Religious Diversity and the Supreme Court

Sonia-SotomayorIn the New York Times, Law Professor Ann Althouse poses an interesting hypothetical question for Sonia Sotomayor:

“If a diverse array of justices is desirable, should we not be concerned that if you are confirmed, six out of the nine justices will be Roman Catholics, or is it somehow wrong to start paying attention to the extreme overrepresentation of Catholicism on the court at the moment when we have our first Hispanic nominee?”

On her blog, she further argues:

“I think religious diversity is particularly important, because it has more to do with the individual’s mind. It’s part of one’s thinking, and legal analysis is thinking. Race and ethnicity might have an effect on your thinking — in that it may involve various personal experiences and feelings of identification — but it is not a characteristic that you have by deciding to have it or by believing you have it. Religion is different.”

Is Althouse right? Should we be aiming for religious diversity? I’m dubious for several reasons:

  1. There is a significant amount of diversity within all religions, including Roman Catholicism. In fact, an interesting argument I encountered was that people who are dogmatic in particular areas tend to be rather open in other areas. So, those who are dogmatic religiously may tend to be more open-minded politically and legally (admittedly, this is pure conjecture).
  2. If one identifies with a religion, it is almost always passed down from family.  Sure, a particular religion’s values may have some impact on one’s upbringing and moral values. But, how strongly is it really correlated with one’s thinking, particularly their legal analysis and analytical thinking? It would be one thing if the justices actually chose their religion, but generally the choice is merely whether to keep it.
  3. Having a religious affiliation is basically a prerequisite for being appointed to the Supreme Court… or being elected to any federal office for that matter. Accordingly, it is only logical for potential Supreme Court appointment candidates to affiliate with a religion even if it does not affect their behavior and thinking at all. Sure, Justice Scalia is legitimately a practicing Catholic, but how much does Justice Breyer’s Judaism really reflect his thinking? This actually points to an interesting alternative for diversity: Why don’t we consider diversity of religiosity as opposed to diversity of religious belief? Choosing to be religious or not usually is a conscious choice rather than a familial association.

Admittedly, points one and two hold for diversity of race too, lending credence to the idea that broad proxies for diversity like race and religion have significant limitations. But, my third point is specific to religion. I’m just not persuaded that the religion that one holds (rather than one’s religiosity) has any systematic correlation with one’s analytics and legal thinking.

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