Put an Atheist on the Supreme Court

Feb 19, 2016

Photo credit: Brendan Smialowski / AFP / Getty

By Lawrence M. Krauss

Who should replace Antonin Scalia? On Monday, the Times reported that the Justice himself had weighed in on the question: last June, in his dissenting opinion in the same-sex marriage case Obergefell v. Hodges, Scalia wrote that the Court was “strikingly unrepresentative” of America as a whole and ought to be diversified. He pointed out that four of the Justices are natives of New York City, that none are from the Southwest (or are “genuine” Westerners), and that all of them attended law school at Harvard or Yale. Moreover, Scalia wrote, there is “not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination” on the Court. (All nine Justices are, to varying degrees, Catholic or Jewish.)

Scalia’s remarks imply that an evangelical Christian should be appointed to the Court. That’s a strange idea: surely, the separation of church and state enshrined in the Constitution strongly suggests that court decisions shouldn’t be based on religious preference, or even on religious arguments. The Ten Commandments are reserved for houses of worship; the laws of the land are, or should be, secular. Still, I’m inclined, in my own way, to agree with Scalia’s idea about diversity. My suggestion is that the next Supreme Court Justice be a declared atheist.

Atheists are a significantly underrepresented minority in government. According to recent findings from the Pew Research Center, about twenty-three per cent of American adults declare that they have no religious affiliation—which is two percentage points more than the number who declare themselves Catholic. Three per cent of Americans say that they are atheists—which means that there are more atheists than Jews in the United States. An additional four per cent declare themselves agnostic; as George Smith noted in his classic book “Atheism: The Case Against God,” agnostics are, for practical purposes, atheists, since they cannot declare that they believe in a divine creator. Even so, not a single candidate for major political office or Supreme Court Justice has “come out” declaring his or her non-belief.

From a judicial perspective, an atheist Justice would be an asset. In controversial cases about same-sex marriage, say, or access to abortion or birth control, he or she would be less likely to get mired in religion-based moral quandaries. Scalia himself often got sidetracked in this way: he framed his objections to laws protecting L.G.B.T. rights in a moral, rather than a legal-rights, framework. In his dissent, in 2003, in Lawrence v. Texas—a case that challenged a Texas law criminalizing gay sex—Scalia wrote that those who wanted to limit the rights of gay people to be teachers or scoutmasters were merely “protecting themselves and their families from a lifestyle they believe to be immoral and destructive.” To him, religion-based moral objections seemed to deserve more weight than either factual considerations (homosexuality is not destructive) or rights-based concerns (gay people’s rights must be protected). Indeed, Scalia’s meditation on the Court’s lack of religious diversity was part of a larger argument that the Court’s decision on same-sex marriage did not reflect prevailing religious and moral values. An atheist Justice, by contrast, would have different intellectual habits. I suspect that he or she would be more likely to focus on reason and empirical evidence.


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11 comments on “Put an Atheist on the Supreme Court

  • @OP – Scalia wrote that the Court was “strikingly unrepresentative” of America as a whole and ought to be diversified. He pointed out that four of the Justices are natives of New York City, that none are from the Southwest (or are “genuine” Westerners), and that all of them attended law school at Harvard or Yale. Moreover, Scalia wrote, there is “not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination” on the Court. (All nine Justices are, to varying degrees, Catholic or Jewish.)

    So much for separation of church and state – with justices who respect and uphold civil law, without preconceived mental references to Cannon Law!



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  • When the Supreme Court rules ALL Justices should be atheists.

    Any of the Justices with imaginary friends should never allow that sort of thinking to influence their secular decisions.



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  • Neodarwinian #2
    Feb 19, 2016 at 5:12 pm

    Any of the Justices with imaginary friends should never allow that sort of thinking to influence their secular decisions.

    They would really have to have very strong willpower and commitment to impartiality, to restrain their god-delusions, (or rather weak god-delusions), in order to make that work!



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  • Doesn’t that just sum up up pretty much everything that is wrong with America when a senior justice’s main problem with the the court he’s on that’s supposed to be secular and unbiased is that it doesn’t have an evangelical christian or a protestant? Disgusting! The very fact that he can frame his comments in respect of the religious views of the judges rather than their judicial qualities shows his complete disregard for the actual job he was elected to do.



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  • Australia has had an openly gay atheist on the High Court and no one cared. Justice Michael Kirby is an eminent jurist before appointment to the High Court. On retirement he was appointed by the United Nations Human Rights Council to lead an inquiry into human rights abuses in North Korea, which reported in February 2014. He holds the honour AC, a Companion of the Order of Australia (Equivalent Knighthood).

