THE SUPREME COURT AND VIEWS OF REALITY
Members of the Supreme Court who say their religious views do not affect their interpretation of the constitution are lying, are minimally committed to their religion, or are too self-deluded to qualify for the objectivity required of a Supreme Court seat.
Assumed Interpretation Posture
When justices say they are originalists or living constitutionalists they are really confessing that their view of reality is closed or open to new truth and new interpretation. If an originalist, they are closed. If a living constitutionalist, they are open. These postures radically effect constitutional interpretation. The difference is in seeing through the eyes of the past or the eyes of the present. One’s religious beliefs can play a critical role in shaping this vision. Ways of seeing determine the lifestyle and destiny of both the individual and the nation. And these justices are the legal eyes of the nation. Legal eyes are not just about law. In America they are about the democratic principles and the relationship moralities that undergird the interpretation of law. Legal eyes produce legalize.
Assumed Religious Posture
A justice’s level of commitment to their religion will always affect their constitutional interpretations. Religion determines belief and belief determines view of reality and view of reality determines moral and social vision – both personal and professional.
Here is an example. Many of the present conservatives on the court affirm Roman Catholic beliefs. A full commitment to this religion assumes total obedience to a supreme earthly despot called a Pope who dictates what a good Catholic believes. This invites the justice to validate both despotism and the voice of the despot. In addition, a full commitment assumes belief in a supreme set of scriptures which trumps the constitution in authority. This invites the justice to validate religious belief as superior to democratic tenet and interpret accordingly.
It is the measure of commitment to belief that will define the strength of its influence on decision-making. For some people the commitment is all consuming and every decision they make will carry the influence of this devotion. But others grow up in a religion and hold to its beliefs provisionally, rarely allowing any real strength of influence in their lifestyle. When a justice is asked if their religious belief will influence their interpretations and the answer is “no” they are saying they have no important commitment to the beliefs of that religion. However, the history of their decision-making will reveal the truth – are they telling truth, are they lying, or are they self-deluded. There are no other valid conclusions.
There is a posture that makes it possible to avoid the conflict between supreme religious commitment and supreme political commitment. It is called compartmentalization – erecting an artificial barrier between the two so they can be lived, supposedly, without conflicting influence. But such is not only impossible it is an act of willful hypocrisy which suggests an unprincipled and untrustworthy character which is not a desirable trait in a Supreme Court justice.
The bottom line is that belief, whatever its source, cannot be separated from constitutional interpretation. Otherwise, there would be no reason for vetting and questioning justices prior to and during nomination. And while such nominations and elections may have nothing to do with religious bias, they are always compelled by views of reality that drive decision-making. After all, why do we have more than one political party? And why is there inevitably a conflicting drama over the selection of a Supreme Court justice? And why is their selection always determined by which political party is in power?
An Example
In the 2000 presidential election the outcome of the Florida vote would be decisive as to whether the new president would be George Bush or Al Gore. Bush had a slight lead but it became clear that voting machines had missed tabulating 61,000 ballots. Counting these ballots would determine the winner. The Florida Supreme Court ordered a recount but the Busch contingency appealed to the United States Supreme Court to prohibit the recount. This appeal indicated that the Bush team knew the potential outcome did not favor their party winning and was more invested in winning than they were invested in a democratic outcome.
The tactics of the Supreme Court indicate that its majority was composed of a group of conservative judges who were determined to find a way to block the recount and give the presidency to George Bush. This posture indicated that they had no interest in upholding law or the constitution. This group devised numerous objections to the recount that were proposed and voted down by the court majority – including the absurdity that a recount would cause Bush “irreparable harm”. Eventually, they came up with an objection that the majority could agree on and denied the recount. Bush was declared the winner. It was later revealed that, had the recount been permitted, Gore would have become president. Why would the Bush team have appealed to the Supreme Court to make such a decision? The answer is: They had already counted the eggs in the basket – the eggs being the Supreme Court justices who had already declared their allegiance to a particular election outcome.
This was a clear example of a group of justices (Rehnquist, O’Connor, Scalia, Kennedy, Thomas) who had pre-determined a decision based on their conservative political belief system and had to frantically search to find its legal justification. Perhaps even more confirming, for the Supreme Court to make such a decision went against the traditional conservative political bias to favor state’s rights over federal jurisdiction. That this decision violated that tradition is not without significance either in its making or in its outcome.
The end result of the decision was the alteration of American destiny. Addressing climate change was put on hold. Bush guided America into two unprincipled sustained wars that have cost thousands of lives, devastated cultures, and indebted the citizenry trillions of dollars. It further empowered the Taliban terrorists and Muslim jihadists both in membership and money, and it continues pouring wealth into America’s economic imperialist war industry. At this moment, that Middle East is no better off than it was before these wars and America has betrayed its strongest historical ally, the Kurds.
However, the most harmful potential result of this belief bias fiasco is that a precedent was set for the US Supreme Court to interfere with presidential elections based on the belief biases of its members – irrespective of lawful state jurisdiction.
The Oxymoron
Democracy is grounded in an oxymoron – a sharp edged contradiction. The state is not allowed to impose a religion on the citizenry while the citizenry is allowed to impose their religion on the state. It is generally called freedom of speech. And this imposition is often done with both denial and zeal. There is no resolution to this oxymoron except that of a commitment to democracy above all other considerations by Supreme Court justices. It is an issue of personal integrity.
Belief Change
In my experience, if people have strong belief, they will only change such because they encounter a threatening challenge. I was once minister in a town that was dominated by Catholic institutions and belief. It was a culture strongly opposed to abortion. But the issue was still debated. I met no one who changed their belief because of this debate. However, I met numerous women who changed their belief when confronted with an unwanted pregnancy.
This suggests that strong beliefs can be altered by a challenging and contending personal experience but generally not short of such.
Ignoring Democratic Tenets
There are three primary tenets of democracy that determine both its existence and empowerment as a form of governance. These are a commitment to:
- The worth equality of the citizenry.
- The common good of the citizenry.
- The voting rule of the citizenry.
How these tenets are both legalized and institutionalized into reality and strength of application determine the extent to which a democracy exists.
Unfortunately, in the pitted battle between Originalism and Living Constitutionalism in the interpretation of the constitution some justices seem to pay scant attention to democratic tenets. These tenets demand two things:
- That textualism’s outcome be applied to present day social living.
- That citizenry worth equality, achieving citizenry common good, and protecting the citizenry’s right to vote be the criteria for application.
For true democrats, their entire belief system will accord with democratic tenet. Otherwise, they show themselves to be something other than democratic.
Democratic Nobility
Since the tenets of democracy are an apex expression of the human desire to participate in a community of nobility, this desire should be consistently applied in the decisions of the qualified Supreme Court justice. And in this respect, the true nature of a justice’s personal view of reality will be revealed by vote.
Robert
Robert T. Latham
mythinglink.com
PS: Thomas, Roberts, Barret, Kavanaugh, Alito, and Sotomayor are Catholic with Gorsuch a Catholic become Episcopalian. Breyer and Kagan are Jewish. Roberts, Kavanaugh, and Barrett all worked for Republicans during the 2000 ballot issue in Florida.
Regrettably, we may be experiencing the twilight of democracy, as both houses of Congress seem more interested in scoring points than in truth and justice, all the more reason for members of the Supreme Court to be committed to promoting the “three primary tenets of democracy.” Regardless of political identity or religious affiliation, this commitment, I believe, must be undergirded by objectivity and a desire for the common good. As citizen voters and participants, we also must reclaim our role as movers and shakers with writing “the rest of the story.”