What Do We Need in the New Supreme Court Justice?

If you follow almost any source of U.S. news you will know that Justice John Paul Stevens is about to retire from the U.S. Supreme Court. As soon as the retirement was announced, speculation began about what kind of nominee President Obama would choose to replace him. And of course various interests will no doubt be lobbying for particular kind of nominee.

One party expressing interest is Barry Lynn, executive director of Americans United for Separation of Church and State. He said that, "Justice Stevens is an icon -- a thoughtful, perceptive justice who understands the role of church-state separation in American life..." He also said, "It is vitally important that President Obama choose a high-court nominee who understands that government may not meddle in matters of religion."

And there we have a good example of one side's position. It is important to note that the Constitution does not contain the phrase "separation of church and state" or "church-state separation." Those are forms of a metaphor Jefferson once used to describe the religious Establishment Clause of the First Amendment. That clause says simply, "Congress shall make no law respecting an establishment of religion..." The other half of that portion of the First Amendment, the Free Exercise clause, says, "[Congress shall make no law] prohibiting the free exercise thereof;" If one wishes to rely on a metaphor to understand the meaning of the clause (a dangerous practice), one might with to think of a phrase Jefferson used many more times: "freedom of religion."

But even going to Lynn's words above ("government may not meddle in matters of religion"), one could have trouble understanding Stevens' opinions on several cases. In one case, he sided with those who would strike down an Alabama law allowing student-led prayer in public school. If the hand of government is not supposed to meddle in religion, how do we interpret the action of the Federal Government striking down a state law that allowed student-led prayer? Which demonstrates more government meddling, a law that allows students to initiate prayer, or The Supreme Court of the United States saying that students may not initiate their own prayers in public school events?

Personally, I don't want a new justice who pushes my own agenda. Nor do I want one who opposes it. The role of the Court is to interpret the laws based on the U.S. Constitution. They are not supposed to decide if a law is a nice thing, or if a law is important to our society. They are simply to evaluate laws based on the requirements and limits of the Constitution.

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Church-state advocates urge strong successor for Stevens