How relevant is religion in the John Roberts confirmation process?

By Laura R. Olson

laurao@clemson.edu

(864) 656-1457

Q. Is the fact that Roberts is a traditional, observant Catholic relevant to his candidacy for the position of Chief Justice of the United States?

Q. What effect might the addition of Roberts to the Supreme Court have on existing church-state jurisprudence?

Q. Will Senators ask Roberts questions about his religious faith and its likely role in his approach to jurisprudence?

John G. Roberts, Jr., is George W. Bush’s nominee to succeed William H. Rehnquist as Chief Justice of the United States.  Roberts, 50, is a Roman Catholic.  He attended a Catholic boarding school before beginning his undergraduate studies at Harvard. The Roberts family attends the Church of the Little Flower in Bethesda, Maryland.

There are currently three observant Catholic justices on the U.S. Supreme Court: Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. If Roberts is confirmed, he will become not only the fourth Catholic on the current Court but also the third Catholic Chief Justice, following in the footsteps of Roger B. Taney (1836-1864) and Edward Douglas (1910-1921).  It is therefore not unusual for a member of the Supreme Court to be a member of the Catholic faith.

Being Catholic has no predictable, identifiable effect on one’s politics; today’s American Catholics are diverse politically. But Roberts happens to be a traditional Catholic, which means he adheres to the Church’s teachings more rigorously than most. Will his faith affect the way he does his job as Chief Justice? In my judgment the answer is yes, but only insofar as faith (when it is deeply held) affects anyone’s daily life. It would be discriminatory against Catholics and rash to conclude that Roberts would be a mouthpiece for the Vatican if he becomes the next Chief Justice.

More relevant is the question of how Roberts’ presence on the Court might affect current church-state jurisprudence. Roberts would replace Rehnquist, who was very conservative on church-state issues. Roberts’s presence on its own is not likely to alter the judicial balance very much. What will be far more significant is the eventual replacement for retiring Justice Sandra Day O’Connor and his or her approach to religious jurisprudence.  O’Connor was a swing vote in many religion cases, including the 2005 decisions in the Ten Commandments cases (Van Orden v. Perry and McCreary County, Ky. v. ACLU). A more conservative justice in O’Connor’s seat could tip the balance toward more accommodation of religion in public venues (prayer, religious displays, etc.) and greater restriction of “free exercise” rights.

The U.S. Senate might be expected to ask Roberts questions about how he interprets the meaning of the establishment clause and the free exercise clause of the First Amendment. These two clauses are the basis of religious freedom in the United States.

Nowhere in the Constitution is “separation of church and state” mentioned. What the framers of the Bill of Rights provided were two decrees: There shall be no official establishment of any one faith, and there shall be no restriction of the individual’s right to exercise their chosen religion.

These two statements are fraught with vagueness, so it is the job of the Court on the one hand to determine what constitutes “establishment” of religion: School prayer?  Public nativity scenes?  Displaying the Ten Commandments? And on the other hand, it is up to the Court to determine what acceptable limitations should be placed on religious free exercise: Disturbing the peace? Using illegal substances? Sacrificing animals? and so on.

What the Senate is not likely to ask are questions about Roberts’s own faith. In its only other mention of religion, Article VI, the Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Laura R. Olson is a professor of political science at Clemson University and the author of several books on religion and politics. E-mail: laurao@clemson.edu

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