Do Judges Decide With Their Souls?
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."
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.