    The Australian constitution puts a compulsory retirement age of 70 for all High Court Justices.

    This is the role of the Australian High Court.

    The High Court exercises both original jurisdiction (cases that originate in the High Court) and appellate jurisdiction (appeals made to the High Court from other courts). The High Court is the court of final appeal with the ability to interpret the common law for the whole of Australia, not just the state or territory in which the matter arose. The High Court’s broad jurisdiction is similar to that of the Supreme Court of Canada and unlike the Supreme Court of the United States which has a more limited jurisdiction. As such, the court is able to develop the common law consistently across all the states and territories. This role, alongside its role in constitutional interpretation, is one of the court’s most significant. As Sir Owen Dixon said on his swearing in as Chief Justice of Australia:

    *”The High Court’s jurisdiction is divided in its exercise between constitutional and federal cases which loom so largely in the public eye, and the great body of litigation between man and man, or even man and government, which has nothing to do with the Constitution, and which is the principal preoccupation of the court.”[2]**

    This broad array of jurisdiction enables the High Court to take a leading role in Australian law and contributes to a consistency and uniformity among the laws of the different states.[3]

    The court has 7 judges from diverse backgrounds. The judges are appointed by the Governor General (President) on the bipartisan advice of the parliament. Both parties agree on the nomination. The court interprets the law. It is silent on morality. When a case comes before it, it decides the matter on the interpretation of the current law. If a High Court Justice wrote what Scalia wrote in a judgement “protecting themselves and their families from a lifestyle they believe to be immoral and destructive.”, he would legally chastised, diminishing his legal standing, and would find the decision 6-1 against him.

    The High Court has no role in deciding societal values. That responsibility rests entirely with the Parliament. The High Court just rules on the law. If the Parliament is not happy with the High Courts interpretation of the laws they have passed, it is up to the parliament to amend the laws, which of course will involve the assessment of the voting public at the next election.

    I write this as a comparison to the articles recently posted and commented on in this forum. I know Stardusty Psyche believes everything in America is perfect, but to other readers, I commend this method of legal action by Australia’s High Court. It means that only eminent jurists get appointed, on the recommendation of both sides of politics. This means you don’t get Scalias or obvious left wing judges. It means that the Judges personal beliefs do not figure in the judgements because only the law is in question. There is a confidence in the High Court held by the citizens.



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  • If we want to be inclusive, I would nominate Lewis Black for the Scotus.
    I’m sorry I can’t be serious. This has got to the point of absurdity.
    And Lewis Black will get things straightened out.



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  • Are any of you Americans? Tried and true red, white, and blue citizens of the greatest country in the world?

    If you are then you must realize how facetious my first two phrases are.

    We have a very poor turnout in voting registration AND actual voting. In 2008 a HUGE election year when we voted in Barack Obama as our first black president, only 48% of adults who can vote even bothered to register. Of that percentage only about 42% voted. (Do the math…)

    The folks who ALWAYS vote in America are the “one issue” voters. If a candidate is anti-abortion (only subject he brings up) OR pro-gun (anti gun regulation of ANY kind), pro “religious liberty”–(which means I get to discriminate anyway I want because of my religion), OR anti-gay (“homos” should be executed or not allowed to enter the country) OR anti-immigration especially Muslims and Mexicans, then all the candidate has to do is keep beating the drums on that “one issue” and these folks turn out in droves.

    Intelligent high information voters don’t even bother to register much less vote.

    When asked what candidate people would NEVER vote for.. atheists are at the top (or bottom) of the list. Period. Wouldn’t matter if one has a PhD in astrophysics, an MD, graduated from a “public Ivy school” (Stanford, UCLA, MIT etc) if that person wasn’t a 100% Christian that person has NO CHANCE of an elected or appointed national office. Trump, Cruz, Rubio, Jeb!, all tried to say who was the MOST Christian. Marco Rubio the son of two Cuban immigrants converted to Catholicism and attends two churches! Saturday he attends a Christian Church, and Sunday he attends Catholic Mass. Rubio is also against ANY immigration path.

    Ted Cruz the son of a Cuban immigrant dad (dad is a hell and brimstone preacher) and born in Canada is anti-immigration–doesn’t even want to consider a legal path to citizenship. He says that he is a Christian first and an American second. He said that any man who doesn’t get down on his knees every morning CANNOT be president. I guess he means he prays when he gets down on his knees…

    Donald Trump said he was more Christian than the pope! Next to his book “The Art of the Deal” the Bible is the best book ever written. (Not Shakespeare? Chekov? Hesse?) He is VERY anti-immigrant to the point he said he will build a wall, a “beautiful” wall across our Southern border AND MAKE MEXICO PAY FOR IT. The border between Mexico and the USA is nearly 2,000 miles long. (No one ever mentions the tunnels…) and Trump’s mother was an immigrant from Scotland. Oh BTW–25% of Americans were unable to point out this 2,000 mile border on a map. Most pointed to the Canadian border.

