By Ben Ganzfried
Robert Barnes’ recent article in the Washington Post entitled “High Court: Does religion still matter” poses the following question: “Does President Obama’s next Supreme Court nominee need to be a Protestant?” in reference to the fact that if Justice Stevens “decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.”
In our 2008 election issue cover-story entitled “Religion and the Supreme Court” our interviews with legal scholars elicited the following reflections on the relevance of religion to Supreme Court Justices decision-making (and in particular, that of American Jewish Supreme Court Justices, past and present). Professor Jeffrey Rosen said that “religious background is one of several elements of personality and temperament that may affect leadership styles, the way that a justice interacts with colleagues, and the way that he pursues his agenda, but it does not guarantee that he will vote one way or another.” Professor Douglas Kmiec noted “I think religion matters in the sense that people of faith have often made certain commitments to community and take those commitments seriously.” Professor Marci Hamilton posited “I think the faith of the justice is far less important than the justice’s attitude toward religion in society.” According to Professor Jamie Raskin, “The real question is whether a justice’s philosophical approach to religion reflects or mirrors his or her philosophical approach to law…to a certain extent, it almost inescapably and inevitably does.” Professor Laurence Tribe confidently asserted “A justice’s religious affiliation is unlikely in itself to determine that justice’s interpretation of legal and constitutional provisions or his or her approach to generic issues.” And Jeffrey Toobin answered “I think the fact that there are five Catholics on the Court is of little significance.”
These articles and interviews suggest that our public discourse is focused on the question: “Does religion influence the decision-making of Supreme Court Justices?” Given the abbreviated nature of these writings it is understandable that they do not clearly define the meaning of the terms “religion,” “influence,” and “decision-making.” Nonetheless, there are at least two large problems which arise from speculating about the role of religion on judicial decision-making without adequate definitions of the terms.
First, lack of precise definitions makes the question essentially become: Do minority judges make decisions based on their identity as a minority—and how does this affect everyone (majority included)? Such questions are uncomfortably close to the types of questions throughout human history to which we would rather not return.
Second, and more importantly given political realities, it is difficult to escape the conclusion that the answer to the question can only be sought in a political economy or game theoretic model. In other words, if religion influences the decision-making of Supreme Court Justices, the only way we could empirically validate such claims is through economic models based on rational choice theory. But religious values are mostly contradictory to rational self-interest and would pose significant barriers to mathematical models.
Instead of attempting to answer the question: “Does religion influence the decision-making of Supreme Court Justices?”– I shall replace the question by another, more fruitful one, which is closely related to it and is expressed in relatively unambiguous words. The new form of the problem can be described in the following language: “What will happen if a Supreme Court Justice makes a decision based on religious beliefs?” Will the public be better off when a decision is made like this or will the public be the worse because of it? This question replaces our original “Does Religion Influence the Decision-Making of Supreme Court Justices?”
Given the available alternatives to non-religious decision-making, I would hope that our Justices would at least have religious thinking at their disposal. To be clear, by religion, we are largely referring to the American civil religion since the differences between Protestant, Catholic, and Jewish Justices are much less than the shared beliefs: such as the fact that the rule of law, classical liberalism and good governance are essential to our democracy.
The least threatening alternative to religious decision-making comes from the at least nominally secular philosophy of Nozick, Rawls, Friedman and the Greeks. The much more problematic version would be the Kantian collectivist denial of individual right’s, or a Nietzschean-inspired post-modern philosophy. Given these alternatives, we are incredibly fortunate to have Justices with at least religious backgrounds, if not religiously-inspired judicial decisions.