Legal News

Must Justice Stevens?s Replacement be a Protestant?

By Ashby Jones

Kashmir Hill over at Above the Law is right, in our opinion: You could have spent all weekend reading coverage of John Paul Stevens’s retirement without reading too much all that new or inspired.

But we liked Adam Liptak’s Saturday piece in the NYT. Much, Liptak writes, has been made of the fact that Justice Stevens is the lone Protestant on the court. (The court is otherwise comprised of six Catholics and two Jews.)

To what degree, however, is that important in this day and age? To what degree should President Obama factor that into his thinking when mulling his selection?

The truth, Liptak reports, is that our culture these days prioritizes different types of diversity over religious diversity. "The practical reality of life in America is that religion plays much less of a role in everyday life than it did 50 or 100 years ago," said University of Chicago law professor Geoffrey Stone, to the NYT.

"These days," said Lee Epstein, a law professor at Northwestern and an authority on the court, "we've moved to other sources of diversity," including race, gender and ethnicity.

Writes Liptak:

It is hard to imagine the court without a black justice, for instance, and it may well turn out that Justice Sonia Sotomayor is sitting in a new "Hispanic seat." It would surprise no one if President Obama tried to increase the number of women on the court to three. Not so long ago, there was similar casual talk, but of a "Catholic seat" or a "Jewish seat" on the Supreme Court.

But the shrinking role of religious diversity doesn’t mean religion can’t still be a source of controversy on the court. Liptak writes that Stone learned this in 2007 when he wrote a newspaper opinion piece after the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart.

"Here is a painfully awkward observation: All five justices in the majority in Gonzales are Roman Catholic," Professor Stone wrote. "The four justices who are not all followed clear and settled precedent."

Stone got slammed for the piece, Liptak reports, especially by Justice Antonin Scalia, who was said to be “especially furious about the questions raised in Professor Stone's article.”

Professor Stone's article, he said, was "a damn lie," adding that "it got me so mad that I will not appear at the University of Chicago until he is no longer on the faculty."

Full post as published by Law Blog - WSJ.com on April 12, 2010 (boomark / email).