions irregardless of any overt religious bias

    Probably. Unfortunately “most judges” are not on the Supreme Court. We will see.

  • “Is it clear that there is not an atheist on the Court?”

    That’s probably the best question here. There are likely agnostics or atheists on the Supreme Court, many in Congress, and several who have been President, but how many of them have been honest?

  • Frank


    Please let’s not delude ourselves into thinking that such a thing as “constitutionality” exists independent of the case law that exists at a particular point in time. It doesn’t. On the day before the supreme court announced its decision in Brown v. Board, separate but equal was every bit as constitutional as breathing. When the court decided Brown v. Board, they weren’t thinking about whether segregated schools were consistent with a single sentence written nearly a century before and they weren’t thinking about existing case law. They were thinking about what was morally right, about what was best for the country, about how they could make the best public policy they could, because that is their job. The last person I want sitting on the supreme court is someone who thinks supreme court cases are about what a two hundred year old document says. I want supreme court justices to be biased in favor of individual rights, I want them to be biased in favor of church/state separation, I want them to be biased in favor of privacy, I want them to be biased in a thousand other ways.

    I actually watched several days worth of the Sotomayor hearings, and I was appalled by the fact that the senators weren’t doing their jobs. They were letting her get away with not answering any of the important questions. They confirmed her without having any idea whether she is capable of making a policy decision or not. And if she isn’t, this country is going to be stuck with a series of bad decisions from her for decades to come. That is why the supreme court can’t survive as an institution if this country doesn’t learn to accept and discuss the fact that it is a policy making body, just like any other branch of government.

  • BrettH

    Frank, I think you’re very confused about the way our government is supposed to work. Having the supreme court take on that kind of role would be disastrous. For one thing it would make Congress and the President redundant, and if the president (whose only significant job would be appointing justices) were to make the wrong choice, we would be stuck with it for the life of the justice. The three branches are there for a reason, and it’s not the Judicial branches job to start claiming the powers of the other two.

    Individual rights, privacy and church/state separation are all constitutional issues, and because of the amendment system not all the relevant rules are 200 years old. If you want a justice that will make atheist friendly rulings, all you need to do is get one that will interpret the intent of the constitution instead of taking it upon his/herself to make good policy. The constitution is on our side. Public opinion isn’t.

  • Frank

    BrettH, I am quite familiar with how our government is supposed to work, and I never suggested that the supreme court should be the only or even the primary policy making body. All three branches have important roles to play in making policy. But there are cases where the elected officials in the other two branches are unable or unwilling to do the right thing, and that’s why it’s important to have an unelected branch that can step in in those cases.

    What would be disastrous would be for the court to do nothing but go with the original intent of the constitution, as justices Scalia and Thomas try to do. The word “privacy” doesn’t appear anywhere in the constitution, there is no broad protection of it written into the document. All the constitution talks about is unreasonable searches and seizures. There’s certainly nothing in the document that was intended to protect a womans right to get an abortion. And those individual rights the bill of rights talks about, they were only ever intended to apply against the federal government, not the states. “Congress shall make no law…”, remember? The 14th amendment has been used to apply essentially all of the bill of rights to the states, but the people who wrote, passed, and ratified the 14th amendment never dreamed it could be used to extend the federal bill of rights to the state governments. They certainly never thought they were protecting homosexual conduct, even though the amendment has been used for that (see Lawrence v Texas). Heck, they didn’t even think they were prohibiting segregated schools. Do you really think the court was wrong in Brown v Board? These are the historical facts we have to deal with, if you really think the supreme court should be trying to figure out the original intent of the constitution, this is what you are asking for.

    Another problem with trying to figure out original intent is that an original intent doesn’t necessarily exist to be found. There is a great section on why legislative intent is an incoherent notion in justice Scalia’s dissenting opinion in Edwards v Aguilllard, and the problem doesn’t go away when we consider legislatures that met centuries rather than years ago.

    Finally, if you want to see the extreme of silliness that a supreme court opinion can become when they insist on doing the right thing and pretending to follow the constitution at the same time, I suggest you read the opinion in Griswald v Connecticut.

  • False Prophet

    I think hieronymous has it right: religious divide isn’t as important as political divide. In the US, conservative Catholics tend to side with conservatives on political issues, and liberal Catholics tend to side with liberals. This is even when Church doctrine is in opposition to the politics.

    Thus conservative Catholics often support laissez-faire capitalism, capital punishment, and the wars in Afghanistan and Iraq. All things the Church has stood against. They also tend to side with creationists (even though the Church has no problems with evolution), and some seem to express theological views closer to evangelical conservatives than Catholicism. Erik Prince, CEO of Blackwater (now Xe) and Catholic convert, sat on a board where all members had to swear an oath that the Bible was the only true, unerring Word of God. That is getting close to heresy for a Catholic.

    Meanwhile, liberal Catholics are often pro-choice, pro-birth control, and many are tolerant of gay marriage, all positions in opposition to Church teachings.

    Most Western Catholics on all sides of the political spectrum are “cafeteria Catholics”, and are basically Catholics due to cultural inculcation, not a real understanding of their faith. Most Catholics don’t really understand the theology of their Church, and most don’t go out of their way to amend that either.

