How should our Supreme Court justices embrace their religious preferences? In another stunning blog post on CNN Stephen Prothero confronts the tendency to think that justices of the Supreme Court lose all personal touch with the world in which they have lived — a world that largely includes religious temperaments and experiences. (We have blogged about Stephen’s other posts here). Stephen writes:
If Supreme Court justices were impersonal computers, taking in laws and facts and spitting out impartial decisions, then we would not need religious diversity on the court. We wouldn’t need racial or gender or regional diversity either. Nine old white Catholic men would work just fine. Or for that matter nine young African-American Muslim women. But the world is what it is. And it is in the real world, not the world of should and supposed to, that the flawed and imperfect human beings we call justices operate.
So here is the question I would put to my critics: Are human beings creatures of objective thought, able to click their fingers and magically set aside their biases, passions and “self-love”? Or are we creatures of subjective passions whose interests should be subject to the sorts of checks and balances that Madison so vigorously defended and a diversity of experience offers?
Judges do make decisions based on experience. Holmes’s haiku laden phrase “The Life of the law has not been logic; it has been experience,” begs the question of whose experience (did not know that this quote maintained a 5-7-5 structure did ye?) If the experience of the law is the collected experience of us all, then perhaps the law should be agnostic towards the individual faith. But as we know, the law’s experience has excluded as much as its included, whether by race, wealth, gender, property or sexual orientation, the law’s experience has not been all of our experiences. Why then should we expect the experiences of the whole, to be excluded because we perceive that the whole has been adequately represented. After-all, should we treat our judges as potted plants? See i.e. Richard Posner, What am I? A Potted Plant?, The New Republic (1987).
These tendencies to down play the individual experience in favor of the collected experience is revealed perhaps most acutely in one’s religion. We can see that in the exchanges during oral arguments with Antonin Scalia and Anthony Kennedy, during the Salazar v. Buono hearing. (Salazar v Buono involved the maintenance of a cross in the Mojave National Preserve erected by the Veterans of Foreign Wars after World War I). Both of Scalia and Kennedy are devoutly catholic. At one point, when it was suggested that a Jewish star would more appropriately honor the Jewish soldiers that died in World War I, Scalia responded
“It’s [the cross is] erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”
Later in the same oral argument, Justice Kennedy said:
Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Time also has played its role. The cross had stood on Sunrise rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness . . . Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage . . . a symbol that . . . has complex meaning beyond the expression of religious views . . . one Latin cross in the desert evokes far more than religion.
I want to point out that both Scalia and Kennedy seem to neutralize their religious sentiments in favor of a secularized view of the cross. Let me say, they are right. The cross serves a secular function in our country, depicting our shared national myth of a Western Christian world. But here is the ultimate question. Who actually believes the justices when they down play their religion. Scalia, more so than Kennedy created substantial commentary largely because it was so shocking to hear him, of all justices, secularize a symbol of his own religion. These justices cause us to consider whether their words are to be read through the lens of an ironic reader. Just as we might question the double meaning of Billy Budd’s “farewell to the Rights of Man” upon being conscripted aboard an English vessel, we might also question the ironic tone of Scalia and Kennedy’s remarks. Scalia and Kennedy want us to believe that they can take off their religion like a coat and commence judging, saying “farewell ye vestments of faith.” Like Prothero, I seriously doubt that they can. Like Billy Budd, I am not sure we should read them literally even if they think that they have succeeded.