Re: Is Discussion of Justices' Religion "Off Limits"?

[Marty Lederman]

If I might be so presumptuous as to shift the question somewhat:

*Of course* Justices' religion, and their experiences and learnings as
adherents of particular religions, affects their perspectives when they
decide cases, especially (but not limited to) cases involving religion
(e.g., Town of Greece; Hobby Lobby).  If a religion had no such effect on
its adherents, it would hardly be worthy of the name, right?

So I don't think discussions of this question are or should be "off
limits," yet I wonder . . . to what end?  If we were all to agree that the
Catholic and Jewish Justices on the Court have very different perspectives
on these questions, in part (but not entirely) owing to their experiences
and understandings as Catholics and Jews, what, exactly, follows from that?


On Fri, Jul 11, 2014 at 1:17 PM, John Bickers  wrote:

>  When a Justice notes in oral argument (Salazar v. Buono) that the Cross
> is not limited to Christianity but is simply the default memorial because
> it is "the most common symbol" of the dead, how can it not be the case that
> the justices' life experiences--jobs, schools, politics, faith--are playing
> a role in how they decide cases?
>
>  John Bickers
> Salmon P. Chase College of Law
> Northern Kentucky University
>  --
> *From:* conlawprof-boun...@lists.ucla.edu [
> conlawprof-boun...@lists.ucla.edu] on behalf of Myron Moskovitz [
> mmoskov...@ggu.edu]
> *Sent:* Friday, July 11, 2014 1:04 PM
> *To:* CONLAWPROF
> *Subject:* Is Discussion of Justices' Religion "Off Limits"?
>
>   
>
>
>
> I replied that a judge's life experiences form at least part of his or her
> approach to resolving cases, and it is naïve to ignore this.  Some
> Justices expressly pepper their opinions and speeches and books with this
> fact.  Thomas does, Sotomayer does, and so do many others.  A Justice of
> a minority religion (whether Judaism, Muslim, Hinduism, or any other) might
> have had life experiences that make him or her more likely to identify with
> citizens faced with government-sponsored explicitly-Christian prayers.
>
>
>
> Tribe apparently believes that such a discussion is "off limits."  I
> don't.  Who is right?
>
>
>  Myron
>
>
>   Myron Moskovitz
>
> *Professor of Law Emeritus*
>
> *Golden Gate University School of Law*
>
> Phone: (510) 384-0354; *e-mail*: myronmoskov...@gmail.com
> *website*: myronmoskovitz.com 
>
>
> ___
> To post, send message to conlawp...@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
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Re: Is Discussion of Justices' Religion "Off Limits"?

[Richard Friedman]

Well, one thing that might follow is a discussion of the extent to which we
want the Supreme Court to be demographically representative of the nation.
In the early years of the Republic, there was a clear understanding that it
would be geographically representative -- one member from each Circuit.
That eventually washed away, as geography became less salient.  There are
clearly some other demographic expectations now, concerning gender and
ethnicity.  I suppose the biggest group not represented on the Court now is
Protestants.  I'm not advocating religion being a criterion for selection,
but I do think that's an interesting issue.

Rich Friedman


On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman 
wrote:

> If I might be so presumptuous as to shift the question somewhat:
>
> *Of course* Justices' religion, and their experiences and learnings as
> adherents of particular religions, affects their perspectives when they
> decide cases, especially (but not limited to) cases involving religion
> (e.g., Town of Greece; Hobby Lobby).  If a religion had no such effect on
> its adherents, it would hardly be worthy of the name, right?
>
> So I don't think discussions of this question are or should be "off
> limits," yet I wonder . . . to what end?  If we were all to agree that the
> Catholic and Jewish Justices on the Court have very different perspectives
> on these questions, in part (but not entirely) owing to their experiences
> and understandings as Catholics and Jews, what, exactly, follows from that?
>
>
> On Fri, Jul 11, 2014 at 1:17 PM, John Bickers  wrote:
>
>>  When a Justice notes in oral argument (Salazar v. Buono) that the Cross
>> is not limited to Christianity but is simply the default memorial because
>> it is "the most common symbol" of the dead, how can it not be the case that
>> the justices' life experiences--jobs, schools, politics, faith--are playing
>> a role in how they decide cases?
>>
>>  John Bickers
>> Salmon P. Chase College of Law
>> Northern Kentucky University
>>  --
>> *From:* conlawprof-boun...@lists.ucla.edu [
>> conlawprof-boun...@lists.ucla.edu] on behalf of Myron Moskovitz [
>> mmoskov...@ggu.edu]
>> *Sent:* Friday, July 11, 2014 1:04 PM
>> *To:* CONLAWPROF
>> *Subject:* Is Discussion of Justices' Religion "Off Limits"?
>>
>>   
>>
>>
>>
>> I replied that a judge's life experiences form at least part of his or
>> her approach to resolving cases, and it is naïve to ignore this.  Some
>> Justices expressly pepper their opinions and speeches and books with this
>> fact.  Thomas does, Sotomayer does, and so do many others.  A Justice of
>> a minority religion (whether Judaism, Muslim, Hinduism, or any other) might
>> have had life experiences that make him or her more likely to identify with
>> citizens faced with government-sponsored explicitly-Christian prayers.
>>
>>
>>
>> Tribe apparently believes that such a discussion is "off limits."  I
>> don't.  Who is right?
>>
>>
>>  Myron
>>
>>
>>   Myron Moskovitz
>>
>> *Professor of Law Emeritus*
>>
>> *Golden Gate University School of Law*
>>
>> Phone: (510) 384-0354; *e-mail*: myronmoskov...@gmail.com
>> *website*: myronmoskovitz.com 
>>
>>
>> ___
>> To post, send message to conlawp...@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Is Discussion of Justices' Religion "Off Limits"?

[Finkelman, Paul]

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was "representative" body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Richard Friedman [rdfrd...@umich.edu]
Sent: Friday, July 11, 2014 1:52 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court now is Protestants.  I'm 
not advocating religion being a criterion for selection, but I do think that's 
an interesting issue.

Rich Friedman


On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
If I might be so presumptuous as to shift the question somewhat:

Of course Justices' religion, and their experiences and learnings as adherents 
of particular religions, affects their perspectives when they decide cases, 
especially (but not limited to) cases involving religion (e.g., Town of Greece; 
Hobby Lobby).  If a religion had no such effect on its adherents, it would 
hardly be worthy of the name, right?

So I don't think discussions of this question are or should be "off limits," 
yet I wonder . . . to what end?  If we were all to agree that the Catholic and 
Jewish Justices on the Court have very different perspectives on these 
questions, in part (but not entirely) owing to their experiences and 
understandings as Catholics and Jews, what, exactly, follows from that?


