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May 24th, 2010
10:21 AM ET

'Should,' 'supposed to' and the Supreme Court

Religion scholar Stephen Prothero will be a regular contributor to CNN's Belief Blog. With his bestselling book "Religious Literacy: What Every American Needs to Know–And Doesn't," Prothero became the country's leading explainer of how religion undergirds much of American life and history - in ways that most us don't realize. With his new book, "God is Not One: The Eight Rival Religions that Run the World," the Boston University professor has taken his franchise global. A few times each week, Prothero will offer posts on the hidden faith angles behind the news.

By Stephen Prothero, CNN Belief Blog contributor

In my first CNN Belief Blog post, “Do 6 Catholics + 3 Jews = 9 Protestants?” I argued that, no matter how you do the math, we need more religious diversity on the Supreme Court. Over 700 comments flooded in, flowing in all sorts of intriguing directions. Many said we need more atheists; some said nine nonbelievers was about right. Meanwhile, “Trinity” suggested an approach apropos of his or her name:

How about 3 religious (pick your religions), 3 non-religious (atheists) and 3 indifferent (agnostics)? Sounds fair to me.

The most consistent criticism, however, was one I have heard many times before: when it comes to presidents, legislators, and Supreme Court justices, religion shouldn’t matter because the work of public officials should never be influenced by personal religious commitments.

As Dave put it:

We don't need religious diversity at all. They are judges. They should decide based on the law. Their faith, if they have any, shouldn't enter in to it at all.

And Craig:

Why does the Supreme Court need to be more religiously diverse? Isn't there supposed to be separation of Church and State? The premise of the "scholar" is wrong – the Supreme Court should be religion-blind, not religion specific.

Notice the language here. When it comes to American religion and politics, I continue to be surprised at how often we get bogged down in the rhetoric of should and supposed to be: public officials are supposed to be unbiased; they shouldn’t act on the basis of their private faith. This is a lovely sentiment, but it is miles removed from the real world. Here in the world of flesh and blood, each of us carries around a laundry list of biases, preferences, and interests that shape what we do 24/7. Or, as James Madison wrote in the "Federalist Papers," "As long as any connection exists between man's reason and his self-love, his opinions and passions will have reciprocal influence upon each other."

If Supreme Court justices were impersonal computers, taking in laws and facts and spitting out impartial decisions, then we would not need religious diversity on the court. We wouldn’t need racial or gender or regional diversity either. Nine old white Catholic men would work just fine. Or for that matter nine young African-American Muslim women. But the world is what it is. And it is in the real world, not the world of should and supposed to, that the flawed and imperfect human beings we call justices operate.

So here is the question I would put to my critics: Are human beings creatures of objective thought, able to click their fingers and magically set aside their biases, passions and "self-love"? Or are we creatures of subjective passions whose interests should be subject to the sorts of checks and balances that Madison so vigorously defended and a diversity of experience offers?

As I wrote in my earlier USA Today piece on Elena Kagan and the mathematics of the court, I take the latter view.  “When it comes to judges and their biases, there are only two types: those who acknowledge their biases and therefore try not to succumb to them, and those who are ignorant of their biases and therefore succumb to them unwittingly.”

The opinions expressed in this commentary are solely those of Stephen Prothero.

- CNN Belief Blog contributor

Filed under: Atheism • Catholic Church • Courts • Judaism • Opinion • Politics • Protestant

soundoff (79 Responses)
  1. JoeyAce13

    Freedom of Religion???? Ring a Bell??? I suppose it would be best if all 9 justices were gay and/or atheist....you know..because that would not be biased.... All you are doing is arguing for someone like you to sit on the Bench.. Get over your self! Catholics have the Supreme Court and Protestants the Presidency...there are 70+ million Catholics in this Country...do u live under a rock??

    May 30, 2010 at 12:14 pm |
  2. Nate (Seattle, WA)

    Every branch of our government is broken, Supreme Court included, because we insist on staffing them with old, religious people. Religious belief is sign of a mental deficiency. It doesn't mean you can't be a productive citizen, but it's certainly not helping you make complex decisions. If we arbitrarily decided that all professional athletes must have asthma, and be at least 30 years old, we'd still have some interesting sporting events. But, we'd be excluding the majority of really top performers.

    That's what society has done by clinging to this bias towards the old and the religious. So, we deserve all the foolish politicians, and backwards Supreme Court justices we now have.

    May 27, 2010 at 4:57 pm |
  3. Eric

    Peace commits the fallacy of "Begging the question" by trying to claim god exists because infinity exists. the first line of the proof is the premise that god is infinity, however even if we were to assume that the so-called evidence that follows was accurate (as opposed to mostly nonsensical) it doesnt prove the premise because the premise was based on an assumption.

    any concept that is unquantified is not infinite. its unquantified, once youve assigned it the value infinite, youve quantified it.

    As for the topic at hand.

