Writing at Slate, the always interesting Dahlia Lithwick takes a look at the mostly unspoken charge that the religion of Supreme Court justices improperly effects their decisions. Do we hear so little about this issue (specifically, the number of Catholic justices currently on the court) because it's out of bounds? Or simply because it's not a serious concern?
We generally don't talk much about religion and the Supreme Court. We talk about the need for race and gender diversity on the court in brave, sweeping pronouncements: The court needs more women, we say, or more Asians, or more gay and disabled people. Because all those things will impact the law. But when it comes to talking about religious diversity, it happens in whispers, if at all. Because it might impact the law. For a small handful of Americans, the fact that six of the nine justices on the current court are Catholics is an underreported national scandal. But for most, it's just quirky news.
I disagree with some of this. First of all, when "we talk about the need for race and gender diversity in brave, sweeping pronouncements" – when I do, anyway – it's not as she says "because all those things will impact the law." It's because all those things offer no threat to the law; because there is zero reason to restrict the court's membership; it's because no race or gender holds the market on faithful, intelligent, impartial readings of the Constitution; and because we are all equally American, regardless of race or gender. If diversity on the Court is a worthy goal, its purpose is not to "impact the law," but rather to avoid discrimination and bias borne of habit, and to send a message to the country and the world about the equal opportunity shared by all Americans.
It is certainly true that a judge's background – including religion – impacts his or her world view. But it is a surely unpredictable formula of indirect influence, which neither could nor should be purposely brewed merely with a nod to the race, gender or religious perspective of a nominee.
Judges should be selected and evaluated based on the demonstrated ability to apply the law fairly. A religion is not in itself a judicial philosophy (even if some of its followers would like it to be!). It does not necessitate a particular legal viewpoint, imply one, or by its nature impede a person from being a good judge, faithful to the law, devoted to the ideals of the Constitution. That is why the religious makeup of the court is not a story. It is no threat to the law. The threat worth worrying about is the one to religious liberty if we don't ensure judges that understand and are committed to preserving it, whatever their background or personal beliefs! The desire to chip away at the separation of church and state can come from justices of any religious identity.