On Fri, Jul 11, 2014 at 1:17 PM, John Bickers 
mailto:bicker...@nku.edu>> wrote:
When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not 
limited to Christianity but is simply the default memorial because it is "the 
most common symbol" of the dead, how can it not be the case that the justices' 
life experiences--jobs, schools, politics, faith--are playing a role in how 
they decide cases?

John Bickers
Salmon P. Chase College of Law
Northern Kentucky University

From: 
conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edu] 
on behalf of Myron Moskovitz [mmoskov...@ggu.edu]
Sent: Friday, July 11, 2014 1:04 PM
To: CONLAWPROF
Subject: Is Disc

Re: Is Discussion of Justices' Religion "Off Limits"?

[Marty Lederman]

Sandy's very provocative post is here:

http://balkin.blogspot.com/2014/07/the-elephant-in-room.html

As to which I would ask Sandy this:

As I read your post, the "elephant in the middle of the room" is that there
is an elephant in the middle of the room, and that the elephant makes
decisions on how to act, in part, based upon its history and perspective as
an elephant.

OK, but what follows from that?  Surely not that Presidents should appoint
fewer elephants.  If it's that Presidents should be indifferent as to
nominees' religion, I wholly concur.  (Indeed, Article VI virtually
requires such indifference.)  But that's not much of an issue these days,
is it?  Bush 43 did not appoint Roberts and Alito, for instance, *because *they
were Catholic.  He appointed them because he approved of their foreseeable
legal views -- views that were in part shaped by their Catholicism, to be
sure, but surely Bush was indifferent to the question of what the various
sources of their jurisprudence might be.


On Fri, Jul 11, 2014 at 2:19 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

>  For what it is worth, I have an extended posting on this on
> Balkinization, balkin.blogspot.com
>
>  I strongly disagree with Larry Tribe on this issue.
>
>  Sandy
>
> Sent from my iPhone
>
> On Jul 11, 2014, at 1:10 PM, "Patrick Wiseman"  wrote:
>
>   It's my guess that it is exactly that kind of reductionism to which
> Prof. Tribe was originally objecting.
>
> Cheers
> Patrick
>   What might follow is a serious discussion of whether, given life tenure
> and no appellate review of their decisions, ever, the relationship between
> values and law at SCOTUS is and always has been so egregiously out of whack
> that we should recognize as Posner says the Court is a unique "political
> court," or as I have written, it is not really a court at all.
>
>  Best,
>
>  Eric
>
> Sent from my iPhone
>
> On Jul 11, 2014, at 1:31 PM, "Marty Lederman" 
> wrote:
>
>If I might be so presumptuous as to shift the question somewhat:
>
>  *Of course* Justices' religion, and their experiences and learnings as
> adherents of particular religions, affects their perspectives when they
> decide cases, especially (but not limited to) cases involving religion
> (e.g., Town of Greece; Hobby Lobby).  If a religion had no such effect on
> its adherents, it would hardly be worthy of the name, right?
>
>  So I don't think discussions of this question are or should be "off
> limits," yet I wonder . . . to what end?  If we were all to agree that the
> Catholic and Jewish Justices on the Court have very different perspectives
> on these questions, in part (but not entirely) owing to their experiences
> and understandings as Catholics and Jews, what, exactly, follows from that?
>
>
> On Fri, Jul 11, 2014 at 1:17 PM, John Bickers  wrote:
>
>>  When a Justice notes in oral argument (Salazar v. Buono) that the Cross
>> is not limited to Christianity but is simply the default memorial because
>> it is "the most common symbol" of the dead, how can it not be the case that
>> the justices' life experiences--jobs, schools, politics, faith--are playing
>> a role in how they decide cases?
>>
>>  John Bickers
>> Salmon P. Chase College of Law
>> Northern Kentucky University
>>  --
>> *From:* conlawprof-boun...@lists.ucla.edu [
>> conlawprof-boun...@lists.ucla.edu] on behalf of Myron Moskovitz [
>> mmoskov...@ggu.edu]
>> *Sent:* Friday, July 11, 2014 1:04 PM
>> *To:* CONLAWPROF
>> *Subject:* Is Discussion of Justices' Religion "Off Limits"?
>>
>>   
>>
>>
>>
>> I replied that a judge's life experiences form at least part of his or
>> her approach to resolving cases, and it is naïve to ignore this.  Some
>> Justices expressly pepper their opinions and speeches and books with this
>> fact.  Thomas does, Sotomayer does, and so do many others.  A Justice of
>> a minority religion (whether Judaism, Muslim, Hinduism, or any other) might
>> have had life experiences that make him or her more likely to identify with
>> citizens faced with government-sponsored explicitly-Christian prayers.
>>
>>
>>
>> Tribe apparently believes that such a discussion is "off limits."  I
>> don't.  Who is right?
>>
>>
>>  Myron
>>
>>
>>   Myron Moskovitz
>>
>> *Professor of Law Emeritus*
>>
>> *Golden Gate University School of Law*
>>
>> Phone: (510) 384-0354; *e-mail*: myronmoskov...@gmail.com
>> *website*: myronmoskovitz.com 
>>
>>
>> ___
>> To post, send message to conlawp...@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>
>  

Re: Is Discussion of Justices' Religion "Off Limits"?

[Levinson, Sanford V]

What follows is that if a nominee, perhaps while running for elective office, 
has put his/her religious identity front and center ("I'm a committed Christian 
who always asks what would Jesus do") then it is legitimate to ask questions 
about that in a way that does not violate the No Test Oath clause.

My post was provoked, at least in part, by the habit of the NYTimes in 
emphasizing the gender split on the Wheaton College order but wholly failing to 
mention what strikes me, at least, as the elephant in the room.

Sandy

Sent from my iPhone

On Jul 11, 2014, at 1:35 PM, "Marty Lederman" 
mailto:lederman.ma...@gmail.com>> wrote:

Sandy's very provocative post is here:

http://balkin.blogspot.com/2014/07/the-elephant-in-room.html

As to which I would ask Sandy this:

As I read your post, the "elephant in the middle of the room" is that there is 
an elephant in the middle of the room, and that the elephant makes decisions on 
how to act, in part, based upon its history and perspective as an elephant.

OK, but what follows from that?  Surely not that Presidents should appoint 
fewer elephants.  If it's that Presidents should be indifferent as to nominees' 
religion, I wholly concur.  (Indeed, Article VI virtually requires such 
indifference.)  But that's not much of an issue these days, is it?  Bush 43 did 
not appoint Roberts and Alito, for instance, because they were Catholic.  He 
appointed them because he approved of their foreseeable legal views -- views 
that were in part shaped by their Catholicism, to be sure, but surely Bush was 
indifferent to the question of what the various sources of their jurisprudence 
might be.


On Fri, Jul 11, 2014 at 2:19 PM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:
For what it is worth, I have an extended posting on this on Balkinization, 
balkin.blogspot.com

I strongly disagree with Larry Tribe on this issue.

