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Does Faith Matter in Jurisprudence? PDF Print E-mail
Written by Michael Fones   
Thursday, 01 July 2010 16:04

Justice John Paul Stevens announced in April his upcoming retirement from the U.S. Supreme Court, prompting waves of speculation on whether the departure of the Court's only Protestant—six remaining justices are Catholic and two are Jewish—will matter. Elena Kagan, who has been nominated by President Obama to the open seat, identifies with Conservative Judaism, and has garnered at least some bipartisan support. Christianity Today posted an interesting series of comments on the issue of a Protestant-free Supreme Court.  The responses given by a variety of what I presume are Catholic and Protestant (or possibly unchurched) members of academia speak, perhaps unconsciously, to the state of religion in public discourse.

For the most part the respondents thought, as far as I could tell, that it would not make any difference whether there were Protestants on the land's highest court or not, although Dr. Noll indicates that it matters that this could be the situation by the end of the month.  He doesn't elaborate why he thinks it matters, although it could simply be a lack of diversity.  Here are a few of their comments.

"Does it matter for this particular appointee? I would say no. The question for this appointee, like all appointees, should be, 'Is the person nominated, qualified?' If the person is Catholic, Jewish, nominally Protestant, actually Protestant, or Muslim is relevant, but the key matter is to have a responsible jurist. [But] does it matter that the situation has come to this point? Yes, it does."

Mark Noll, professor of history, University of Notre Dame

"Who we are affects how we view things. In a small group like the Supreme Court, all of a person's identity features will affect how that small group of people makes decisions. But it's not clear if religion will be a principal motivating force in someone's time on the Court. Data from the lower court level suggests identity as a member of the religious right can affect decision-making on a fairly narrow subset of issues—capital punishment, gender discrimination, and obscenity. But the Supreme Court is small, and ideology and judicial philosophy play a very big role in guiding decision-making."

Stacey Hunter Hecht, professor of political science, Bethel University

"It's far less significant or important that there be a Protestant on the Court or a Catholic or something else, just by the identity of their ecclesiastical connections. I also think it's not very important there be someone on the court who is old, young, black, white, bald or not. It comes down to judicial philosophy, and at that point the question will be how well-formed and how critically thoughtful will a justice be in dealing with the responsibility they have."

James Skillen, senior fellow, Center for Public Justice

"The category of Protestant is so large that it's really not a meaningful barometer of judicial philosophy, just as the word Catholic is so large that it's not a barometer. Judicial philosophy is what's most significant. It's much more helpful to know whether a candidate for the Supreme Court believes the Constitution should be interpreted as it was written, or whether new meaning can be ascribed to the existing Constitution."

Tom Minnery, senior vice president, CitizenLink (formerly Focus on the Family Action)

What I find disturbing is that essentially what's being said is 'the faith of the judge is less important than his or her judicial principles'.  But what forms those principles, if not faith? Politics? Legal theory? Philosophy? Personality? It's significant that, for example, 'judicial philosophy' seems to trump faith for Mr. Minnery, who is associated with the conservative Christian website CitizenLink.  It seems our American society - even Christians within it - presumes that faith has no real impact in the way people - including judges - attend to their secular professions.  In other words, we've internalized the so-called 'separation of Church and state' to such a degree that faith truly has no real role in the day-to-day lives of Americans.  This is quite different from the perspective of the Catholic Church.  For example, Pope Paul VI, wrote

"While recognizing the autonomy of the reality of politics, Christians who are invited to take up political activity should try to make their choices consistent with the gospel and, in the framework of a legitimate plurality, to give both personal and collective witness to the seriousness of their faith by effective and disinterested service of men."

Pope Paul VI, A Call to Action, 46

Recently, Pope Benedict wrote about the responsibility of the baptized in working to promote the common good and the correct ordering of society:

The direct duty to work for a just ordering of society, on the other hand, is proper to the lay faithful. As citizens of the State, they are called to take part in public life in a personal capacity. So they cannot relinquish their participation “in the many different economic, social, legislative, administrative and cultural areas, which are intended to promote organically and institutionally the common good.”  The mission of the lay faithful is therefore to configure social life correctly, respecting its legitimate autonomy and cooperating with other citizens according to their respective competences and fulfilling their own responsibility.

Deus Caritas Est, 29

If even Christians think it's normal that faith should not play any significant role in the decisions of a justice on the Supreme Court, is this a good thing?  The presumption seems to be that the basis for justice in the U.S. is the Constitution, but the Constitution itself was born out of the aspirations of men of faith, and the Supreme Court justices are constantly being asked to interpret that document.  It would seem to me that the faith of a justice should be a part of that interpretation.

I would welcome comments, particularly from people with a deeper understanding of our jurisprudence system.


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