God And Man At SCOTUS

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.

35 thoughts on “God And Man At SCOTUS

  1. Michael Shapiro

    To quote the late Christopher Hitchens, “Religion poisons everything”. Yes, we hope that SCOTUS justices can separate their deeply held religious beliefs from their decision making but have no way of assuring that they do. And, as you accurately note, for a religious individual their beliefs are integral to who they are. I am not at all comforted that x number of justices believe in an omnipotent, omniscient, invisible supernatural deity. For all we know such justices may pray to that deity to give them divine inspiration in deciding cases. If one believes in an omnipotent deity, you’d be foolish to not seek such inspiration. I don’t know about you, but I find that notion frightening.

    1. SHG Post author

      Much as I like Hitch, he was a bit extreme when it came to religion. Would we be better off with atheists? Agnostics? Justices with no “moral compass” other than what they divine from their con law prawf at Harvard Law School?

      1. Michael Shapiro

        Yes, we’d be better off with atheists. The notion that atheists have no moral compass is a religiously inspired canard. Plato, Socrates, Aristotle, Eastern philosophers and many others wrote eloquently about morals and ethics without subscribing to the supernatural. Modern research by evolutionary geneticists provide a scientific foundation for innate morality. And, as an atheist, I can also recognize that the great moral teachings of the world’s religions are the result of human thought and not the supernatural.

        1. MT

          Mao and Stalin were atheists. The current CCP is run by atheists. Your argument is just as stupid as the “we’d have world peace if women ran politics” canard. Religion only changes the flavor of the potential for evil that runs in every human heart. And thinking an atheist is immune to the horrors that humans commit when in power makes you more dangerous that a humble, pious Christian.

          1. Michael Shapiro

            You can’t lose when responding to an argument that wasn’t made. I never intimated that atheists had a monopoly on morals or even that all atheists are moral. I merely pointed out that morality and atheism are not mutually exclusive.

            1. JMK

              >You can’t lose when responding to an argument that wasn’t made

              Pot, meet kettle? Your thesis statement was “we would be better off with atheists” to which his response was a fair criticism.

            2. PseudonymousKid

              I’m agreeing with Miles here. You’re getting ahead of yourself and feeling superior when you shouldn’t be. MT disagreed with your position that we’d be better off with atheists. You didn’t respond. You can and did lose. Loser.

              No, I don’t want an explanation or response. It would be pointless. Please don’t try and please don’t take this personally. I get cranky when our Host brings up morality.

            3. Michael Shapirp

              Ad hominem is invariably the last refuge of those with nothing worth saying. But, don’t take it personally.

            4. PseudonymousKid

              No. If I said you’re a fucking dunce who is incapable of making a valid argument, then that is an example of ad hominem. You’re a loser because you lost, you fucking dunce. See there? I can call you a name directly and it’s still not ad hominem. I can even say you committed the fallacy fallacy, or at least tried and failed to because you’re incapable of making a valid argument, you fucking dunce. Still not ad hominem. Do you get it yet?

              I’m convinced our Host is letting you through just to annoy me at this point. It’s working. Please trash this if it’s too mean, but this guy deserves it.

            5. Alex S.

              You’re new here, so you don’t realize how anyone on the fence about your stupidity concluded you are a complete moron from your last comment.

              In the future, please remember that it is better to remain silent and be thought a fool than to post and remove all doubt.

        2. DaveL

          In my lifetime, I’ve seen so many claims of the flavor “we’d be better off with Insert Group in charge”. Sometimes it was Christians, Christians of a particular denomination, maybe clergy specifically. Sometimes it was women, sometimes it was certified-grade-A Alpha Males. I’ve heard it said about workers, about soldiers, about land-owners, about business owners, about scientists, about scholars in general.

          Let’s just say that, for many of these claims, there are historical examples we can use for verification, and the results do not inspire my confidence.

        3. Drew Conlin

          I’m always amused when atheists evangelize. I’m sure you’re more intelligent than I am Mr. Shapiro but there are some that could give you a damn good argument…. I believe in live and let live.

          1. Michael Shapiro

            I’m not interested in infringing on anyone’s beliefs including QAnon adherents. Supernatural mumbo jumbo is not for me but, it’s a free country. On the other hand I find many believers in a supernatural deity very reluctant to become well versed in the extensive thought and writings of atheism, old and new and I wonder why that is.

        4. Pedantic Grammar Police

          Atheism is just another religion. Not a particularly nice-looking one, from the outside. At least Christianity has a nice mythical figure that we can all admire and emulate. The dogma of atheism only inspires nihilism.