Sandy

Sent from my iPhone

On Jul 11, 2014, at 1:10 PM, "Patrick Wiseman" 
mailto:pwise...@gsu.edu>> wrote:


It's my guess that it is exactly that kind of reductionism to which Prof. Tribe 
was originally objecting.

Cheers
Patrick

What might follow is a serious discussion of whether, given life tenure and no 
appellate review of their decisions, ever, the relationship between values and 
law at SCOTUS is and always has been so egregiously out of whack that we should 
recognize as Posner says the Court is a unique "political court," or as I have 
written, it is not really a court at all.

Best,

Eric

Sent from my iPhone

On Jul 11, 2014, at 1:31 PM, "Marty Lederman" 
mailto:lederman.ma...@gmail.com>> wrote:

If I might be so presumptuous as to shift the question somewhat:

Of course Justices' religion, and their experiences and learnings as adherents 
of particular religions, affects their perspectives when they decide cases, 
especially (but not limited to) cases involving religion (e.g., Town of Greece; 
Hobby Lobby).  If a religion had no such effect on its adherents, it would 
hardly be worthy of the name, right?

So I don't think discussions of this question are or should be "off limits," 
yet I wonder . . . to what end?  If we were all to agree that the Catholic and 
Jewish Justices on the Court have very different perspectives on these 
questions, in part (but not entirely) owing to their experiences and 
understandings as Catholics and Jews, what, exactly, follows from that?


On Fri, Jul 11, 2014 at 1:17 PM, John Bickers 
mailto:bicker...@nku.edu>> wrote:
When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not 
limited to Christianity but is simply the default memorial because it is "the 
most common symbol" of the dead, how can it not be the case that the justices' 
life experiences--jobs, schools, politics, faith--are playing a role in how 
they decide cases?

John Bickers
Salmon P. Chase College of Law
Northern Kentucky University

From: 
conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edu] 
on behalf of Myron Moskovitz [mmoskov...@ggu.edu]
Sent: Friday, July 11, 2014 1:04 PM
To: CONLAWPROF
Subject: Is Discussion of Justices' Religion "Off Limits"?



I replied that a judge's life experiences form at least part of his or her 
approach to resolving cases, and it is na?ve to ignore this.  Some Justices 
expressly pepper their opinions and speeches and books with this fact.  Thomas 
does, Sotomayer does, and so do many others.  A Justice of a minority religion 
(whether Judaism, Muslim, Hinduism, or any other) might have had life 
experiences that make him or her more likely to identify with citizens faced 
with government-sponsored explicitly-Christian prayers.

Tribe apparently believes that such a discussion is "off limits."  I don't.  
Who is right?

Myron

Myron Moskovitz
Professor of Law Emeritus
Golden Gate Un

Re: Is Discussion of Justices' Religion "Off Limits"?

[Richard Friedman]

Well, certainly recent Presidents have made some appointments of women in
large part because they were women.  I don't think anybody is denying the
appropriateness of doing so.  Is religion different in this respect?  I
wonder.  If it is to any degree, is it because we're less concerned about
under-representation of Protestants than we are about under-representation
of women?  Is it because we think that religion is less likely than gender
to shape attitudes on matters of significance for a Supreme Court justice?

Rich


On Fri, Jul 11, 2014 at 2:34 PM, Marty Lederman 
wrote:

> Sandy's very provocative post is here:
>
> http://balkin.blogspot.com/2014/07/the-elephant-in-room.html
>
> As to which I would ask Sandy this:
>
> As I read your post, the "elephant in the middle of the room" is that
> there is an elephant in the middle of the room, and that the elephant makes
> decisions on how to act, in part, based upon its history and perspective as
> an elephant.
>
> OK, but what follows from that?  Surely not that Presidents should appoint
> fewer elephants.  If it's that Presidents should be indifferent as to
> nominees' religion, I wholly concur.  (Indeed, Article VI virtually
> requires such indifference.)  But that's not much of an issue these days,
> is it?  Bush 43 did not appoint Roberts and Alito, for instance, *because
> *they were Catholic.  He appointed them because he approved of their
> foreseeable legal views -- views that were in part shaped by their
> Catholicism, to be sure, but surely Bush was indifferent to the question of
> what the various sources of their jurisprudence might be.
>
>
> On Fri, Jul 11, 2014 at 2:19 PM, Levinson, Sanford V <
> slevin...@law.utexas.edu> wrote:
>
>>  For what it is worth, I have an extended posting on this on
>> Balkinization, balkin.blogspot.com
>>
>>  I strongly disagree with Larry Tribe on this issue.
>>
>>  Sandy
>>
>> Sent from my iPhone
>>
>> On Jul 11, 2014, at 1:10 PM, "Patrick Wiseman"  wrote:
>>
>>   It's my guess that it is exactly that kind of reductionism to which
>> Prof. Tribe was originally objecting.
>>
>> Cheers
>> Patrick
>>   What might follow is a serious discussion of whether, given life
>> tenure and no appellate review of their decisions, ever, the relationship
>> between values and law at SCOTUS is and always has been so egregiously out
>> of whack that we should recognize as Posner says the Court is a unique
>> "political court," or as I have written, it is not really a court at all.
>>
>>  Best,
>>
>>  Eric
>>
>> Sent from my iPhone
>>
>> On Jul 11, 2014, at 1:31 PM, "Marty Lederman" 
>> wrote:
>>
>>If I might be so presumptuous as to shift the question somewhat:
>>
>>  *Of course* Justices' religion, and their experiences and learnings as
>> adherents of particular religions, affects their perspectives when they
>> decide cases, especially (but not limited to) cases involving religion
>> (e.g., Town of Greece; Hobby Lobby).  If a religion had no such effect on
>> its adherents, it would hardly be worthy of the name, right?
>>
>>  So I don't think discussions of this question are or should be "off
>> limits," yet I wonder . . . to what end?  If we were all to agree that the
>> Catholic and Jewish Justices on the Court have very different perspectives
>> on these questions, in part (but not entirely) owing to their experiences
>> and understandings as Catholics and Jews, what, exactly, follows from that?
>>
>>
>> On Fri, Jul 11, 2014 at 1:17 PM, John Bickers  wrote:
>>
>>>  When a Justice notes in oral argument (Salazar v. Buono) that the
>>> Cross is not limited to Christianity but is simply the default memorial
>>> because it is "the most common symbol" of the dead, how can it not be the
>>> case that the justices' life experiences--jobs, schools, politics,
>>> faith--are playing a role in how they decide cases?
>>>
>>>  John Bickers
>>> Salmon P. Chase College of Law
>>> Northern Kentucky University
>>>  --
>>> *From:* conlawprof-boun...@lists.ucla.edu [
>>> conlawprof-boun...@lists.ucla.edu] on behalf of Myron Moskovitz [
>>> mmoskov...@ggu.edu]
>>> *Sent:* Friday, July 11, 2014 1:04 PM
>>> *To:* CONLAWPROF
>>> *Subject:* Is Discussion of Justices' Religion "Off Limits"?
>>>
>>>   
>>>
>>>
>>>
>>> I replied that a judge's life experiences form at least part of his or
>>> her approach to resolving cases, and it is naïve to ignore this.  Some
>>> Justices expressly pepper their opinions and speeches and books with this
>>> fact.  Thomas does, Sotomayer does, and so do many others.  A Justice
>>> of a minority religion (whether Judaism, Muslim, Hinduism, or any other)
>>> might have had life experiences that make him or her more likely to
>>> identify with citizens faced with government-sponsored explicitly-Christian
>>> prayers.
>>>
>>>
>>>
>>> Tribe apparently believes that such a discussion is "off limits."  I
>>> don't.  Who is right?
>>>
>>>
>>>  Myron
>>>
>>>
>>>   Myron Moskovitz
>>>
>>> *

Re: Is Discussion of Justices' Religion "Off Limits"?