    There was a TV program called “Duck Dynasty.” A family of “God-fearin’ good ole boys who designed a superb “duck call” used in hunting and became multi-millionaires. They had their own TV series always talkin’ about the Lord, white supremacy etc. The head of the clan Phil Robertson speaks at Republican rallies and was invited to the Capitol to watch President Obama’s State of the Union address. He was treated like a celebrity, a rock star, like Ted Nugent. (Google both of these names.)

    Phil Robertson spoke at a Prayer Breakfast–yes America has Prayer Breakfasts even at the national level. (At one of these Prayer Breakfasts with the President in attendance, Dr. Ben Carson (Google this name and “Jesus”) who is black said that Obama’s Affordable Care Act, our first step towards health insurance for all, was WORSE THAN SLAVERY.”

    Anyway, Phil Robertson spoke at this prayer fest and ranted about a daydream he has of torturing, raping, and murdering an atheist family and was cheered. CHEERED for wanting to torture and kill children of atheists!

    http://www.orlandosentinel.com/features/religion/os-ap-phil-robertson-atheist-speech-story.html

    The USA is a nut farm. 43% of Republicans think that Obama is a Muslim so can’t be trusted.

    I now live in the South in states called “The Bible Belt.” If I even HINTED that I was an atheist my neighbors would burn my house down and lynch me…and I’m white! We are like homosexuals in the 1940s and 1950s. People would rather kill us than listen to anything we can say. Americans don’t listen to reason…we are terribly uneducated and just plain dumb. In the ranking of OECD countries ( Organisation for Economic Cooperation and Development) the USA is at the bottom in average IQ. ~94

    There is NO way that any federal office will EVER have an atheist. NEVER.

    The seas will rise and wipe out all of America’s coast lines as these “Christians” do NOT believe in climate change, don’t believe in evolution (are all creationists), think the world is 6,000 years old, and our federal government even subsidizes a museum that shows humans riding dinosaurs on saddles. Look it up!

    http://creationmuseum.org



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  • @alf1200

    I unfortunately know Lewis Black personally–have for over 25 years.

    I am very open-minded but I never met a more disgusting person and it has NOTHING to do with whether he believes in a god or not…he was raised Jewish but hardly believes in the Old Testament.
    In front of an audience he is funny…but he has a very dark side combining sexuality and death. He’s a scary guy! Not what you would imagine at all.



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  • We here in Canada are subjected to the same mind-set, particularly in the past two terms of the previous Conservative government. Archaically similar, Supreme Court judges are appointed / selected based on the veto power of the reigning PM, but hugely influenced by the christian radicals all the same. We have been challenging laws which pratronize one particular ‘special interest group’ , and discriminate against all others. One small example of the abuse of power (PM) was when prisoners were no longer allowed representation / support from their particular faith, excepting if they were christians! Yes this was the Prime Minister’s Office instructing the courts to terminate all services for non-christian prisoners. Unless they wanted to ‘get saved’ of course. There is also pressures on local governments to cease opening council meetings with christian prayers. The idea of opening with a prayer is bad enough, but disallowing any other special interest group to say their ‘prayer’ is also not okay. We expect our elected leaders to use creative / critical thinking, not their imaginations to carry out the duties. Our courts have shown very little interest is supporting our freedom from religion. This I believe is where the voice of advocacy needs to be strongest, not like the discrimination workers are currently facing in the US regarding selective medical insurance coverage. Lastly I should comment that Canada’s Provincial education budgets finance ‘private’ schools (religious) where science is again not on the curriculum. So, I agree, we need more Atheists on the bench. Transparency is not the same as being invisible.



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  • Helen #7
    Feb 24, 2016 at 12:19 pm

    Dr. Ben Carson (Google this name and “Jesus”) who is black said that Obama’s Affordable Care Act, our first step towards health insurance for all, was WORSE THAN SLAVERY.”

    Perhaps he made a very profitable living from a career in commercial medicine and identifies with the profiteers, rather than the citizens!

    In the ranking of OECD countries ( Organisation for Economic Cooperation and Development) the USA is at the bottom in average IQ. ~94

    Ah! But it has been top by a long way for years, in the price it charges for healthcare!

    https://thesocietypages.org/graphicsociology/2011/04/26/cost-of-health-care-by-country-national-geographic/



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