      2. PseudonymousKid

        Pops, please don’t do this. This is philosophy SJ, and you know I hate it when you try to say anything affirmative at all about anything to do with morals.

        You abhor moral arguments so much that you make an abhorrent moral argument that says we ought not make moral arguments. Gross.

        Agnostic atheists who sincerely considered themselves faithful adherents of a religion and don’t resent their religious experience is the obvious answer. Someone who understands what all this “faith” stuff is about but ultimately agrees with me, in short. Really, the ability to set aside personal belief is paramount, but I had to take a narcissistic stab at the question anyway.

        1. SHG Post author

          You will not be winning the Christopher Hitchens prize again this year. However, you are in the running for the Judith Butler Prize.

    2. Nyx

      There is no way to assure that a Supreme Court justice can separate any of their beliefs, political, religious, or otherwise, from their decision making. No doubt their beliefs are also influenced by their experiences as men and women, too – but that doesn’t mean that the three out of four female justices that dissented were unduly influenced by their experiences. Everyone has beliefs, history, baggage, and prejudices that they bring with them, and it’s unreasonable to expect that even SC justices could be otherwise.

      1. Richard Kopf


        Wrong, my friend.

        As a mere mortal federal district judge I enter order after order that offends what little moral certainties I possessed before I got the judge gig. Truly.

        It is not that I am (or we are) immune, but rather I (and we) fight against baked in prevalence and prejudice. That does make us different.

        But better? You got me! I don’t know for certain, but for the job of judging I think so.

        All the best.


  2. Michael Shapiro

    But the way, you probably have Bill Buckley, whose first book title you paraphrase, turning in his grave. While Buckley’s book bemoaned his perception of God’s absence in the pedagogy at Yale in the early 1950s, the current SCOTUS doesn’t seem to suffer from such a deficit.

    1. Miles

      Was this supposed to be an epiphany, as if no one else but you caught the title? Too bad you didn’t grasp the irony of the post.

      Damn, you are insufferably pretentious.

  3. delurking

    There are seven Catholic or “raised-Catholic” justices on the Supreme Court; 2 voted for an injuction and 5 voted against. A Catholic president supports the injunction. So this proves Catholicism poisons things.

    They pay her for this pontification, right?

  4. Rengit

    What does she mean about religion being American society’s “last taboo”? She lists sexual identity, gender identity as taboos that have been shattered, but the thrust of the conversation around those issues now is that a person declares such an identity, and it is then off limits for other people to question that identity or suggest that it somehow corrupts their ability to function in other areas. Almost no one would suggest that a gay judge is incapable of being a judge.

    Conversely, Greenhouse seems to want to break a “taboo” that dates back to the founding, and change things such that one’s private religious beliefs, and the church/ synagogue/ congregation/etc attend, should be open for questioning by others and used to discredit their ability to function in other areas of life. This is the direct opposite of what has happened with the sexual/gender taboos.

    1. Dan

      More than that, she wants to break a “taboo” that’s explicit in the Constitution itself.

      But it’s interesting to me that it’s only a bad thing for justices’ personal backgrounds to play a role in their decisions when those personal backgrounds don’t lead to “progressive” results. The self-described “wise Latina” wanted the country to believe that her possession of a vagina and her heritage from parts of the Americas further south than we would affect her decisions, and in a positive (i.e., “progressive”) way. Assuming that to be true, why should it be per se a bad thing when other life experiences color a justice’s views?

  5. Anonymous Coward

    Apparently CRT now means Critical Religion Theory. Expect to see “Christian Fragility” in bookstores in time for the holiday season.

  6. Bryan Burroughs

    I eagerly anticipate the shrieks and howls when a Muslim judge is questioned as to whether he can fairly adjudicate a case involving Sharia principles. Or when a lesbian judge is asked if she can fairly preside over a case involving gay rights. The pitchforks and torches would be out in full force.

    But Catholicisn? F it. That’s fair game.

    1. Jeff Davidson

      He’s not a lesbian, but Vaughn Walker could discuss this with you. Shrieks and howls didn’t ensue, but plenty of people pointed out that the same criticisms directed at him could be directed at a straight judge.

  7. Skink

    For those of you that haven’t treated this Hotel for the thoughtful place it is, them are the words of not just a judge, but a regular man.

    Man or woman, judges think like Rich. You think they have baggage; they purposely reject that baggage. They judge. Many of you try to put some kind of spin or devious reason behind the decisions, but they just judge.

    You don’t get it because you can’t conceive the possibility anyone can put all beliefs aside and decide merits. That’s sad for you, but good for all.

    1. David Landers

      I’ve been reading SJ for ten years and Skink’s comment ranks as one of the best I’ve read.

      David Landers

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