    Yes absolutely there needs to be more religious diversity on the supreme court, nine catholics might make child buggery legal.

    May 27, 2010 at 4:47 pm |
  4. Math_Is_Fun

    Alright, let's tango.

    One of the most simple functions in math which involves infinity is f(x)=1/x. What you're saying is that, as the function f(x)=1/x approaches 0, it is equal to "God."

    Really?

    Is this how people get to heaven? They do math?? If so, I'm on my way up baby!

    But please, for infinity's sake, do NOT use math in your arguments which involve religion.

    Thank you.

    May 27, 2010 at 2:54 pm |
  5. Don Bennett

    all you have to do is just wait a short few months, with our president and the rest of his handful of none believers doing what there doing and turning our back on isreal and you will see judgement fall on our beloved country like you,ve never seen before. Jesus is coming, look up!

    May 27, 2010 at 1:23 pm |
  6. civiloutside

    Wait... your " absolute certainty" is arrived at by a statement that includes both the words "could" and "if?"

    May 27, 2010 at 11:22 am |
  7. Total non sense

    no one who beleive in any religion should be allowed to work for the goverment, the mere fact that someone is stupid enough to beleive fictional characters are real is proof enough that soneone is unfit as a public servant and even more as a judge....

    May 27, 2010 at 9:49 am |
  8. Reality

    The law schools attended by the Supreme Court Justices should eliminate any religious influence on their decisions??

    To wit:

    Harvard Law School

    Harry Blackmun
    Louis Brandeis
    William J. Brennan, Jr.
    Stephen Breyer – current
    Harold Hitz Burton
    Felix Frankfurter
    Melville Fuller – did not graduate
    Ruth Bader Ginsburg — graduated from Columbia Law School
    Oliver Wendell Holmes, Jr.
    Anthony Kennedy – current
    William Henry Moody – did not graduate
    Lewis Franklin Powell, Jr.
    John Roberts – current
    Edward Terry Sanford
    Antonin Scalia – current
    David Hackett Souter – current

    Yale Law School

    Samuel Alito – current
    Henry Baldwin
    David Davis
    Abe Fortas
    George Shiras, Jr.
    Sonia Sotomayor – current
    Potter Stewart
    William Strong
    Clarence Thomas – current
    Byron White

    Columbia Law School

    Benjamin N. Cardozo – completed two years, did not graduate
    William O. Douglas
    Ruth Bader Ginsburg – also attended Harvard Law School – current
    Charles Evans Hughes
    Joseph McKenna – studied at the law school, did not graduate
    Stanley Forman Reed – also attended University of Virginia School of Law, did not graduate from either
    Harlan Fiske Stone

    Maybe we should be concerned that most of the current judges attended either Harvard or Yale law schools????

    May 27, 2010 at 7:31 am |
  9. Stephen F. Roberts

    "I contend that we are both atheists. I just believe in one fewer god than you do. When you understand why you dismiss all the other possible gods, you will understand why I dismiss yours."

    May 27, 2010 at 6:39 am |
  10. Christopher F. Harrison

    "...when it comes to presidents, legislators, and Supreme Court justices, religion shouldn’t matter because the work of public officials should never be influenced by personal religious commitments"

    This quote in your responses is glaring evidence that our society today fails to understand one of the most important cornerstones in America's foundation.

    It does not matter so much whether an American believes in God, the ten commandments, or Judeo-Christian ethics so long as they have some respect and consideration for the collective conscience these beliefs embody. Why? Because of Love. How could we conciously hurt each other if the principle of Love were always paramount in our minds, our hearts, and our lives?

    Many Americans today regard the Law as a cold indifferent quantification of rules or guidelines to maintain a civil existence. OK, based on what, then? Like it or not, Love is the basis of the development of Law. For it is when we have learned how to love each other enough not to kill ourselves off in large numbers over petty indifferences have we have become a civil society.

    So, when a Supreme Court Justice has personal religious commitments in her background, and these influence her conscience as she contemplates a difficult Federal case that lower courts failed to settle, as long as these personal religious commitments reflect the spirit of Love that was used to found and maintain our nation's course through its history, I believe we're in good hands.

    May 27, 2010 at 4:54 am |
  11. DON ELLIOTT

    When are you so called scientific types going to wake up to the fact that until you can provide tangible proof, then all you have is a theory. Einstein presented the the theory of relativity, and it didnt take long for 2 other scientist to prove it.
    Darwin proposed te theory of evolution, that man evolved fro the chimp. If that was the case why do we still have chimps in the zoos and in the jungles. scientist have said they have wiped out certain deceases, how can that be when one scientist says "ALL THINGS ARE MADE OF MATTER AND MATTER CANNOT BE CREATED OR DESTROYED"

    May 27, 2010 at 4:46 am |
    • dman

      Your statement "the theory of evolution, that man evolved from the chimp" shows your lack of understanding of evolutionary theory. People easily dismiss what they don't understand.