[Levinson, Sanford V]

Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an " ordinary" criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain defense lawyers.  To engage in zealous representation 
of a non-white-collar defendant can put a serious crimp in one's hope to be 
appointed to the federal judiciary.

Sandy
Sent from my iPhone

On Jul 11, 2014, at 1:33 PM, "Finkelman, Paul" 
mailto:paul.finkel...@albanylaw.edu>> wrote:

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was "representative" body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: 
conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edu] 
on behalf of Richard Friedman [rdfrd...@umich.edu]
Sent: Friday, July 11, 2014 1:52 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court now is Protestants.  I'm 
not advocating religion being a criterion for selection, but I do think that's 
an interesting issue.

Rich Friedman


On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
If I might be so presumptuous as to shift the question somewhat:

Of course Justices' religion, and their experiences and learnings as adherents 
of particular religions, affects their perspectives when they decide cases, 
especially (but not limited to) cases involving religion (e.g., Town of Greece; 
Hobby Lobby).  If a religion had no such effect on its adherents, it would 
hardly be worthy of the name, right?

So I don't think discussions of this question are or should be "off limits," 
yet I wonder . . . to what end?  If we were all to agree that the Catholic and 
Jewish Justices on the Court have very different perspectives on these 
questions, in part (but not entirely) owing to their experiences and 
understandings as Catholics and Jews, what, exactly, follows from that?


On Fri, Jul 11, 2014 at 1:17 PM, John Bickers 
mailto:bicker...@nku.edu>> wrote:
When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not 
limit

RE: Is Discussion of Justices' Religion "Off Limits"?

[Graber, Mark]

One problem with religion at present is that it is very, very, very unclear 
whether religion is doing any work at all.  Consider the obvious.  The five 
most religious Catholics on the court were appointed by conservative Republican 
presidents.  The three Jews and the least religious Catholic on the court were 
appointed by more liberal Democratic presidents.  To evaluate the role of 
religion, you really would want a Jewish justice appointed by a Republican 
and/or a religious Catholic appointed by a Democrat.  And better yet, we might 
either the Jewish justice appointed by a Republican to toe the conservative 
line on matters that seem not to involve religion (state sovereign immunity?) 
but diverge on religious issues.  Same for the religious Catholic appointed by 
the Democrat.  But right now, what we largely have is five justices appointed 
by Republicans who consistently vote more conservatively than the four justices 
appointed by Democrats.  That the five conservatives may al!
 so be religious Catholics as of now, may have no more bearing on their rulings 
than that they all are right-handed (I'm making this up).


___
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Re: Is Discussion of Justices' Religion "Off Limits"?

[Paul Finkelman]

Agreeing with Sandy, I would just add that none (I believe) have  even been in 
a courtroom prosecuting an ordinary person. Have any  been involved in a plea 
bargain?  interviewed a witness in a holding cell?  or a police station?  
Except Ginsberg have have they dealt the day-to-day legal issues that most 
Americans face?




 From: "Levinson, Sanford V" 
To: Law & Religion issues for Law Academics  
Cc: CONLAWPROF  
Sent: Friday, July 11, 2014 3:02 PM
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?
 



Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an " ordinary" criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain
 defense lawyers.  To engage in zealous representation of a non-white-collar 
defendant can put a serious crimp in one's hope to be appointed to the federal 
judiciary.  

Sandy
Sent from my iPhone



On Jul 11, 2014, at 1:33 PM, "Finkelman, Paul"  
wrote:


Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways. 
>
>
>Except for Thomas all of the Justices come from the northeast or California 
>(or in Breyer's case both).  There is no one from the midwest (although 
>Roberts lived there a bit); One southerner  (Thomas) even though the South has 
>more than twice the population of the Northeast.  There no Protestants even 
>though they are the plurality of the nation. 
>
>
>Moreover, I am pretty sure that no one on this court has ever run for office 
>or held any elective office.  I do not believe any have actually been involved 
>in electoral politics at all.  None (I believe) ever attended a public 
>university of college; they are all graduates of private elite northeastern 
>ivy league law schools.  There is nothing wrong with those schools, but it has 
>created a court that is in-bred.
>
>
>The justices are elite not only in education but in their distance from the 
>average American (Ginsberg is the major exception, Sotomayor a bit) in their 
>careers and professional backgrounds.  There is no one like Warren or Black 
>who dealt with law and the individual level as a local prosecutor or judge.  
>No one like Powell or Blackmun who had local clients and were involved in 
>business.  No one like White who did something before law school.  None have 
>even served on a state court or been involved in state law.
>
>
>Historically the Court was "representative" body even if the justices were not 
>elected.  Today that is no longer the case.  This is not ideological, but more 
>about a culture that has separated the Court from the nation and its people in 
>rather profound ways
>
>The position of the Court in Town of Greece illustrates this disconnect. 
>Clearly, no one in the majority has ever represented someone before a city 
>council, town council, or local government board.  
>
>
>
>
>
>
>
>
> 
> 
>*
>Paul Finkelman, Ph.D.
>President William McKinley Distinguished Professor of Law
>Albany Law School
>80 New Scotland Avenue
>Albany, NY 12208
> 
>518-445-3386 (p)
>518-445-3363 (f)
> 
>paul.finkel...@albanylaw.edu
>www.paulfinkelman.com
>*
>
>
>
>
> 
>From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
>behalf of Richard Friedman [rdfrd...@umich.edu]
>Sent: Friday, July 11, 2014 1:52 PM
>To: Law & Religion issues for Law Academics
>Cc: CONLAWPROF
>Subject: Re: Is Discussion of Justices' Religion "Off Limits"?
>
>
>Well, one thing that might follow is a discussion of the extent to which we 
>want the Supreme Court to be demographically representative of the nation.  In 
>the early years of the Republic, there was a clear understanding that it would 
>be geographically representative -- one member from each Circuit.  That 
>eventually washed away, as geography became less salient.  There are clearly 
>some other demographic expectations now, concerning gender and ethnicity.  I 
>suppose the biggest group not represented on the Court now is Protestants.  
>I'm not advocating religion being a criterion for selection, but I do think 
>that's an interesting issue.
>
>
Rich Friedman 
>
>
>
>
>On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman  
>wrote:
>
>If I might be so presumptuous as to shift the question somewhat:
>>
>>Of course Justices' religion, and their experiences and learnings as 
>>adherents of particular religions, affects their perspectives when they 
>>decide cases, especially (but not limited to) cases involving religion (e.g., 
>>Town of Greece; Hobby Lobby).  If a religion had no such effect on its 
>>adherents, it would hardly be worthy of the name, right?
>>
>>
So I don't think discussions of this question are or should be "off limits," 
yet I wonder . .

