Can religiously devout judges ignore God in their decisions?

Can religiously devout judges ignore God in their decisions? April 17, 2019

In an Oct. 6, 2013, interview with writer Jennifer Senior of New York magazine, late U.S. Supreme Court Justice Antonin Scalia, a devout Catholic, said some things that should give all secular Americans pause.

Antonin Scalia Clarence Thomas U.S. Supreme Court religion
Caricature of late U.S. Supreme Court Justice Antonin Scalia. (DonkeyHotey, Flikr, CC BY 2.0)

Because of some recent comments this month by current Supreme Court Justice Clarence Thomas, a fellow constitutional “originalist” and a mentee of Scalia’s, this old New York piece is now suddenly germane again.

This one magazine exchange below is enough to give me the willies, considering that Scalia’s was considered one of the brightest minds of his generation — perhaps of any generation — and he was one of the paragons of the American judiciary, appointed, in part, to keep church and state separate.

Jennifer Senior: Have you seen evidence of the Devil lately?

Antonin Scalia: You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.

Senior: No.

Scalia: It’s because he’s smart.

Senior: So what’s he doing now?

Scalia: What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

Senior: That has really painful implications for atheists. Are you sure that’s the ­Devil’s work?

Scalia: I didn’t say atheists are the Devil’s work.

Senior: Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe?

Scalia: Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.

Senior: Right.

Scalia: What happened to him?

Senior: He just got wilier.

Scalia: He got wilier.

Senior: Isn’t it terribly frightening to believe in the Devil?

Scalia: You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

Senior: I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it.

Scalia: I was offended by that. I really was.

So, what this learned, erudite former Supreme Court justice is basically saying is, because “most of America” believes that a supernatural being known as “the Devil” exists, and because it’s referenced in a 2,000-year-old book and is thematically present throughout Western history, a person has to be dangerously out of touch to not believe it.

And it offends him that everyone doesn’t believe it.

This without a shred of material, corroborating evidence. Keep in mind that the phenomenon of belief, no matter how widespread, and unverified stories related to that belief, no matter how emotionally compelling, don’t count as confirming evidence.

A religious test?

Which brings me to Clarence Thomas’ comments during a discussion this month at Churches of Christ-affiliated Pepperdine University near Malibu.

During the discussion, Thomas contended that religious faith does not corrupt the work of jurists, and he said he regretted that religion was insinuated into a 2017 congressional judicial confirmation hearing. The relevant incident was when California Sen. Diane Feinstein asked Judge Amy Coney Barrett, then a candidate for the federal judiciary, whether her devout Catholicism might compromise the objectivity of her judicial decisions.

It was not a random question. Sen. Feinstein referenced an article by Judge Barrett in a 1998 edition of the Marquette (University) law review titled “Catholic Judges in Capital Cases,” that “concluded that a Catholic trial judge who is a conscientious objector to the death penalty should recuse himself [or herself] if asked to enter an order of execution against a convict,” according to The Daily Caller.

“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said of Barrett’s writings regarding the professional obligations of Catholic practitioners. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

In response to the religious criticisms against her at the hearing, Judge Barrett said, “It is never appropriate for a judge to apply their personal convictions, whether it derives from faith or personal conviction.”

But other senators who questioned her were clearly not persuaded.

“I thought we got away from religious tests,” Thomas, himself a devout Catholic, said at Pepperdine, referring to the Constitutional prohibition against them. “I don’t think I know a single judge who has allowed religion to interfere with their jobs,” he added.

Thomas entered the seminary (a training facility for priests) as a young man but then left the church in 1968 when he became disillusioned with its failure to robustly fight racism. But he returned to the fold in 1993, a couple of years after being appointed to the Supreme Court. He told attendees at Pepperdine that he still attends morning Mass each day before beginning work on the court.

“I think if you start the day on your knees you approach your job differently from when you start thinking that someone anointed you to impose your will on others,” Thomas said, rightly stressing the importance of avoiding hubris in a rarified, important position.

Despite his Catholic piety, Thomas emphasized that he and Scalia “both felt that it would be a “violation of [their oaths] to somehow allow … faith to displace the law.”

But he also exhibited a blindness toward nonreligious sensibilities. He questioned the thinking of religious skeptics who choose to enter a profession like the judiciary where oaths are standard.

“I think it’s interesting in a profession where we all take an oath, that they would look at people who have strong faith as somehow not good people, when, if you’re an atheist, what does an oath mean?”

Well, to skeptics, an oath of fealty to an invisible being intrinsically has no meaning for either saints or heathens, whether anyone beleives it does or not.

But that reality seems to have eluded Justice Scalia before him and Justice Thomas now, that reasonable people of “good faith,” if not religious faith, can fairly conclude (in late poet Sylvia Plath’s words) that “the sky is empty.”

No matter how many people fervently believe otherwise.

Unfortunately, the believers in fantasies are guarding the Constitution.

Image/YouTube video

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