In a USAToday op-ed, law professor Stephen Prothero becomes one of the few – maybe the only? – to argue that the religious beliefs of Supreme Court justices should be taken into account.
When it comes to judges and their biases, there are only two types: those who acknowledge their biases and therefore try not to succumb to them, and those who are ignorant of their biases and therefore succumb to them unwittingly. A judge steeped in Catholic traditions of Scripture and authority cannot help but interpret the Constitution in light of these traditions. Similarly, a judge who is Jewish cannot help but be a Jewish judge.
To take one recent example, would an atheist justice ever contend, as Justice Anthony Kennedy (a Catholic) did in the majority decision concerning the cross in California's Mojave National Preserve, that this central symbol of Christianity somehow managed, upon being placed in the desert, to magically turn off its transmitter — that it no longer sends, in Kennedy's words, "a Christian message"?
Of course, Prothero picks a case about religion since it's the only remotely applicable subject matter, but even that refutes itself. The Mojave Cross decision was a 5-4 opinion after all. While Justice Kennedy may have been in the majority, Justice Sotomayor, also a Catholic, took the exact opposite position. In other words, his Catholicism did not lead Justice Kennedy to his judicial opinion.
Meanwhile, at the Washington Post, Melissa Rogers explains why Supreme Court nominees' religious background should be "out of bounds"; Brent Walker makes the case that while religious diversity on the court would be a good thing, a Justice whose legal philosophy respects and defends the diversity of religious views across the country is far more important.
