Given the New Yorker’s softness on faith, I’m heartened—and very surprised—to see that the magazine has published Lawrence Krauss’s has third godless column, “Put an atheist on the Supreme Court.” (Krauss was surprised too, emailing that “Maybe there is a god.” Note to religionists: he was joking!). At any rate, go look at it; I’ll give a short excerpt.
First, though, Krauss notes that 3% of Americans declare themselves atheists, and another 4% agnostic. In effect, nonbelievers make up 7% of all Americans, while, according to Wikipedia, between 1.7% and 2.6% of Americans are Jews. Yet there have been eight Jewish Supreme Court justices (let me name them, since Americans will recognize most of them: Louis Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, and, still serving, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan). I’m unaware of a single overtly atheist Supreme Court justice.
We thus have a gross underrepresentation of atheists on the Court, but of course there’s good reason for that. Imagine an atheist justice being confirmed by today’s Senate! Antonin Scalia claimed before he died that there was a gross underrepresentation of evangelical Christians and Protestants on today’s court (i.e., none), but Krauss says that we’re also missing nonbelievers.
So Krauss, while offering great arguments for an atheist justice, also recognizes what he’s up against. His suggestion will of course be ignored, but what’s good is that he’s able to even offer it in one of the country’s most respectable magazines.
From a judicial perspective, an atheist Justice would be an asset. In controversial cases about same-sex marriage, say, or access to abortion or birth control, he or she would be less likely to get mired in religion-based moral quandaries. Scalia himself often got sidetracked in this way: he framed his objections to laws protecting L.G.B.T. rights in a moral, rather than a legal-rights, framework. In his dissent, in 2003, in Lawrence v. Texas—a case that challenged a Texas law criminalizing gay sex—Scalia wrote that those who wanted to limit the rights of gay people to be teachers or scoutmasters were merely “protecting themselves and their families from a lifestyle they believe to be immoral and destructive.” To him, religion-based moral objections seemed to deserve more weight than either factual considerations (homosexuality is not destructive) or rights-based concerns (gay people’s rights must be protected). Indeed, Scalia’s meditation on the Court’s lack of religious diversity was part of a larger argument that the Court’s decision on same-sex marriage did not reflect prevailing religious and moral values. An atheist Justice, by contrast, would have different intellectual habits. I suspect that he or she would be more likely to focus on reason and empirical evidence.
In addition, the appointment of an atheist Justice would send a meaningful message: it would affirm that legal arguments are secular, and that they are based on a secular document, the Constitution, which was written during the founding of a secular democracy. Such an appointment would also help counter the perceived connection between atheism and lawlessness and immorality.
There’s more, including a ringing peroration, but I’ll let you read that for yourself.
May I suggest Richard Posner for the vacancy? He’s more or less a centrist, is the most cited legal scholar in America, and, as far as I know, has no belief in gods. And he has a cat, too. There are others more liberal that I’d like, but their chance of confirmation is zero.
Or perhaps a Muslim. Maybe a Black Muslim woman.
I am wondering whether the black gown would go over or under the burqa? Of course, it would be even more complicated in the UK with a load of ermine and a full wig to take account of (except strangely enough for the Supreme Court (formerly the Judicial CommitteE of the House of Lords) where dress is (or at least, was, suit / dress and carpet slippers.)
I agree that an avowed secular humanist would be a good gesture, but I also think it’s important to add that for the most part, the Jewish justices generally rule in a manner consistent with atheist sensibilities. Most constitutional cases involving religious intrusion into personal and legal matters; overtly or subversively; are coming from the Christian Right, and the Jewish justices have almost always ruled in favor of strict separation, as it also affords the greatest protection for religious minorities as well.
I like that idea.
I’d wish someone with the needed formal qualification and otherwise like Ayaan Hirsi Ali.
Lawrence is far too nice in his article. Suggesting a bit of religious prejudice in the judge’s deliberation? How about turning to the bible before making a decision on anything and probably needed a very thin library of legal books.
I’d love to see the results of a mass blood pressure reading in the US if this hits the National News.☺
And Preparation H sales.
