Bayou Calvinist

A Somewhat Eclectic Discussion by a Law Student Concerning All of Today's Major Topics, as well as, a Few Not So Major Topics

Thursday, August 04, 2005

Catholic/Christian Justices

UCLA Law Professor S. Brainbridge discusses whether a judge's religious convictions should: 1) be considered in confirmation of that potential justice and/or 2) disqualify a potential justice.

He clearly states that the answers should be 1) yes and 2) no.

Professor Brainbridge states:

"Even in the "worst" case scenario, Judge Roberts's decisions would be driven by his faith only in a small number of cases. And, in at least some of those, the teachings of the Church may well coincide with moral norms sufficiently widely shared throughout the community and/ or nation to satsfy the social support criterion required of moral norms proposed to be drawn upon in adjudiciation, in which case the analysis above of the use of social norms in adjudication suggests there would be no objection to the judge drawing simultaneously on his faith and consistent more broadly social norms. In the remaining cases where the teachings of the faith cannot be reconciled with the prevailing moral norms of society, which I believe will be few in number, the problem can be managed on a case-by-case basis."

I would tend to agree in this assumption that the vast majority of cases touched on by the Supreme Court would not necessarilly be overwhelmingly influenced by a justice's religious beliefs (by overwhelming I mean, when the law leads the justice to one conclusion and his religion leads him to another--so religious considerations overwhelm the legal). And so I would also agree with Brainbridge's final conclusion that in no way should a justice's Roman Catholicism
nor a justice's Christianity disqualify them for a position on the federal bench.

Professor Brainbridge goes onto state:

"In the end, however, I come down with Garvey and Coney - where a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself. The possibility that a judge (or justice) might have to recuse himself in occasional cases, however, does not strike me as a legitimate reason to deny the judge a seat on the bench."

On this point I disagree. This view, I'm afraid assumes that if one is to base their opinions on religious rather than secular reasoning that their opinions are somehow less deserving of recognition. I understand the fine line which must be walked in order to avoid a theocratic state, but I would only state that if an issue arises upon which legal disagreement is possible and one person makes their final decision based on secular/humanistic reasons and another on beliefs which are in keeping with the Roman Catholic Church, then both justice's should be able to make their opinions affect the nation's jurisprudence. If on the other hand the law cannot be obeyed at the same time one is obeying their religious beliefs, then that person is under a moral perogative to vote against this law. How then does one avoid theocracy? In this case it would be important to determine whether that person's religious views are keeping with the views of society as a whole. If they are not, then a case has been made for impeaching the justice. Granted this is perhaps unfair to a justice of a minortiy faith, but life is unfair and their must be some higher standard by which society is governed and each society in some ways determined by that society.

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