Re: Is Discussion of Justices' Religion "Off Limits"?

[Renee L. Cyr, Esq.]

Rich wrote:


> If it is to any degree, is it because we're less concerned about 
> under-representation of Protestants than we are about 
> under-representation of women?


Am I the only one who's noticed that the only religions even being discussed 
are Abrahamic?  If under-representation is on the table, how about 
under-representation of the groups that are probably the most affected by City 
of Greece:  atheists, Hindus, Buddhists, Muslims, Pagans/Neo-Pagans and other 
non-Judeo-Christians?


- Renee


Renee L. Cyr, Esq.
Office of Steve S. Efron
237 West 35th Street, Suite 1502
New York, NY  10001
(212) 867-1067



-Original Message-
From: Richard Friedman 
To: Law & Religion issues for Law Academics 
Cc: Patrick Wiseman ; conlawp...@lists.ucla.edu 

Sent: Fri, Jul 11, 2014 3:04 pm
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?



Well, certainly recent Presidents have made some appointments of women in large 
part because they were women.  I don't think anybody is denying the 
appropriateness of doing so.  Is religion different in this respect?  I wonder. 
 If it is to any degree, is it because we're less concerned about 
under-representation of Protestants than we are about under-representation of 
women?  Is it because we think that religion is less likely than gender to 
shape attitudes on matters of significance for a Supreme Court justice? 


Rich





On Fri, Jul 11, 2014 at 2:34 PM, Marty Lederman  
wrote:



Sandy's very provocative post is here:

http://balkin.blogspot.com/2014/07/the-elephant-in-room.html


As to which I would ask Sandy this:


As I read your post, the "elephant in the middle of the room" is that there is 
an elephant in the middle of the room, and that the elephant makes decisions on 
how to act, in part, based upon its history and perspective as an elephant.


OK, but what follows from that?  Surely not that Presidents should appoint 
fewer elephants.  If it's that Presidents should be indifferent as to nominees' 
religion, I wholly concur.  (Indeed, Article VI virtually requires such 
indifference.)  But that's not much of an issue these days, is it?  Bush 43 did 
not appoint Roberts and Alito, for instance, because they were Catholic.  He 
appointed them because he approved of their foreseeable legal views -- views 
that were in part shaped by their Catholicism, to be sure, but surely Bush was 
indifferent to the question of what the various sources of their jurisprudence 
might be.




On Fri, Jul 11, 2014 at 2:19 PM, Levinson, Sanford V  
wrote:


For what it is worth, I have an extended posting on this on Balkinization, 
balkin.blogspot.com  


I strongly disagree with Larry Tribe on this issue.


Sandy

Sent from my iPhone


On Jul 11, 2014, at 1:10 PM, "Patrick Wiseman"  wrote:



It's my guess that it is exactly that kind of reductionism to which Prof. Tribe 
was originally objecting.
Cheers
Patrick


What might follow is a serious discussion of whether, given life tenure and no 
appellate review of their decisions, ever, the relationship between values and 
law at SCOTUS is and always has been so egregiously out of whack that we should 
recognize as Posner says the Court is a unique "political court," or as I have 
written, it is not really a court at all.


Best,


Eric

Sent from my iPhone

On Jul 11, 2014, at 1:31 PM, "Marty Lederman"  wrote:




If I might be so presumptuous as to shift the question somewhat:


Of course Justices' religion, and their experiences and learnings as adherents 
of particular religions, affects their perspectives when they decide cases, 
especially (but not limited to) cases involving religion (e.g., Town of Greece; 
Hobby Lobby).  If a religion had no such effect on its adherents, it would 
hardly be worthy of the name, right?


So I don't think discussions of this question are or should be "off limits," 
yet I wonder . . . to what end?  If we were all to agree that the Catholic and 
Jewish Justices on the Court have very different perspectives on these 
questions, in part (but not entirely) owing to their experiences and 
understandings as Catholics and Jews, what, exactly, follows from that?





On Fri, Jul 11, 2014 at 1:17 PM, John Bickers  wrote:


When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not 
limited to Christianity but is simply the default memorial because it is "the 
most common symbol" of the dead, how can it not be the case that the justices' 
life experiences--jobs, schools, politics, faith--are playing a role in how 
they decide cases?


John Bickers
Salmon P. Chase College of Law
Northern Kentucky University


From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Myron Moskovitz [mmoskov...@ggu.edu]
Sent: Friday, July 11, 2014 1:04 PM
To: CONLAWPROF
Subject: Is Discussion of Justices' Religion "Off Limits"?






 
I replied that a judge's life experiences form at least part of his or her 
approach to resolving cases, an

Re: Is Discussion of Justices' Religion "Off Limits"?

[Marc Stern]

Justice SotamayOr ‎has.

Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Paul Finkelman
Sent: Friday, July 11, 2014 3:19 PM
To: Law & Religion issues for Law Academics
Reply To: Paul Finkelman
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?


Agreeing with Sandy, I would just add that none (I believe) have  even been in 
a courtroom prosecuting an ordinary person. Have any  been involved in a plea 
bargain?  interviewed a witness in a holding cell?  or a police station?  
Except Ginsberg have have they dealt the day-to-day legal issues that most 
Americans face?


From: "Levinson, Sanford V" 
To: Law & Religion issues for Law Academics 
Cc: CONLAWPROF 
Sent: Friday, July 11, 2014 3:02 PM
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?


Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an " ordinary" criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain defense lawyers.  To engage in zealous representation 
of a non-white-collar defendant can put a serious crimp in one's hope to be 
appointed to the federal judiciary.

Sandy
Sent from my iPhone



On Jul 11, 2014, at 1:33 PM, "Finkelman, Paul" 
mailto:paul.finkel...@albanylaw.edu>> wrote:

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was "representative" body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: 
conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edu] 
on behalf of Richard Friedman [rdfrd...@umich.edu]
Sent: Friday, July 11, 2014 1:52 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court now is Protestants.  I'm 
not advocating religion being a criterion for selection, but I do think that's 
an interesting issue.

