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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
Wasn't Clarence Thomas involved in state law in Missouri as an Asst. AG?
On Jul 11, 2014 10:43 PM, Volokh, Eugene 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
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