If it’s been unclear up to now, I abhor arguments grounded in claims of morality. This isn’t because I have no morals, or have anything against people who do, but that it’s not an argument except at its fringes. If something is so wrong that it’s universally considered immoral, then there would be no need saying so or arguing it.
After all, it would be so obvious as to not need to be said. So if you have to say it, chances are very strong that it’s not obvious or universally accepted, but merely one person’s idiosyncratic version of morality. That doesn’t make it wrong, but it does make it unavailing as an argument. No one needs to be informed of your version of morality when they have their own, thank you very much.
And that includes Supreme Court justices. Their sense of right and wrong, morality and immorality, derives from their life experience, and if there is anyone from whom one derives their sense of morality, it’s a priest (used in a non-denominational sense). Religion plays a huge role in the nuanced formation of our moral sensibilities, for better or worse. Lawyers, on the other hand, are not moral arbiters even though it’s become fashionable for many to claim otherwise. So how does this intersection of morality from one’s life experience and fealty to law play out? Linda Greenhouse has her view.
The Supreme Court has come in for plenty of well-deserved criticism for last week’s midnight maneuver allowing Texas to enforce its new abortion law. The fact that the four of the court’s six Roman Catholic justices and a fifth who was raised Catholic but is now Episcopalian, all conservative, allowed a blatantly unconstitutional law to remain in place pending appeal has barely been noted publicly. (Chief Justice John Roberts and Justice Sonia Sotomayor, who are also Catholic, joined with two other justices in dissent.)
Lining up justices by religion is one way to explain things. Remember the qualms about electing JFK because of the fear that he would be a pawn of the Roman Catholic Pope?
The five who voted for Texas (and the chief justice) were placed on the court by Republican presidents who ran on a party platform that called for the appointment of judges who would overturn Roe v. Wade. Those presidents may well have calculated that the religious background of their nominees would incline them to oppose abortion, sparing those presidents from asking a direct question that their nominees would be bound not to answer.
Whether the religion of the five (or more) justices influences their sense of morality is one question. It would be fair to assume it does, given their life experiences. But it is a leap of faith to assume that they cannot differentiate their personal moral choices from their duties as justices. This seems almost inconceivable to many, Greenhouse being a notable example but hardly the only one, that a person can separate their beliefs from their reasons, their feelings from logic.
To the extent there is a fair comparison, this is the sort of thing a criminal defense lawyer does daily. We don’t feel that murder, rape, assault or any number of other offenses are morally acceptable. Many of us appreciate, perhaps even more than most, the harm our clients cause others. We’re far closer to it. We see it in its most nasty and brutish form. We have a visceral sense of the pain victims feel, the suffering our clients have put them through. We get it.
Yet, we defend our clients, even when we know with certainty that they did it. Most of us never ask whether they did it, because it’s irrelevant to our duty, but sometimes we know. And yet, we defend. Not because our moral compass is broken or we don’t care about the suffering of others, but because we understand what our duty is and how it fits in with a greater responsibility that keeps society from exploding.
Supreme Court justices, and all good judges for that matter, understand the same distinction between our sense of morality and our sense of duty.
Religion is American society’s last taboo. We can talk about sexual identity, gender nonconformity, all manner of topics once considered too intimate for open discussion. But we have yet to find deft and effective ways to question the role of religion in a public official’s political or judicial agenda without opening ourselves to accusations of being anti-religious.
Is that so? It seems that religion has been relegated to a petty right, a belief that’s roundly open to ridicule and derision. You believe in some magic zombie in the sky? When more secular concerns clash with religion, such as transgender people of late, there is almost no support for the perspective that it’s frowned upon by religious folks. And, indeed, there is a very strong argument that it shouldn’t be, as our government is and is supposed to be secular in nature, and no bible tells us who shouldn’t be able to live their life according to their own sense of gender identity.
But the fact that the sensibilities of Supreme Court justices as informed by their religion renders them incapable of doing their secular duty is an argument that plays upon the false claim that religion remains sacrosanct. Much as I support a woman’s right to choose as a matter of sound public policy, I am similarly capable of appreciating that other people disagree with me and believe that life begins at conception. I don’t so much fault them for their belief as disagree. But I similarly accept the premise that our nation cannot function without acceptance of the Supreme Court’s rulings, no matter how wrong I think they are. Abortion has been held to be a right, and so be it. It doesn’t matter whether I agree.
For a Supreme Court justice, however, with the ability to reverse precedent, this becomes a real issue, since they are the ones who get to change the law where I am not. But they, too, grasp the critical importance of how law fits within our governmental structure, and they, too, grasp that they have a higher duty than to indulge their personal sense of morality. At least they should and I, for one, desperately hope they do.
Unlike Greenhouse, I do not seek out excuses for why the Supreme Court will do the worst possible thing for the law. Unlike Greenhouse, I believe they will put aside their personal morality and uphold the law and the Court as a necessary institution to a functioning nation.