Dahlia Lithwick’s piece on Slate last week, “Articles of Faith: Why Americans can’t talk about religion and the Supreme Court,” has its premise wrong, in my view.
We generally don’t talk much about religion and the Supreme Court. We
talk about the need for race and gender diversity on the court in
brave, sweeping pronouncements: The court needs more women, we say, or
more Asians, or more gay and disabled people. Because all those things
will impact the law. But when it comes to talking about religious
diversity, it happens in whispers, if at all. Because it might impact
In fact, we don’t (any longer) talk about the need for race and gender diversity on the court because we think diversity will impact the law. Remember the “wise Latina” controversy? We want the court to “look like America” because, well, we want the court to look like America. With the triumph of (bogus) conservative ideology about judges not “making” or even “interpreting” the law but simply “applying” it, we don’t get to claim anything about a different kind of person rendering decisions differently.
In this respect, a justice’s religion is like any other aspect of his or her identity: It can only be considered legitimate to notice as a measure of some diversity index, not as indicating a set of values or points of view. As a result, we are left with the odd situation where conservatives now tend to condemn the kind of separationist rhetoric JFK used in his Houston speech (“of course, we want elected officials to bring their religious values to bear on their public work”), while professing horror (see Scalia, Antonin) at the mere suggestion that a justice’s religion might affect his or her decisions.