Rich Friedman


On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
If I might be so presumptuous as to shift the question somewhat:

Of course Justices' religion, 

RE: Is Discussion of Justices' Religion "Off Limits"?

[Finkelman, Paul]

Agreeing with Sandy, I would just add that none (I believe) have  even been in 
a courtroom prosecuting an ordinary person. Have any  been involved in a plea 
bargain?  interviewed a witness in a holding cell?  or a police station?  
Except Ginsberg have have they dealt the day-to-day legal issues that most 
Americans face?


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Friday, July 11, 2014 3:02 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?


Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an " ordinary" criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain defense lawyers.  To engage in zealous representation 
of a non-white-collar defendant can put a serious crimp in one's hope to be 
appointed to the federal judiciary.

Sandy
Sent from my iPhone

On Jul 11, 2014, at 1:33 PM, "Finkelman, Paul" 
mailto:paul.finkel...@albanylaw.edu>> wrote:

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was "representative" body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: 
conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edu] 
on behalf of Richard Friedman [rdfrd...@umich.edu]
Sent: Friday, July 11, 2014 1:52 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court now is Protestants.  I'm 
not advocating religion being a criterion for selection, but I do think that's 
an interesting issue.

Rich Friedman

RE: Is Discussion of Justices' Religion "Off Limits"?

[Walsh, Kevin]

I wrote some guest posts for CLR Forum on "the Catholic issue" a couple of 
years ago. They were based on a draft paper I have been kicking around for too 
long. Perhaps there is no time like the present to finish that paper up. In the 
meantime, my old posts are available at 
http://clrforum.org/author/kevincwalsh/. For some sense of the problems I 
sought to address in the paper, I've pasted in below the opening paragraphs 
from the introduction to the most recent version. The paper looks at Justices' 
votes in cases in which the United States Conference of Catholic Bishops filed 
an amicus curiae brief (whether alone or with other groups).

Some interesting tidbits: There was only one justice on the Rehnquist Court 
with a record of complete outcome agreement with the Bishops' Conference -- 
Byron White (appointed by President Kennedy in part because he was not a 
Catholic). And although I have not updated the statistics for the past three 
terms yet, I believe that there is only one Justice on the current Court with a 
similar record -- John Roberts. Catholic Justices Scalia, Kennedy, Thomas, 
Alito, and Sotomayor have all voted against outcomes supported by the Bishops' 
Conference as amicus curiae. Among recent cases, see Arizona v. United States, 
in which the USCCB argued that Arizona's law was completely preempted, and 
United States v. Windsor, in which the USCCB defended the constitutionality of 
DOMA.

If anyone is interested in offering critical comments on my paper after I 
update it to account for recent Terms and before I post it to SSRN, just email 
me off-list.

Kevin



Catholics have commanded a majority on the Supreme Court since early 2006 when 
Justice Alito joined the Court as its fifth sitting Catholic Justice. And the 
Catholic ranks swelled to a supermajority in August 2009 when Justice Sotomayor 
joined the Court. These developments have resulted in plenty of commentary over 
the past several years linking the religious identity of the Catholic Justices 
with their votes and opinions. This commentary will continue as long as there 
are enough Catholics on the Court to make a difference in how cases turn out.


There are three problems with much of this commentary. First, it pops up—and 
will continue to pop up—in the same way that the Supreme Court decides cases: 
one case at a time. As a result, commentary on Catholic Justices voting for the 
outcome supported by the Catholics bishops in an abortion case, for example, is 
not linked to commentary on Catholic Justices voting against the outcome 
supported by the Catholic bishops in a death penalty case. And, predictably, 
the commentary on Catholic Justices voting for the outcome supported by the 
Catholic bishops in the HHS Mandate cases will not be linked to commentary on 
Catholic justices voting against the outcome supported by the Catholic bishops 
in deciding on a constitutional right to same-sex marriage.


Second, there is a curious asymmetry in causal attributions. It is not deemed 
news- or noteworthy that Catholic Justices sometimes vote against outcomes 
advocated by Catholic bishops. And yet commentators somehow think it plausible 
to assert that when these Justices vote for an outcome supported by the 
Catholic bishops, they do so because they are Catholics. For example, if 
Justice Kennedy votes to uphold a ban on partial-birth abortion, he does so 
because he is a Catholic; but if he votes to find a constitutional right to 
same-sex marriage, he does so despite being a Catholic. This asymmetry was on 
display recently when some commentary attributed Justice Sotomayor’s entry of 
an injunction to protect the Little Sisters of the Poor from the contraceptives 
mandate to her Catholic background, while coverage of her dissent from the 
Wheaton College injunction regarding the same mandate focused on her gender 
rather than her religious background.


Third, this commentary tends to ignore the legal and ideological coherence of 
the particular Justices’ votes considered apart from their identity as 
Catholics. Justice Scalia’s votes in abortion and death-penalty cases are 
explained by similar jurisprudential commitments that align him with the 
Bishops’ Conference’s position in one set of cases and against their position 
in the other. The same may be said of Justice Kennedy’s votes in death-penalty 
and same-sex marriage cases, to pick another example. Academic attitudinalists, 
who view Justices’ votes as a function of the Justices’ attitudes, attribute 
little significance to religion as an ideological variable. Yet armchair 
attitudinalists in the commentariat nevertheless insist on ecclesial 
affiliation as explanatory.


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu]
Sent: Friday, July 11, 2014 3:34 PM
To: Levinson, Sanford V; Law & Religion issues for Law Academics
Cc: CONLAWPROF
Sub

RE: Is Discussion of Justices' Religion "Off Limits"?

[Kniffin, Eric N.]

Justice Alito was an AUSA from 77 to 81, prosecuting mainly drug trafficking 
and organized crime cases.  I'm not sure whether he'd say the job entailed 
prosecuting "ordinary" people, but he surely performed the other tasks Paul 
lists.


[cid:image001.gif@01CF9D14.96ECECD0]

Eric N. Kniffin, Of Counsel

Lewis Roca Rothgerber LLP |

90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662

(T) 719.386.3017 | (F) 719.386.3070

eknif...@lrrlaw.com | 
www.LRRLaw.com




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Rothgerber Johnson & Lyons LLP is now Lewis Roca Rothgerber LLP.




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, July 11, 2014 1:34 PM
To: Levinson, Sanford V; Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: RE: Is Discussion of Justices' Religion "Off Limits"?


Agreeing with Sandy, I would just add that none (I believe) have  even been in 
a courtroom prosecuting an ordinary person. Have any  been involved in a plea 
bargain?  interviewed a witness in a holding cell?  or a police station?  
Except Ginsberg have have they dealt the day-to-day legal issues that most 
Americans face?


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*



From: 
conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V 
[slevin...@law.utexas.edu]
Sent: Friday, July 11, 2014 3:02 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?

Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an " ordinary" criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain defense lawyers.  To engage in zealous representation 
of a non-white-collar defendant can put a serious crimp in one's hope to be 
appointed to the federal judiciary.

Sandy
Sent from my iPhone

On Jul 11, 2014, at 1:33 PM, "Finkelman, Paul" 
mailto:paul.finkel...@albanylaw.edu>> wrote:
Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was "representative" body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*

From: 
conlawprof-boun...@lists.ucla.edu 
[conl

Re: Is Discussion of Justices' Religion "Off Limits"?

[Steven Jamar]

Cardozo wrote that sometimes he had trouble deciding cases then the answer 
would just come to him while walking down the street - -and then he had to put 
that insight into the legal framework we accept as proper.  Surely the same is 
true today on major cases and even in cases where the result is certain for 
extra-legal reasons (dislike of women, dislike of Catholics, dislike of big 
government, dislike of Obama, dislike of homosexuals, etc.) the court takes 
pains to put the case into the generally accepted discourse structures we are 
all so familiar with.  Indeed, this discourse style has even been cited in 
cases as one of the institutional constraints on pure personal bias-driven 
results.

Few closely contested cases are decided for the reasons the court gives.  Does 
anyone really buy secondary effects analysis as not-content-based?  yet the 
court used that as the fig leaf to cover its foray so as to try to mess with 
standard freedom of expression jurisprudence as little as possible in other 
contexts.

Steve



On Jul 11, 2014, at 3:06 PM, Stephen M. Feldman  wrote:

> I suspect that scholars make statements like Tribe’s—that discussing the 
> justices’ religions should be off limits—because they are stuck in a 
> traditional either/or: Either Supreme Court decision making is all law (the 
> traditional law professor view) or all politics (the traditional political 
> science view). To me, either ‘pure’ approach—pure law or pure politics—leads 
> to absurdities. And politics, here, can be defined broadly to include 
> religious and cultural backgrounds.
>  
> One can reasonably sketch out a middle ground, where the justices sincerely 
> interpret legal texts but are nonetheless influenced by politics (including 
> their religious backgrounds). Sisk and Heise have published several empirical 
> studies on the influence of religion on judicial decision making, and I 
> summarized the empirical work related to this area several years ago. 
> Empiricism, Religion, and Judicial Decision Making, 15 Wm. & Mary Bill Rts. 
> J. 43 (2006). If anyone might be interested, I have a new piece forthcoming 
> on the law-politics relationship. Supreme Court Alchemy: Turning Law and 
> Politics Into Mayonnaise, _ Geo. J. L. & Pub. Pol’y _ (forthcoming).
>  
> Step
>  
>  
> 
> * * * *
> Stephen M. Feldman
> Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct 
> Professor of Political Science
> University of Wyoming
> 307-766-4250
> fax: 307-766-6417
> sfeld...@uwyo.edu
> Author of Neoconservative Politics and the Supreme Court: Law, Power, and 
> Democracy
> and Free Expression and Democracy in America: A History
>  

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://sdjlaw.org

"I am in Birmingham because injustice is here. . . . Injustice anywhere is a 
threat to justice everywhere."

Martin Luther King, Jr., (1963)





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RE: Is Discussion of Justices' Religion "Off Limits"?

[Sisk, Gregory C.]

Thanking Step Feldman for his mention, the empirical studies that Michael 
Heise, Andrew Morriss, and I have conducted on religious liberty decisions in 
the federal courts did indeed find that religion was an important factor on 
Free Exercise decisions - but it tended to the religion of the claimant that 
mattered the most.

For the 1986-1995 period, we found that traditionalist Christians - Catholics, 
evangelical Baptists, etc. - were significantly more likely to lose in seeking 
accommodation for religious exercise under the First Amendment or religious 
liberty statutes.  Gregory C. Sisk, Michael Heise & Andrew P. Morriss, 
Searching for the Soul of Judicial Decisionmaking:  An Empirical Study of 
Religious Freedom 
Decisions,  65 Ohio 
St.  L.J. 491 (2004).

By the 1996-2005 period, that traditionalist Christian deficit had disappeared. 
 Michael Heise & Gregory C. Sisk, Free Exercise of Religion Before the Bench:  
Empirical Evidence From the Federal 
Courts, 88 Notre 
Dame L. Rev. 1371 (2013); Gregory C. Sisk & Michael Heise, Muslims and 
Religious Liberty in the Era of 9/11:  Empirical Evidence From the Federal 
Courts, 98 Ia. L. 
Rev. 231 (2012).  One possible reason for that change, we hypothesized, was 
that a large number of the claims presented by traditionalist Christians were 
for exemption from anti-discrimination statutes, such as employment cases 
involving teachers in religious institutions, a position that had largely 
prevailed in the lower federal courts by the middle of the last decade, even 
before the Supreme Court's decision in Hosanna Tabor.

However, for the 1996-2005 period, we found that Muslim Americans had only 
about half the chance to succeed in religious accommodation cases as did 
claimants from other religious communities.  In the "Muslims and Religious 
Liberty" article, we discussed possible explanation for this Muslim claimant 
deficit.

As for judges, we found some evidence that Jewish and non-mainstream Christian 
judges were attracted to religious accommodation claims during the 1986-1995 
period.  But we did not replicate that for Free Exercise cases in the 1996-2005 
period, although we found that Asian and Latino judges as well as judges who 
were former law professors were particularly amenable to Free Exercise and 
accommodation claims. In sum, our results paint a complex and nuanced picture 
of how extra-judicial factors inform Free Exercise litigation outcomes as well 
as judicial decisionmaking more generally.

Perhaps more pertinent to the current thread, in a related study, we did find a 
powerful correlation between the political party of the judge and the outcome 
in Establishment Clause cases - even controlling for the judge's own religious 
background (but not finding religious affiliation of judges to be a significant 
influence in either direction).  Gregory C. Sisk & Michael Heise, Ideology "All 
the Way Down"? An Empirical Study of Establishment Clause Decisions in the 
Federal Courts, 110 
Mich. L. Rev. 1201 (2012).  And here, rather than focusing on the judge's own 
background directly, we suggested that the impact of political party may well 
be attributable to the increasing divide between the political parties on 
matters of religion and thus on those who make judicial appointments.  As we 
said in the abstract for that article:

  A religious-secular divide that has become associated with the two major 
political parties increasingly characterizes our national political discourse 
about the proper role of religion and religious values in public life. The 
federal courts may be sliding down into the same "God Gap" that has opened and 
widened between left and right and between Democrat and Republican in the 
political realm. Because of the notorious lack of clarity in the Supreme 
Court's Establishment Clause jurisprudence and a consequent low level of law 
formality, the door has been thrown wide open to unrestrained political 
judging. Sadly, the Supreme Court's Establishment Clause doctrine has become an 
attractive nuisance for political judging.

