Faith in the Supreme Court
Does a justice’s religion matter?
Under Slate‘s “jurisprudence” section, Dahlia Lithwick addresses a taboo subject – the religious beliefs of Supreme Court justices. Interestingly enough, we now have six Catholics on the court, two Jews, and only one Protestant. For reference, about 50% of Americans are Protestant, 24% are Catholic, and only 1% are Jewish.
Ok, so what? Does the religious identity of judges actually influence their decisions? Geoffrey Stone, a law professor at the University of Chicago, has come under fire for suggesting that it might. In Gonzales v. Carhart (which was settled when Justice Souter, an Episcopalian, was still on the court), the five Catholic justices overturned settled precedent on partial birth abortions, while the Jewish and Protestant justices dissented. Stone is uncomfortable with the implications:
By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.
Lithwick shares Stone’s concerns about religious belief seeping into jurisprudence, but posits that a justice’s stance toward strict or evolving precedent is probably more central to controversial moral decisions than personal faith.
I think Professor Stone’s remark about the “fundamental difference between religious belief and morality” deserves more attention, however. It is important to note that he followed this with the admission that it is an “elusive distinction,” and that its motivating force is our commitment to “separation of church and state.” But to answer the question “Why is it wrong for justices to seek moral guidance from religious belief?” with “Because church and state are separate” is a tautology.
Questions about justice’s personal faith are especially touchy because there is considerable debate about whether or not they should be making moral judgments at all, much less religious ones. Antonin Scalia, who was so upset at Stone for suggesting the “Catholic motivation theory” that he is refusing to visit the University of Chicago, is of a clear mind on this – as a strict textualist, he insists that normative moral judgment, religious or not, is not part of his job.
But to others, identity and ideology are inseparable even from narrow legal decisions. If we think it matters whether there are African Americans, women, or members of different religions on the court, it’s probably because we think who you are really does impact legal judgment. We pretend that court appointments are apolitical – that judges’ political, moral, and religious views don’t matter – because it makes the judicial branch seem professional, nonpartisan, and incorruptible. The assumption that jurisprudential commitments to certain fundamental rights, adherence to precedent, or jurisdiction are somehow amoral or uncontested is equally dangerous.
Scalia and Stone don’t have a lot in common, but they both make the mistake of thinking “personal religious faith” can be cleanly cut off from morality, and that morality can be equally cut off from jurisprudence.
-Colin
Photo by wallyg used under CC license.
Related posts:
- Too smart for the supreme court?
- Reason and faith in higher education
- Guest post: Picking the next Supreme Court Justice
- Should Supreme Court justices have opinions?
- Douthat on religious dialogue
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