Justice Thomas on Faith and the Court

In the New York Times, Adam Liptak reports on a recent appearance by Justice Clarence Thomas at the National Archives. In an interview conducted there by Yale law professor Akhil Amar, Thomas reflected, among other things, on the religious makeup of the Court and on his own faith. About the former, Thomas downplayed the importance of the fact that, for the first time in history, the Court contains no Protestants. (The current lineup is six Catholics, including Thomas himself, and three Jews). “We’re all from the Ivy League,” he observed. “That seems to be more relevant than what faith we are.” About the latter, he said that he grew up in a religious environment and still believed in God. “And I thank God I believe in God,” he said —  a theologically interesting proposition, itself — “or I would probably be enormously angry right now.”

I always feel a little uncomfortable focusing on the religious identity of the Justices.  It’s naive, I know, to think that Presidents select Justices without regard to such things – for years, there were “Catholic” and “Jewish” seats on the Court – but, in a religiously diverse society, focusing on the Justices’ religion can easily lead to recriminations. (“He’s only ruling that way because he’s Jewish”).  Perhaps that’s why Justice Thomas changed the subject to education. Besides, if the Justices are anything like other Americans, religious identity in itself suggests little about what results they would favor. Religion is an important predictor in American politics, influencing the policies and candidates people support. But it is the degree of religiosity, not the particular religion, that seems to matter. So, the interesting question would be, “How often does a Justice attend religious services?” not “To what religion does the Justice belong?” And that’s assuming that the Justices don’t filter their religious commitments when deciding cases.

To my mind, though, Justice Thomas’s second observation is the really interesting one, at least on a personal level. About what, exactly, is he so bitter that only divine grace can keep him from being “enormously angry?” You’d think that being a Supreme Court Justice would soothe most public annoyances. Liptak reminds readers, by way of explanation, of Thomas’s infamous confirmation hearings, when Thomas had to defend himself against allegations of sexual harassment. But that was more than 20 years ago. Maybe it’s something else the Justice addressed in the interview, the continuing criticisms that he doesn’t care about his African-American identity. Whatever it is, the hurt is apparently very deep.

Court Denies Cert in Utah Highway Crosses Case

Today the Supreme Court denied certiorari in  Utah Highway Patrol Ass’n v. American Atheists, the Utah highway crosses case. The Tenth Circuit had held that memorial crosses an association of police officers had erected alongside public roadways violated the Establishment Clause under the endorsement test. Justice Thomas filed a 19-page dissent from the denial of cert, arguing that the case would have provided a good vehicle for reconsidering the test, which, he argues,  confuses lower courts and leads to unpredictable results.

As Lyle Denniston explains at SCOTUSBlog, it’s impossible to know whether any of the other justices voted to grant cert — though, obviously, there were not four who wanted to hear the case. Perhaps the fractured nature of the last religious display case the Court decided, Salazar v. Buono  (2010), which also involved a cross on public property, has chastened the justices and made them reluctant to try again so soon. Perhaps there were problems with the record. Perhaps the justices who favor abandoning the endorsement test cannot yet agree on a substitute and don’t want to confuse things even more. One fact is clear. Public religious displays continue to generate an enormous amount of interest. The Court received 46 amicus submissions in support of cert in the Utah case. — MLM