Thursday, June 10, 2010

The Religion of a Judge

Elena Kagan’s Supreme Court confirmation hearings is still about two weeks away. Before this blog post gets lost in the cacophony that is sure to accompany the hearings, I’d like to devote some space again to the issue of religion in the judiciary, and in particular, the religious beliefs of the justices. Much has been discussed (and even lamented) about the impending absence of Protestants in the Supreme Court. It is wonderful of course to see Jews and Catholics, previously marginalized and discriminated , finally achieving positions of enormous responsibility. Taken together however, this outcome is probably no more different than the election of Barack Obama as the first African-American president of the United States.
So the question is, should the religion of a judge even matter?
This was the subject of a recent Guardian article discussing the relevance of religious beliefs of its judges. In a recent 5-4 decision of the UK Supreme Court denying a Jewish school the right to apply Orthodox standards as to who counted as a Jew for purposes of admission, the article notes that the nine justices were convened with due regard to their religious backgrounds because of the sensitivities involved in the case.
As much as we like to believe that judging is simply putting blinders on and just applying the law to the facts of the case, I’d like to echo one observation made by Dahlia Lithwick on David Souter’s Harvard commencement speech. Judging is hard. It is a matter of skill and craft surely. But judges are also people. They are products of their history, and of their environment. Prudence and wisdom, usually acquired through education and experience, tend to balance out these natural biases and predispositions. In law school, I learned a most valuable postmodern lesson: there are no right answers. It’s almost always a matter of argument. Law is not there to be simply discovered. Sometimes one must choose between two equally sensible but opposing constitutional interpretations.
The answer is therefore yes. Religion should matter. It should be a fair question to ask during the hearings. Not because we have suddenly become a theocracy but because the people should have a right to know a public official’s inclinations and to scrutinize it. It is not because justices might apply the standards of their own religion (see e.g. Dworkin on the right-wing Catholic majority of the Supreme Court) but because they would probably see things in a certain way. How can we figure out what empathy means within the context of judging if we don’t open it up for discussion? If consider it from the outset as taboo? As having no place in a judge’s arsenal of tools for interpretation?
We will have, for the first time, a Supreme Court without Protestants, the religion of the majority of this country. But this doesn’t mean cases that would involve Protestant beliefs would receive unfavorable impressions or that Catholic or Jewish claims would be favored. It just means we are starting to look beyond labels. But at the same time, religious affiliations are not simply labels. They connote a certain worldview that can belong anywhere in a huge spectrum from extreme conservative to extreme progressive, within the same religious tradition . Those worldviews, impossible to be discarded temporarily even if we want to look at judges as mere neutral umpires, should be a valid question up for discussion. Now that would be a good teaching moment for the role of religion in American public life.

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