I think no judge should associate him or herself with a religion or rely on religious principles, any whiff of religion in judgments should disqualify a judge. Otherwise you are not better than the Sharia judges. It is a bit like science. I know a scientist who is deeply religious, but you will not find this out from his papers in Nature and other top journals.
I think that you are right in principle, but for the time being, there is no reliable mechanism to prevent a judge from being influenced by his religion, so the next best thing is to know and balance his religious convictions. Maybe the most relevant comparison to scientific publishing is not with the faith of scientists but with their eventual conflict of interests. The best is to have none, the next best is to have and disclose.
Posner, at 77, is too old to be nominated for a Supreme Court seat. The tendency for some time has been to nominate younger people to allow a president to extend his influence beyond his term of office.
A shame if so, for he seems like a great choice. From Wp:
“Wisconsin’s Attorney General cited tradition as a reason for maintaining the ban [on same-sex marriage], prompting Posner to note that: “It was tradition to not allow blacks and whites to marry – a tradition that got swept away.” Posner claimed that the same-sex marriage bans were both “a tradition of hate” and “savage discrimination”.”
“A study published by Fred Shapiro in the University of Chicago’s The Journal of Legal Studies found Posner is the most-cited legal scholar of all time by a considerable margin, as Posner’s work has generated 7,981 cites compared to the runner-up Ronald Dworkin’s 4,488 cites.”
He’s also a Senior Lecturer at the University of Chicago Law School. I wonder if his building has a leaky copper roof …
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Maybe a good choice, but not a great choice. He’s a bit weak on freedom of speech, for example.
What do you hold to be the maximum age?
Krauss’s article seems to end just before he got to his plan for getting such a nominee past the Senate.
I don’t know anything about the private beliefs of any of the eight justices, but isn’t it possible that, at the least, one or more of the three who identify as Jews are, in fact, unbelievers? As you well know, “Jewish” is as much an ethnic identification in contemporary American society as it is a religious one. In any case, nothing that I am aware of suggests that their religious background is influencing their jurisprudence–which is all we ought to care about.
Is there anything that you are aware of that suggests that their religious background is not influencing their jurisprudence?
I am not sure what to make of your “all we ought to care about” statement. It is certain, no question, that any religious beliefs that any of the justices may hold do indeed have some affect on the decisions they make. Given the example of Scalia what good reason is there to suppose that it is likely that other justices don’t allow their religious beliefs to influence their jurisprudence? The question is what affect and how influential.
In any case, Krauss said he would like to see a “declared atheist” not a closeted atheist that no one knows is an atheist. Would you object to a declared atheist being appointed to the SC? Why? Do you object to Krauss openly suggesting it? Why?
I think you’re putting words into jerryadler’s mouth, Darrelle. I didn’t read him as saying that he objected to Krauss’s proposal, only that there’s a fair chance that we already have non-believers on the court.
(I hope he was limiting his last sentence to just the Jews, though, as we certainly know at least one of the Catholic justices was hugely affected by his religion.)
I could certainly be reading him wrong, that is why I was asking questions. I don’t think I was putting words in his mouth.
Sorry for wording that poorly!
So far, at least, it doesn’t look as if jerry’s going to come back and clear things up for us.
No need to apologize Diane, it was worded just fine. I took no offense.
I know things like tone that give much information in addition to mere words in real life conversations often don’t come across well in written website comments like this. The questions I asked jerryadler were not intended to be rhetorical or sarcastic, but straight forward questions to try and find out if my interpretation of his position based on his first comment was accurate.
The couple of things I commented on directly seemed fairly unambiguous to me, though I could of course be wrong on those too.
Thanks, Darrelle.
And it’s looking like we may never resolve this crucial mystery… 😀
I’d be happy with someone who just strongly endorsed separation of church and state.
in other words…someone appointed by a democrat
Yes, although one might slip in under a Republican, as long as he lied.
Well, there’s the judge who sent the Dover, PA “intelligent design” guys to the illegal side … (A GW Bush nominee, no?)
As much as I like Krauss’s piece as rhetoric, I dislike the treatment of the Supreme Court as a reflection of identity politics. Sometimes people act like there’s a black seat, a Hispanic seat, a woman’s seat, a Jewish seat, and so on. I wouldn’t be at all surprised to see someone calling for a Catholic seat after Scalia’s death.
