Posted on by Mark Movsesian

Justice Thomas on Faith and the Court

In the New York Times, Adam Liptak reports on a recent appearance by Justice Clarence Thomas at the National Archives. In an interview conducted there by Yale law professor Akhil Amar, Thomas reflected, among other things, on the religious makeup of the Court and on his own faith. About the former, Thomas downplayed the importance of the fact that, for the first time in history, the Court contains no Protestants. (The current lineup is six Catholics, including Thomas himself, and three Jews). “We’re all from the Ivy League,” he observed. “That seems to be more relevant than what faith we are.” About the latter, he said that he grew up in a religious environment and still believed in God. “And I thank God I believe in God,” he said —  a theologically interesting proposition, itself — “or I would probably be enormously angry right now.”

I always feel a little uncomfortable focusing on the religious identity of the Justices.  It’s naive, I know, to think that Presidents select Justices without regard to such things – for years, there were “Catholic” and “Jewish” seats on the Court – but, in a religiously diverse society, focusing on the Justices’ religion can easily lead to recriminations. (“He’s only ruling that way because he’s Jewish”).  Perhaps that’s why Justice Thomas changed the subject to education. Besides, if the Justices are anything like other Americans, religious identity in itself suggests little about what results they would favor. Religion is an important predictor in American politics, influencing the policies and candidates people support. But it is the degree of religiosity, not the particular religion, that seems to matter. So, the interesting question would be, “How often does a Justice attend religious services?” not “To what religion does the Justice belong?” And that’s assuming that the Justices don’t filter their religious commitments when deciding cases.

To my mind, though, Justice Thomas’s second observation is the really interesting one, at least on a personal level. About what, exactly, is he so bitter that only divine grace can keep him from being “enormously angry?” You’d think that being a Supreme Court Justice would soothe most public annoyances. Liptak reminds readers, by way of explanation, of Thomas’s infamous confirmation hearings, when Thomas had to defend himself against allegations of sexual harassment. But that was more than 20 years ago. Maybe it’s something else the Justice addressed in the interview, the continuing criticisms that he doesn’t care about his African-American identity. Whatever it is, the hurt is apparently very deep.

Posted on by ddrakeman

Things I Thought I Knew — Part 1: Supreme Court Facts

When I was teaching an undergraduate research class on the Constitution, I would sometimes give the students this assignment:  Find a Supreme Court opinion making a constitutional argument that relies on a factual statement.  Then go do the research and see if the facts that are necessary to the argument are accurately stated.  At the outset, I thought the Court’s batting average would be pretty high, but that wasn’t necessarily the case.

Take, for example, the Everson case where Justice Rutledge read the establishment clause in light of James Madison’s Memorial and Remonstrance because of Madison’s “authorship” of the religion clauses and the fact that the First Amendment was the “direct culmination” of the struggle for religious freedom in Virginia.

Does the documentary record support Rutledge’s factual claims about the religion clauses?  The answer, at least in my view, is somewhere between “no” and “not really.”  But this isn’t just an academic research exercise or a chance to say, “Gotcha.”  It’s a question about what makes a persuasive constitutional argument.

This what-are-the-real-facts issue might seem to be narrowly focused on originalist arguments, since they need to cite the historical record showing the Constitution’s original meaning (whether they are “Old” Originalist arguments focused on the framers or “New” Originalist ones about the “public meaning” of the text).  But even non-originalist justices sometimes rely on economics, sociology, psychology and other academic fields.  In those cases, we can ask whether the justices are fairly representing the state of scholarship, or are they engaging in a bit of “law office social science.”

So what if the Court is wrong, or if, perhaps, it over-interprets a bit?  That’s a deeper question, but I tend to side with the distinguished Princeton professor, Edward Corwin, who said (in 1951) in connection with the Supreme Court’s landmark church-state cases, “the Court has the right to make history [but] it has no right to make it up.

Don Drakeman

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Jacobs, “Reason, Religion, and Natural Law: From Plato to Spinoza”

This month, Oxford University Press published Reason, Religion, and Natural Law: From Plato to Spinoza (OUP Sept. 2012) by Jonathan A. Jacobs (Institute for Criminal Justice Ethics). The publisher’s description follows.

This edited volume examines the realizations between theological considerations and natural law theorizing, from Plato to Spinoza.

Theological considerations have long had a pronounced role in Catholic natural law theories, but have not been as thoroughly examined from a wider perspective. The contributors to this volume take a more inclusive view of the relation between conceptions of natural law and theistic claims and principles. They do not jointly defend one particular thematic claim, but articulate diverse ways in which natural law has both been understood and related to theistic claims.

In addition to exploring Plato and the Stoics, the volume also looks at medieval Jewish thought, the thought of Aquinas, Scotus, and Ockham, and the ways in which Spinoza’s thought includes resonances of earlier views and intimations of later developments. Taken as a whole, these essays enlarge the scope of the discussion of natural law through study of how the naturalness of natural law has often been related to theses about the divine. The latter are often crucial elements of natural law theorizing, having an integral role in accounting for the metaethical status and ethical bindingness of natural law. At the same time, the question of the relation between natural law and God-and the relation between natural law and divine command-has been addressed in a multiplicity of ways by key figures throughout the history of natural law theorizing, and these essays accord them the explanatory significance they deserve.