By my count, the United States Conference of Catholic Bishops filed amicus curiae briefs in 22 cases during the Rehnquist Court. (For a spreadsheet showing USCCB amicus briefs and Justices’ votes for OT86-OT10, see here. Please let me know if the spreadsheet contains any errors.) Ten of the briefs dealt with religious liberty (encompassing statutory, Free Exercise, and Establishment Clause cases); six addressed abortion; three were about end-of-life issues; two involved the death penalty; and one addressed associational freedom. The chart below provides for crude comparisons among the Justices, placing them in an array of more or less agreement in their votes for the party (petitioner or respondent) supported by the USCCB’s amicus curiae briefs. Direct comparisons cannot be made among all the Justices due to the changing composition of the Court over this time period.
|
Justice Name |
Agreement with Bishops’ Conference as Percentage of Cases |
Agreement with Bishops’ Conference as Fraction of Cases |
| Justice White |
100% |
10/10 |
| Justice Scalia (Catholic) |
86% |
19/22 |
| Justice Kennedy (Catholic) | 86% |
18/21 |
| Chief Justice Rehnquist |
82% |
18/22 |
| Justice Thomas (Catholic) |
79% |
11/14 |
| Justice O’Connor |
77% |
17/22 |
| Justice Breyer |
58% |
7/12 |
| Justice Souter |
53% |
8/15 |
| Justice Brennan (Catholic) |
43% |
3/7 |
| Justice Ginsburg |
42% |
5/12 |
| Justice Stevens |
36% |
8/22 |
| Justice Blackmun |
20% |
2/10 |
| Justice Marshall |
13% |
1/8 |
The point of counting votes in this particular way is not to assess the influence of the Bishops’ Conference. It is highly doubtful that the Conference’s presence or absence as amicus curiae has had any effect on how the Justices voted. The point, instead, is to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.
[Cross-posted at CLR Forum]
So is it far to conclude then (or is it your argument in the paper) that judicial “ideology” is more indicative of how justices vote than their religious affiliation?
Cagle
Yes, I would argue that–as a general matter–ideology is more indicative of how justices vote than their religious affiliation. That is the prevailing view, and I see no persuasive reason to believe that it is wrong. I do not attempt to prove that claim in any rigorous fashion or to demonstrate that religious affiliation has no effect. The gross generalizations behind some of the claims about specifically religious motivations for Gonzales v. Carhart are unsustainable. Because the influences of religious beliefs vary from judge to judge and interact in complex ways with specifically legal views (e.g., about the judicial role), one should be very cautious about generalizing about the Justices of any particular faith as a group.