Physicist Lawrence Krauss argues in his latest for The New Yorker that Antonin Scalia’s replacement should be a “declared atheist”. He offers in support of this suggestion three main points: that an increasingly large proportion of Americans are nonreligious, and that an atheist Justice would represent this minority in government; that an atheist justice would “from a judicial perspective…be an asset,” because “In controversial cases…he or she would be less likely to get mired in religion-based moral quandaries”; and that the appointment of an atheist Justice would affirm the nation’s Secular roots, and “would affirm that legal arguments are secular.”
None of these points make sense. While an increasing number of Americans are indeed nonreligious, as Krauss himself notes only a fraction of that nonreligious population identify as atheists or agnostics. If we are going to select Justices in the hope that they will represent a particular religious population, then the most severely underrepresented group is Protestant Christians, who currently have no representative on the Court despite making up almost half of the US population. If there is an injustice here, Protestant Christians suffer far more than do atheists, and Krauss’ argument would suggest favoring them with a Justice.
Second, the idea that an atheist justice “would be more likely to focus on reason and empirical evidence” strikes me as a simple prejudice. While I will not defend Scalia’s legal reasoning, and agree entirely with Krauss in his criticism of the way in which Scalia’s moral and religious perspective clearly played an outsize role in his thinking (especially in cases concerning gay rights, which Krauss mentions), there is no guarantee that an atheist Justice would hold their lifestance in check any better, whatever it may be. Indeed, the fact that a majority of Catholic and Jewish Justices disagreed with and overcame Scalia’s objections in the area of gay rights demonstrates that some religious people are perfectly capable of the sort of legal reasoning of which Krauss would approve. Surely the selection process for becoming a Supreme Court Justice should focus on the candidate’s capabilities of legal reasoning, and not on their religious perspective – and if it did so, whether the candidate was an atheist or not would be irrelevant.
Finally, the idea that “the appointment of an atheist Justice…would affirm that legal arguments are secular” and that “it would be a tribute to the secular principles upon which this country was founded” is nonsensical. Purposefully selecting an individual to fill a Supreme Court position on the basis that they have a particular religious perspective is deeply anti secular, and would send the opposite message: that it is appropriate to mix church and state by considering a candidate’s religious perspective when deciding whether to appoint them. That is the death of secularism, not its affirmation.
Weirdly, Krauss notes this himself in the opening of his article, saying “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.” Yes, it does. We should respect that principle by appointing a Justice who will interpret the law with integrity and intelligence, regardless of their religious views.