Justice Stevens’s New Book and the Absence of the Religion Clauses

My sister-in-law (and St. John’s Law School alum!!) kindly sent me Justice John Paul Stevens’s new book, Five Chiefs: A Supreme Court Memoir (Little, Brown, and Co. 2011), and this morning I read through  it (we wake up early in my parts).  For Supreme Court memoirs by former Justices, it’s not bad at all, containing several interesting historical details.  The mechanics of the way the Court operates, and the changes that Justice Stevens witnessed over the years — from his days as a clerk for Justice Rutledge to his appointment beginning in 1975, with a tenure of more than thirty years — are fun to read about.  I also learned that Chief Justice Roberts was a high school wrestler, which elevates him even further in my estimation (his weight class was 126 — light!). 

Along the way, Justice Stevens discusses all manner of cases: race, equal protection, affirmative action, antitrust, environmental, speech (it seems as though Justice Stevens would have voted with Justice Alito’s dissent in Snyder v. Phelps), capital punishment (like Justice Stevens, I admire C.J. Roberts’s concurrence in Graham v. Florida), abortion, Second, Fourth, Fifth, and Eleventh Amendments, separation of powers (Morrison v. Olson in particular), Commerce Clause, minimum wage cases,  and Bush v. Gore. 

The only comment directly about the religion clauses really isn’t about them at all, but is part of and couched within a larger criticism of originalism.  Justice Stevens writes:

At the time of the adoption of the religion clauses of the First Amendment, it was generally believed that they proscribed the preference of one Christian faith over another but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.   The commentaries written by Justice Story expressly describe this narrow understanding.  But as we held in Wallace v. Jaffree (1985), “when the underlying principle [was] examined in the crucible of litigation, the Court . . . unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.”  (225)

To be fair, we here at CLR Forum are perhaps one-track-minded when it comes to the Constitution, but I still think it is interesting that in a book laden with fairly extensive (for a memoir) discussion of Supreme Court cases, Justice Stevens devotes almost no time at all to the religion clauses.

On a related note, I found the parenthesis in this passage concerning Justice Black’s views on Griswold v. Connecticut very interesting:

He excoriated his fellow Justices for instead letting themselves “roam at will in the limitless area of their own beliefs as to reasonableness.”  He firmly believed that the liberty protected by the Fourteenth Amendment did not extend an inch beyond the Bill of Rights.  (I remember Potter Stewart telling me that Justice Black would refuse to join any opinion that cited Pierce [v. Society of Sisters] or Meyer [v. Nebraska].) [Emphasis added].

— MOD

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