Oh, the Catholics already have far too many seats!
Thomas
Roberts
Alito
Sotomayor
Until Scalia died, they were a majority.
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I agree with you.
Anthony Kennedy, too.
We should have a rationalist seat.
Consider the case of Clarence Thomas. He was nominated by George H. W. Bush to fill the seat of Thurgood Marshall, which was widely considered to be a “black” seat. How did that work out?
Bush the First’s appointment of Clarence Thomas was one of the most cynical political moves in recent history. He might as well have said: “You people want a black justice to replace Thurgood? I’ll give you the kind of black justice that you won’t ever ask for one again.” He even tried to claim with a straight face that Thomas was the most-qualified jurist in the country for the seat.
Thomas, despite his odd personality quirks, has actually turned out to be a much more competent judge than many of us expected. Not that it makes me despise his jurisprudence any less.
Or consider the ridiculous, disastrous nomination of Harriet Miers by George W. Bush, to replace Sandra Day O’Connor, a “woman’s” seat.
Just curious, what are his quirks beyond perhaps his never posing questions in court?
There is no end to having to hear about this from the popinjay press. Perhaps it is a quirk. It may also be that this supposed quirk is made more obvious by its contrast with what I view as the significantly more irksome quirk of certain justices repeatedly interrupting attorneys. It may be that it is difficult for Thomas (or any other justice not predisposed to egregious interrupting) to get a word in edge-wise. (Though maybe some attorneys deserve it, they themselves having badgered/borderline abused their share of witnesses over the years. It surely must have stressed out Ted Cruz to not be able to yammer back at justices)
Thomas’s silence on the bench is frequently attributed to his having grown up on the Georgia’s remote sea islands and having been embarrassed because he spoke in the distinctive local Geechee/Gulah dialect when he first started formal schooling on the mainland.
Also, in his memoir and public addresses, Thomas comes off as roiling with resentment, despite all the success he has enjoyed in his career. A large part of this resentment stems from his having felt belittled at Yale as an affirmative-action admission (which he was, though he now vehemently opposes affirmative action for others). Another part of this resentment stems from his brutal confirmation hearing once Anita Hill’s allegations of sexual improprieties on his part surfaced at the last minute. I’m sure some of it also stems from his strained relationship with the black community at large.
On the other hand, Thomas is said to be warm and gregarious with his law clerks and other staff in his chambers and the Supreme Court building.
Other quirkiness in Thomas’s personality was on display during his own testimony at his confirmation hearing.
Hear, hear.
To be fair, I count most, if not all, Jews as pragmatic atheists.
Which reminds me:
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Good one, but a long “shaggy rabbi” way to go to get there. 🙂
Yeah. I should have looked longer for a shorter one.
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LOL!
It would be great if an atheist was appointed to the Supreme Court, but I’m afraid that reserving a seat for one would be a violation of the No Religious Test Clause of the Constitution. Personally, I’d settle for someone who understood and respected the very first provision of the First Amendment of our Bill of Rights – the separation of church and state.
I agree, personal beliefs should be outside of the equation. However, you need a framework or infrastructure that allows this, as in France.
The Religious Test clause in Article VI addresses prohibitions on a person being seated in any public office due to religion. It doesn’t prevent a president from taking religion into consideration in making an appointment — anymore than it prohibits a voter from taking religion into consideration when casting a ballot. (I suspect you’d find that most ambassadors to the Vatican have been Catholic.)
There was long an informal “Jewish seat” on the Supreme Court: Cardozo was appointed shortly before Brandies retired. And Cardozo’s seat was then passed down from him to Frankfurter to Goldberg to Fortas, and is now held by Justice Breyer. (The only goy to interrupt this line of descent was Justice Harry Blackmun, who held the seat between Fortas and Breyer.)
I’m not saying this was good policy, just that it was no accident.
“… I’d settle for someone who understood and respected the very first provision of the First Amendment of our Bill of Rights – the separation of church and state.”
