Friday, April 9, 2010

Should religion matter in the Supreme Court?

Now that Justice Stevens has made official his upcoming retirement, it is now open season to discuss his possible successors and the identity politics that goes along with it. Whereas gender/racial diversity was the major issue surrounding the retirement of Justice Souter last year, it seems that religious diversity has finally popped into the picture this time around. With Justice Stevens' retirement, a largely-Protestant nation no longer has a representative in its highest court. Recalling the anti-Semitic and anti-Catholic episodes in recent American history, this would be historic indeed.
As Henry Abraham of Virginia Law puts it, the only thing that should matter is "competence, quality, education, ability, morals and so forth." But many scholars of both law and religion, including Mark Noll of Notre Dame, admitted that it could be viewed suspiciously. Not that Catholic justices take their cue from Rome. Catholic justices for instance have voted on both sides of the abortion debate. Justice Scalia himself stated that he does not follow the death penalty teachings of the Catholic church. But somehow it just doesn't look right.
We can look at this issue in different ways. First, according to Rick Garnett, it is largely a religious-secular divide. Notwithstanding the Huntington-esque Protestant conceptions of the American self, religious Americans for instance, can find identification with anybody who takes his/her faith seriously, whatever religion that is. Second, you can also look at it through the lens of gender or racial diversity. Sure, there should be no religious tests for appointment to any office. But if we take seriously the claims of proponents of gender and racial diversity or even affirmative action in general (or any let's-get-out of the Northeast/Ivy League box argument) that somehow you need somebody who can understand a particular view in a sympathetic way, then maybe religious diversity also does matter in terms of court composition. Moreover, can we really not find a good-enough Protestant? It is not as if we are sacrificing merit on the altar of diversity. Or third, imagine the Supreme Court with 6 Catholics and 3 Jews. What kinds of fear does that entail? Despite claims of multiculturalism, political correctness and post-everything, are most Americans just covert bigots?
So I think this goes back to my point awhile ago about representatives being representative. Can one empathize without being personally a part of that group? In Linda Greenhouse's profile of Justice Souter, published after the announcement of his retirement, Souter was described as having crossed the Atlantic only twice - first for his Oxford graduate studies and second to attend an Oxford reunion. Yet, in Sosa v. Alvarez-Machain, Souter, writing for the majority, displayed a kind of concern in upholding the jurisdiction of federal courts to handle claims made under the Alien Tort Claims Act, allowing people (and gasp - aliens at that) to claim for human rights abuses in US courts.
In an ideal world, Prof. Abraham is right. Merit is the only thing that should matter. But we remain to be products of our particular experiences and history. In an age of heightened culture wars, perhaps identity/religious politics is just simply unavoidable. Even as Americans claim the Constitution to be their sacred text, its priesthood - the Supreme Court - is still composed by men and women drawn from its collective self - the nation. Pick a Protestant now. And then maybe the Supreme Court should do well to add another to its list of tasks in shaping American history, that is, make religion (or identity in general) an irrelevant factor in the future.

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