  • BrettH

    Frank: You’re right that the word privacy doesn’t appear in the constitution. Personally I’m not 100% convinced that we have it as a constitutional right, but I’ve heard good arguments that the bill of rights implies it in the same way the first amendment more obviously implies freedom of expression. As far as it’s implications on abortion, I’m not sure I actually do agree with applying privacy to the issue, although apparently Ginsburg wrote a concurring opinion that used different justification that I might like a bit better. I’m pro choice, but it still makes me nervous that it looks to me like the court might have ignored its job for a while and done what they thought was right. They might have been right on that issue from a moral standpoint, but I’m pretty sure with the two new Bush appointees on the court the constitution is the only thing protecting me from some rulings I really wouldn’t like. As far as segregation, just because they didn’t intend to make it illegal with the 14th amendment doesn’t mean it wasn’t a correct application of it. The problem with the court deciding policy isn’t that they aren’t right a lot of the time, I think they have a better record that average citizens would, it’s keeping checks and balances in place in case we get 9 people on the court that wouldn’t make good decisions.

  • Frank


    I’m not sure I understand what you think the court is supposed to do. You don’t think it should go with what was intended by the people who wrote, passed, and ratified the document. You don’t think it should make the best policy decision it can. What else is there?

  • BrettH

    Applying the law as written to a modern situation isn’t really either of those options. For example, applying the first amendment to radio broadcasts isn’t exactly what the authors intended, since they had no idea radio was coming. It seems significant to me that it’s a logical extension of what they wrote. In the same way, the 14th amendment might not have been designed to end segregation, but that doesn’t mean enforcing it wouldn’t require changes the authors hadn’t thought of. I think it’s a nice idea to have 9 people looking out for us and making sure congress doesn’t make bad laws, but we simply have no way of guaranteeing that the court is actually well meaning or well informed since they have life appointments.

  • Frank

    As I tried to illustrate earlier, what the court has done goes way beyond merely applying the original principles to situations the people who rote the documents didn’t foresee. If you had asked anyone associated with the creation of the 14th amendment whether it made the first amendments protection of freedom of religion applicable to state governments, they would have understood the question perfectly, and would have told you in no uncertain terms that it did not. If you had asked them whether the 14th amendment meant that the government couldn’t throw men in jail for having sex with other men, they would not only have told you it did not, they would have been appalled by the idea that their amendment could be used in such a way. If we want the bill of rights to apply to the states, or segregated schools to be illegal, or any of a hundred other important things, and we want to be honest and acknowledge the facts of history at the same time, then there is no alternative, we must acknowledge that the job of the supreme court is to make such law, and that the law it makes often flatly contradicts the intentions of the people who wrote, passed, and ratified the relevant portions of the constitution.

    It’s certainly true that the supreme court is not guaranteed to always make the right decisions. I can think of several instances in which they did stupidly wrong things. But the elected members of the other two branches of our government screw up a fair amount too. The fact that the supreme court justices hold their seats for life means that they are able to do things that the other branches can’t. And if they have the power to do something important (like integrating public schools) and choose not to because the constitution doesn’t tell them they should, if they refuse to do what they know is right because of what a few dead white men did or didn’t write centuries ago, then I say they are cowards unworthy of the robes they wear. The problem with a supreme court that restricts itself to what a document says (whether that is understood to be original historical meaning or not) is that it creates a disconnect between the decisions the court makes and the effects of those decisions on real people. And that disconnect can result in the court making bad decisions as often as good ones. It defeats the point of having a supreme court in the first place. A court that merely interprets a document makes its decisions totally blind to the effects of those decisions, and that is unacceptable to me.

    We can see the legal stupidity that results from courts pretending not to make policy if we look at the various creationism cases. In every case, creationism looses only because it is religious. It doesn’t matter whether it is good science or not. It just matters whether we can show that the other guys are motivated by their religious beliefs. We’ve won on that in the past because the creationists have always been really stupid and left obvious signs of the connection between their “science” and religion. But what happens if a creationist comes along who is smart enough not to connect his version of creationism to religion? I know, it’s not very likely, but it could happen. Based on the way the law sits now it looks like he would win. What we need are courts that are willing to prohibit the teaching of creationism because it is bad science. We need the law to reflect the fact that the religiousness of creationism is not the reason it shouldn’t be taught. And there is no basis in the constitution for doing that, and there is no way a legislature will ever do it.

    Here’s the big question: is segregation wrong because the 14th amendment forbids it, or do we make the 14th amendment forbid it because it is wrong? If the former, then the constitution loses all moral authority. Some of it is right and some of it is wrong, just like any other document written by men. There’s no reason we should care what it says. We aren’t slaves to men who died centuries ago. If the later, then you are admitting that the court is in the policy making business.

    To put this in more contemporary terms, if we are to go with any reasonable interpretation of the constitution, then justice Scalia is absolutely right when he says to homosexuals “If you want your rights protected, if you want to not lose your job because of your sexual orientation, if you want to not be thrown in jail because of who you love, you’ve come to the wrong place. You should walk down the street and ask congress, because there is nothing in the constitution that protects you.” And if that is what the constitution says, then I say to hell with the constitution.

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