Ahem. The words “separation of church and state” do not appear in the Constitution. I assume you are referring to the establishment clause?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
I’m unaware of any religious affiliation on the part of William O. Douglas — although his father was a Presbyterian minister, and despite his unfortunate obiter dictum that “[w]e are a religious people whose institutions presuppose a Supreme Being” in Zorach v. Clauson. Douglas had the vibe of an atheist; most of his Establishment Clause jurisprudence bespoke a thinly veiled antipathy toward organized religion.
(I also suspect that the three Jews currently sitting on the Court are more secular than religious, and that one or two of the five remaining Catholics may be lapsed.)
I agree with Krauss that Obama should appoint an atheist — just not an out atheist, at least if he hopes to prevail in his great Last Stand against an intractable congress in the coming confirmation battle.
Keep in mind, too, that there hasn’t been a Proddie on the Court since Justice Stevens called it a career in 2010 — the first Protestant-free bench in the High Court’s history. Stevens was also the last justice to have served in the US armed forces.
Those may be additional considerations Obama takes into account in forming his Napoleonic battle plan to get a nominee confirmed.
At this point, I think it’s more about inflicting maximum political damage on the Republicans than getting someone confirmed, although that could change. Forcing a hearing, at least, is likely. Forcing a vote is possible. Forcing a filibuster or a nonconfirmation on an eminently qualified, moderate, popular candidate would be a very good result, as would forcing the Republicans to flip/flop and vote for confirmation. It’s no-lose for Obama and the Democrats if played right.
I think a lot will depend upon what kind of pressure the public and respected public figures bring to bear and how effectively the senate’s Republican leadership can whip the troops into line.
Note that retired Reagan-appointee Sandra Day O’Connor — who was heard by her dinner companions to complain bitterly when Gore was initially announced as the victor over Bush in 2008, because she was ready to retire and wanted a Republican to name her successor — has come out in favor of the senate proceeding expeditiously on Obama’s nominee. If the other two living retired justices, David Souter and J.P. Stevens (both of whom were also Republican appointees), do the same, it might carry a lot of weight.
As long as religion remains an ingredient in this (law and politics) discussion, any discussion is a waste of time. If you say no to Sharia law, you should also reject any religious inference, protestant, catholic, evangelical, Jewish, Pastafarianism, Voodoo, etc. Europe is also to blame, you have “Christian” political parties in Belgium, the Netherlands, and Germany, and the UK is formally a theocracy. A long way to go…
And yet not only is religion not a factor in appointing any of the UK’S Supreme Court judges, it is impossible to tell from their CVs what religion, if any, they espouse. Or from their judgements, come to that.
This is a really rational and convincing argument for an atheist on the SCOTUS.
I’m 46…could this happen in my lifetime? There may be hope!
Listen to Terri Gross’ interview of Susan Jacoby on Fresh Air.
Except for her lack of legal training she’d be a perfect replacement for Scalia.
Does the President have to appoint a lawyer?
An atheist wouldn’t stand a prayer.
I’d just like any judge that isn’t an activist. As far as I can tell, Ginsberg is just as bad as Scalia in that aspect. The fact that Ginsberg rules ‘in my favor’ more often is no more to the point than the fact that the KKK has no problem with white people.
While I do feel there is a certain amount of room for interpretation (to avoid the legal equivalent of software bugs, if nothing else), the courts are primarily for the arbitration of laws, not a way for unelected life-time appointees to make laws.
I’d want to know more about the Richard Posner of today, if he’s perhaps shifted his thinking on some of what’s reported on Wiki:
” Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because despite his “obvious brilliance,” he would be criticized for his occasionally “outrageous conclusions,” such as his contention “that the rule of law is an accidental and dispensable element of legal ideology,” his argument that buying and selling children on the free market would lead to better outcomes than the present situation, government-regulated adoption, and his support for the legalization of marijuana and LSD ”
I have problems with the ‘buying and selling children’ part … I would want to know what he meant/means by this.
How to get a liberal judge approved by the Republican Congress:
Make it clear that the first nomination will be the most conservative candidate that the Repubs will see. If rejected, keep sending progressively liberal candidates until one is approved.
The public will see only that the Repubs are acting selfishly partisan if they persist in rejecting qualified judges. (After all, Republican presidents got their conservative justices, and balance is needed on the court. Playing politics with justice is unAmerican, after all.)