Michael Heise and I are planning to follow the study forward into the next 
ten-year period, 2006-2015, and expect to begin collecting data in the next 12 
to 18 months.

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

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RE: Is Discussion of Justices' Religion "Off Limits"?

[Sisk, Gregory C.]

Quite right!  Indeed, in an academic environment in which empirical researchers 
on the judiciary are sometimes too quick to assume that it's all politics or 
all personal background, Michael Heise and I (and several others, notably 
including Frank Cross) have worked to put this all in context, address the 
limitations on quantitative measures especially of ideology, and to emphasize 
the importance as well of traditional legal factors in judicial making:  See 
Gregory C. Sisk & Michael Heise, Judges and Ideology:  Public and Academic 
Debates About Statistical 
Measures (with 
Michael Heise), 99 Nw. U. L. Rev. 743 (2005).  One need not adopt what Frank 
Cross and Blake Nelson rightly describe as the "naïve legal model," that 
judging is nothing but formal legal reasoning, to insist that law, legal text, 
precedent, etc. do matter and matter very much.

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: Stephen M. Feldman [mailto:sfeld...@uwyo.edu]
Sent: Friday, July 11, 2014 5:48 PM
To: Eric J Segall; Sisk, Gregory C.; 'Law & Religion issues for Law Academics'
Cc: 'conlawp...@lists.ucla.edu'
Subject: RE: Is Discussion of Justices' Religion "Off Limits"?

I agree with Eric, which is why I suggested that we should think of politics 
broadly, as encompassing religion and culture. From my perspective, 
constitutional scholars too infrequently examine the law-politics dynamic that 
is integral to Supreme Court decision making. It is easier to focus solely on 
law or solely on politics, but neither law nor politics alone determines the 
justices' votes and decisions. It is worth mentioning, though, that 
quantitative studies, such as those by Greg Sisk and his collaborators, 
necessarily focus on a limited number of variables. Thus, if one of Greg's 
articles focuses on, let's say, the religion of the claimants, I don't think he 
intends to suggest that the claimants' religion is the only relevant factor. 
Rather, quantitative studies can examine only a certain number of measurable 
variables at any one time. And I don't intend to speak for Greg, so I apologize 
if it sounds that way.

Step



* * * *
Stephen M. Feldman
Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct 
Professor of Political Science
University of Wyoming
307-766-4250
fax: 307-766-6417
sfeld...@uwyo.edu
Author of Neoconservative Politics and the Supreme Court: Law, Power, and 
Democracy
and Free Expression and Democracy in America: A 
History

From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Friday, July 11, 2014 4:31 PM
To: Sisk, Gregory C.; 'Law & Religion issues for Law Academics'
Cc: 'conlawp...@lists.ucla.edu'
Subject: RE: Is Discussion of Justices' Religion "Off Limits"?

I think this discussion misses the real "Elephant" in the room. I don't think 
anyone thoughtful believes any one non-legal background factor fully explains 
any one decision. The question I think is whether text, tradition, precedent, 
structure, and history do significant work at SCOTUS or whether other non-legal 
factors play a much larger role, and if they do, why don't we require the 
Justices to try and identify those other factors when explaining the purported 
reasons for their decisions.

I would hate to see a discussion of the Court's legitimacy turn on the religion 
issue. Greece and Hobby Lobby, I think, were generated by far more complicated 
personal factors, but the choices the Justices made, were, in my opinion, 
nevertheless, personal.

Best,

Eric
[X]
From: 
conlawprof-boun...@lists.ucla.edu 
mailto:conlawprof-boun...@lists.ucla.edu>> 
on behalf of Sisk, Gregory C. mailto:gcs...@stthomas.edu>>
Sent: Friday, July 11, 2014 6:08 PM
To: 'Law & Religion issues for Law Academics'
Cc: 'conlawp...@lists.ucla.edu'
Subject: RE: Is Discussion of Justices' Religion "Off Limits"?

Thanking Step Feldman for his mention, the empirical studies that Michael 
Heise, Andrew Morriss, and I have conducted on religious liberty decisions in 
the federal courts did indeed find that religion was an important factor on 
Free Exercise decisions - but it tended to the religion of the claimant that 
mattered the most.

For the 1986-1995 period, we fou

Practice experience of Justices

[Volokh, Eugene]

   My understanding is that Anthony Kennedy was a local Sacramento 
lawyer of some distinction - and not at a large firm - from 1963 to 1975.  I 
suspect this was largely a civil practice, so it might not go to criminal law 
experience (which, as some pointed out, only Alito and Sotomayor seem to have), 
but it is relevant to whether someone has had experience with local clients, 
and was involved in state law.

   Eugene


The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

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Re: Practice experience of Justices

[Tessa Dysart]

Wasn't Clarence Thomas involved in state law in Missouri as an Asst. AG?

On Jul 11, 2014 10:43 PM, "Volokh, Eugene"  wrote:
   My understanding is that Anthony Kennedy was a local Sacramento 
lawyer of some distinction – and not at a large firm – from 1963 to 1975.  I 
suspect this was largely a civil practice, so it might not go to criminal law 
experience (which, as some pointed out, only Alito and Sotomayor seem to have), 
but it is relevant to whether someone has had experience with local clients, 
and was involved in state law.

   Eugene


The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

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RE: Practice experience of Justices

[Volokh, Eugene]

   I didn’t include him because my sense is that he was on the 
appellate side, which isn’t the sort of experience that was under discussion.  
But I may well be wrong.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Tessa Dysart
Sent: Friday, July 11, 2014 10:50 PM
To: Law & Religion issues for Law Academics
Subject: Re: Practice experience of Justices


Wasn't Clarence Thomas involved in state law in Missouri as an Asst. AG?
On Jul 11, 2014 10:43 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
   My understanding is that Anthony Kennedy was a local Sacramento 
lawyer of some distinction – and not at a large firm – from 1963 to 1975.  I 
suspect this was largely a civil practice, so it might not go to criminal law 
experience (which, as some pointed out, only Alito and Sotomayor seem to have), 
but it is relevant to whether someone has had experience with local clients, 
and was involved in state law.

   Eugene


The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

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Re: Is Discussion of Justices' Religion "Off Limits"?

[Volokh, Eugene]

   One problem with public complaints about how the Justices making 
various decisions are Catholics, and how about that surely influences their 
views -- besides, of course, than Mark Graber's point that such influence is 
pretty hard to show, given that their more general political ideologies may be 
the better explanation - is that it might easily lead people to wonder why, in 
a nation that's 2% Jewish, we should have three Jewish Justices, or for that 
matter even one.  The same is true if the concern is simply that Catholics are 
overrepresented on the Court, and that we should instead seek a nation that 
worships like America, or reflects America's demographics.  As a Jew (albeit a 
secular one), that's not a discussion that I'd prefer to see.

   Eugene
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