What’s Wrong With Secular Judges? It Isn’t a Matter of Faith
By James G. Poulos
Posted On October 17, 2005

ONE OF THE SEVERAL ANGLES IN on the uncomfortable farce which has been the nomination of Harriet Miers is the imbroglio over religion and the Court. What has always been true has now been made publicly clear: the “religious right” has two constituencies—and the appreciation of religiosity without regard to its secular consequences is restricted to but one of them. Whether or not Harriet Miers is an evangelical Christian is of little consequence to those who proceed to ask whether or not this influences her juridical thinking along strict constructionist lines. And many a rightist disappointed in the Miers nomination would prefer a secular judge who thinks, when it comes to legal theory, like Scalia over a born-again judge cut jurisprudentially from Justice Kennedy’s cloth.

Moreover, a liberal Christian, rarer though they be, can rule in accordance with his or her faith in a way that would outrage conservative constitutionalists. The link between faith and strict construction is largely coincidental today; belief in God helps encourage the understanding that, in becoming a Supreme Court Justice, one is not deified. But one needn’t be a leftist to prefer Sandra Day to Opus Dei. Devout Christians have since the early ‘80s aligned with the Republican party, but nothing inherent in his jurisprudence prevents an originalist or strict constructionist from thinking that the interference of faith with reason in a colleague’s mind does harm to the work of the Court.

CHRISTOPHER HITCHENS leaves open the possibility of such philosophical configurations. Taking the secular approach to legal interpretation, in and of itself, as a positive good, Hitchens hears Catholic Scalia to substitute the supremacy of the Constitution with his own spiritual declensions when uttering certain phrases: “the principle of laws being ordained by God is the foundation of the laws of this state and the foundation of our legal system”…“the moral order is ordained by God […] that's the basis for the Declaration of Independence […].”

Whether a Supreme Court Justice ought to be going around telling those with ears to hear they should be “fools for Christ,” or whether the sort of fellow who says such things is to be preferred for a seat on the Court, are, though valid questions, ones which also defy easy answers in the absence of a demonstrated pattern of conduct on “big” constitutional cases. In over four score years of Supreme Court nominations, among Republican presidents only Reagan avoided eventual buyer’s remorse. Even now, as is the inverse case, religion does not create an automatic political cognate. And historically the standard revisionists’ line about the Founding Fathers’ variously deist, agnostic, or heathen beliefs has only taken us so far. Hitchens is bothered by Scalia’s take on the Declaration, but Jefferson’s take on the inalienable rights—that they have been endowed a Creator—is not foundational to the American legal ethos only if we agree that the Creator isn’t God.

The secular response is that Scalia’s God is certainly not Jefferson’s God, nor necessarily anyone else’s. But secularists looking to make the Declaration a non-Christian touchstone for American law have a higher hurdle to clear than the Jefferson Bible: anyone serious about the venerable maxim lex, rex must admit that the Declaration of Independence had no force of law in 1776 and is still not a legal document today.

A looser theme, however, is at play in the mind of Justice O’Connor as her Honor writes, “we do not count heads when deciding to uphold the First Amendment.” Obviously we do not count souls, either, in the application of our laws, but Hitchens’ point is that counting of either type among those who apply the laws themselves is entirely different. If it is, then tally-ho as we tally “quite a bloc” of Catholics, including Thomas as well as Kennedy (“strong in the faith” though Focus on the Family’s Dr. James C. Dobson thinks him “the most dangerous man in America.”). The counting itself, in fact, is not the problem: it is the judgment imposed on the judges as a result, and here we encounter the familiar territory of the political. In Washington—even among the Nine Chairs—everyone counts (that is, tallies), because in our political condition religiosity and secularism count—even symbolically. In the realm of the 5-4 split, the margin of victory is a single soul.

SO LET THEM, LET US, COUNT. Hitchens’ insistence that a Justice ought to put the integrity and reason of the Constitution itself first and foremost is in fact right on the mark. But the track record of humanists on the Supreme Court is a drumbeat of disrespect for the confines of strict construction. Champions of the Warren and Berger courts will insist that segregation and the outlaw of birth control, to provide two examples, are laws for which we must have no respect—but that imperative is no more legal or less grounded in moral judgment than that by which a Christian might read into the Constitution a ban on abortion or capital punishment.

The Roberts and Miers nominations reflect the extent to which the sort of secular judges Hitchens reasons into being tend not to appear on the national scene. Instead of coolly reasoning constitutionalists, non-religious jurisprudes have in modern times seen their objective largely as the creation of rights and the destruction of wrongs. (Odd there should be so much birth and death in a supposedly “living” Constitution.) Fortunately such Justices have since the 1950s done more harm to the rule of law than to the lives of American citizens. Yet Brown v. Board of Education, as even the most sympathetic law student should know, makes noble policy but is fraudulent as a legal document.

Today’s conservative religious Justices have yet to perpetrate such an embarrassment upon the rule of law. Of course, they too have yet to win a decisive victory on a burning moral issue. But even a reversal of Planned Parenthood v. Casey and the repudiation of Roe (which Casey made rather a dead letter) would simply draw tighter the Constitutional ambit. The strictest of constructionists may risk dullness, heartlessness, or irrelevance, but they will never risk bursting the law by overinflation.

OF COURSE, THE REBUTTAL HERE is that we’re better off risking the integrity of our laws than the integrity of our humanity. This conflict—timeworn already when The Merchant of Venice was staged—will not vanish in a puff of confirmation-hearings. Republicans, conservatives, and other enthusiasts of the rule of law have nothing to fear—per se—about secular judges. We can all breathe a sigh of relief on the day that American political and legal elites can respect the primacy of the founding document, be they strictly religious or not. That would, indeed, mark a turning back of the clock—to an era when laws were interpreted in accordance with the Constitution, and not the other way around.

James Poulos is an attorney and writer living in Washington, D.C.

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