Religion & Law

I have an op-ed in today's "weekend" edition of the Wall Street Journal called "The  Minority Court" (I didn't pick the title).  Here's a bit . . .

Those who founded our nation would certainly have been surprised by much of what goes on now at the Supreme Court?free-speech cases about online child pornography, search-and-seizure disputes involving thermal-imaging devices, and so on. Even more surprising to them than the Court's work, though, would have been the Court's current makeup. Its nine members include two Jews and six Roman Catholics. And Justice John Paul Stevens, the Court's lone Protestant member, recently announced his plans to step down. . . .

Certainly, the Court's current lineup confirms the long distance traveled since crude and bizarre anti-Catholic polemics and conspiracy theories helped to sink the 1928 presidential campaign of Al Smith, or the days when the unabashedly anti-Semitic Justice James McReynolds refused to speak to his Jewish colleague, Justice Brandeis. More curious than the increasing numbers of Catholics and Jews on the Court is the possible disappearance of Protestants. Diminishing prejudice helps to account for why a country that is 2% Jewish has a Supreme Court with two Jewish justices, but it would not seem to explain why the Court of a nation that is half-Protestant might soon have no Protestants. . . .

Whatever the explanation for the Court's current religious makeup, and for the possible (though certainly temporary) absence of Protestant justices, it should be remembered and emphasized that all judges?Protestants, Catholics, Jews and all the rest?have views, commitments and experiences that shape their thinking and understanding. We should not ask or expect judges to put all this aside when they put on their judicial robes. Instead, we should ask and expect them to work conscientiously in every case to identify not their own preferred outcome but, to the extent possible, the answer that is given by the best reading of relevant legal texts, rules and precedents.