It’s certainly true that the supreme court is not guaranteed to always make the right decisions. I can think of several instances in which they did stupidly wrong things. But the elected members of the other two branches of our government screw up a fair amount too. The fact that the supreme court justices hold their seats for life means that they are able to do things that the other branches can’t. And if they have the power to do something important (like integrating public schools) and choose not to because the constitution doesn’t tell them they should, if they refuse to do what they know is right because of what a few dead white men did or didn’t write centuries ago, then I say they are cowards unworthy of the robes they wear. The problem with a supreme court that restricts itself to what a document says (whether that is understood to be original historical meaning or not) is that it creates a disconnect between the decisions the court makes and the effects of those decisions on real people. And that disconnect can result in the court making bad decisions as often as good ones. It defeats the point of having a supreme court in the first place. A court that merely interprets a document makes its decisions totally blind to the effects of those decisions, and that is unacceptable to me.

We can see the legal stupidity that results from courts pretending not to make policy if we look at the various creationism cases. In every case, creationism looses only because it is religious. It doesn’t matter whether it is good science or not. It just matters whether we can show that the other guys are motivated by their religious beliefs. We’ve won on that in the past because the creationists have always been really stupid and left obvious signs of the connection between their “science” and religion. But what happens if a creationist comes along who is smart enough not to connect his version of creationism to religion? I know, it’s not very likely, but it could happen. Based on the way the law sits now it looks like he would win. What we need are courts that are willing to prohibit the teaching of creationism because it is bad science. We need the law to reflect the fact that the religiousness of creationism is not the reason it shouldn’t be taught. And there is no basis in the constitution for doing that, and there is no way a legislature will ever do it.

Here’s the big question: is segregation wrong because the 14th amendment forbids it, or do we make the 14th amendment forbid it because it is wrong? If the former, then the constitution loses all moral authority. Some of it is right and some of it is wrong, just like any other document written by men. There’s no reason we should care what it says. We aren’t slaves to men who died centuries ago. If the later, then you are admitting that the court is in the policy making business.

To put this in more contemporary terms, if we are to go with any reasonable interpretation of the constitution, then justice Scalia is absolutely right when he says to homosexuals “If you want your rights protected, if you want to not lose your job because of your sexual orientation, if you want to not be thrown in jail because of who you love, you’ve come to the wrong place. You should walk down the street and ask congress, because there is nothing in the constitution that protects you.” And if that is what the constitution says, then I say to hell with the constitution.

I’m not sure I understand what you think the court is supposed to do. You don’t think it should go with what was intended by the people who wrote, passed, and ratified the document. You don’t think it should make the best policy decision it can. What else is there?

Thus conservative Catholics often support laissez-faire capitalism, capital punishment, and the wars in Afghanistan and Iraq. All things the Church has stood against. They also tend to side with creationists (even though the Church has no problems with evolution), and some seem to express theological views closer to evangelical conservatives than Catholicism. Erik Prince, CEO of Blackwater (now Xe) and Catholic convert, sat on a board where all members had to swear an oath that the Bible was the only true, unerring Word of God. That is getting close to heresy for a Catholic.

Meanwhile, liberal Catholics are often pro-choice, pro-birth control, and many are tolerant of gay marriage, all positions in opposition to Church teachings.

Most Western Catholics on all sides of the political spectrum are “cafeteria Catholics”, and are basically Catholics due to cultural inculcation, not a real understanding of their faith. Most Catholics don’t really understand the theology of their Church, and most don’t go out of their way to amend that either.

What would be disastrous would be for the court to do nothing but go with the original intent of the constitution, as justices Scalia and Thomas try to do. The word “privacy” doesn’t appear anywhere in the constitution, there is no broad protection of it written into the document. All the constitution talks about is unreasonable searches and seizures. There’s certainly nothing in the document that was intended to protect a womans right to get an abortion. And those individual rights the bill of rights talks about, they were only ever intended to apply against the federal government, not the states. “Congress shall make no law…”, remember? The 14th amendment has been used to apply essentially all of the bill of rights to the states, but the people who wrote, passed, and ratified the 14th amendment never dreamed it could be used to extend the federal bill of rights to the state governments. They certainly never thought they were protecting homosexual conduct, even though the amendment has been used for that (see Lawrence v Texas). Heck, they didn’t even think they were prohibiting segregated schools. Do you really think the court was wrong in Brown v Board? These are the historical facts we have to deal with, if you really think the supreme court should be trying to figure out the original intent of the constitution, this is what you are asking for.

Another problem with trying to figure out original intent is that an original intent doesn’t necessarily exist to be found. There is a great section on why legislative intent is an incoherent notion in justice Scalia’s dissenting opinion in Edwards v Aguilllard, and the problem doesn’t go away when we consider legislatures that met centuries rather than years ago.

Finally, if you want to see the extreme of silliness that a supreme court opinion can become when they insist on doing the right thing and pretending to follow the constitution at the same time, I suggest you read the opinion in Griswald v Connecticut.

Individual rights, privacy and church/state separation are all constitutional issues, and because of the amendment system not all the relevant rules are 200 years old. If you want a justice that will make atheist friendly rulings, all you need to do is get one that will interpret the intent of the constitution instead of taking it upon his/herself to make good policy. The constitution is on our side. Public opinion isn’t.

Please let’s not delude ourselves into thinking that such a thing as “constitutionality” exists independent of the case law that exists at a particular point in time. It doesn’t. On the day before the supreme court announced its decision in Brown v. Board, separate but equal was every bit as constitutional as breathing. When the court decided Brown v. Board, they weren’t thinking about whether segregated schools were consistent with a single sentence written nearly a century before and they weren’t thinking about existing case law. They were thinking about what was morally right, about what was best for the country, about how they could make the best public policy they could, because that is their job. The last person I want sitting on the supreme court is someone who thinks supreme court cases are about what a two hundred year old document says. I want supreme court justices to be biased in favor of individual rights, I want them to be biased in favor of church/state separation, I want them to be biased in favor of privacy, I want them to be biased in a thousand other ways.

I actually watched several days worth of the Sotomayor hearings, and I was appalled by the fact that the senators weren’t doing their jobs. They were letting her get away with not answering any of the important questions. They confirmed her without having any idea whether she is capable of making a policy decision or not. And if she isn’t, this country is going to be stuck with a series of bad decisions from her for decades to come. That is why the supreme court can’t survive as an institution if this country doesn’t learn to accept and discuss the fact that it is a policy making body, just like any other branch of government.

That’s probably the best question here. There are likely agnostics or atheists on the Supreme Court, many in Congress, and several who have been President, but how many of them have been honest?

I think most judges do a fairly good job of making decisions irregardless of any overt religious bias

Probably. Unfortunately “most judges” are not on the Supreme Court. We will see.