      May 27, 2010 at 7:10 am |
    • Total non sense

      if we fellow your pretzel logic, how to prove that good exist? you simply cannot, it is a fictional character greated to control the masses. Only peoples with extremly low IQ (who use magic to explain thing), beleive in god.

      May 27, 2010 at 9:56 am |
    • civiloutside

      *Groans* Alright... evolution 101. First of all, evolution does not propose that humans evolved from chimps, but rather that both sepecies evolved from some other common ancestor (probably extinct). But even so... evolution also does not propose that all members of a species magically morph into new species either. Rather, that via a mechanism called mutation some new capability arises in a member (or group of related members) of the species. If that new characteristic enables that member to still breed successfully, then its descendants will also carry that trait – they will be the new species. However, this has NO EFFECT WHATSOEVER on the members of the original species who aren't decended from him. If the new species does not outcompete the old – and even that takes time, probably several generations – then there's no reason whatsoever that a new species can't exist at the same time as the one from which it evolved. The argument that "humans can't have evolved from monkeys because monkeys still exist" only displays a lack of understanding of what the theory of evolution actually says.

      May 27, 2010 at 11:41 am |
    • Joe

      Darwin did prpose that we evolved from chimps. He proposed that we and chimps eveolved common ancestor, who from an intellectual stand point you "magic types" are still very closely related.

      We "science types" have spent the last couple centuries chasing down the answer to the origin of life. We will likely have it before then end of this century. You "magic types" believe that the explanation for the origin of life on earth rests in a magic fairy tale written by people who thought the earth was flat and the sun circled it. And while we have spent hours and hours trying to find the real answer, you have spend thousands of years pushing a magical story of a fantastic god wizard who waved his magic wand and poof, there was an earth.

      May 28, 2010 at 2:57 pm |
  12. Peace

    AS less than 1% percent of the population of the US is agnostic or athiest. There shouldbe no surprize that none on the supreme court. With 99% professing at some level of relgious belief. 90% of those claim some form of Christainity. With Islam and Judism making up the majorty of the rest. If anything it should be 8 Christains and one Moslem or Jew to be puralistic. As it is now athiest/agnostics are over represented in the governemnt based on thier population.
    It is the poor and middle classthat are under-represented. If anything the majority of the supreme court and the rest of the governemnt should be of the stuggling economic class rather than the affluent ones.

    May 27, 2010 at 2:54 am |
    • dman

      Very incorrect. The non-religious are approximately 20% of the US population and are, in fact, quite under-represented in our gov't.

      May 27, 2010 at 7:08 am |
    • Sharon H

      Peace I totally agree with you. We the people of a Country build and founded on religion give to much uterance to Atheist and non believers. Since most people confess Christianity then more sitting on the Supreme Court should be as such. There is no way you can say your religion does not influence your decision, bunch of bull if someone confesses that. Even if religion does not influence your decision(highly unlikely) your background definitely does.

      May 27, 2010 at 7:57 am |
    • R. A. Williamson

      Peace needs to read the definition of agnostic.
      And the country needs to understand that there is a growing number of us that believe it's time to stop believing in this crap. Too many people have died to date in the name of a pure fiction.

      May 27, 2010 at 9:30 am |
    • civiloutside

      According to the Pew Forum on Religion statistics, approximately 78.4% of Americans identify themselves as Christian (a hefty chunk, but a far cry from the 90% you claim). All other organized religions combined total 4.7%, 0.8% of those surveyed could not or would not answer the question, and 16.1% were unaffiliated. The unaffiliated group included the 1.6% of all Americans who identify themselves as Atheist, the 2.4% who identified as Agnostic, the 6.3% who identified themselves as "secular unaffiliated," and the 5.8% who identified themselves as "religious unaffiliated." So at best you have 89.7% Religious (if we give you credit for all the refusals to answer) versus 10.3% nonreligious. Although a smaller group than the religious, the nonreligious are not statistically insignificant as you would have us think.

      May 27, 2010 at 10:00 am |
    • CubanMom

      Actually, I Googled this, and found that 77% of Americans claim to be Christians. Then you have to add the other faiths, and the number grows. Personally, I do not care what faith a person belongs to, nor do I care if they believe in God or not. There are plenty of good people who are atheists or agnostics and would serve our nation well.

      May 27, 2010 at 2:31 pm |
    • Joe

      Peace I totally agree with you. We the people of a Country build and founded on religion give to much uterance to Atheist and non believers. Since most people confess Christianity then more sitting on the Supreme Court should be as such. There is no way you can say your religion does not influence your decision, bunch of bull if someone confesses that. Even if religion does not influence your decision(highly unlikely) your background definitely does.

      This country was not founded on any religious principles. That is a myth perpetuated by the "righteous".

      And the idea that because a mojority believe in a boogeyman the rest of us should not have representation is in complete contrast to the founding principles of this country.

      The fundamental principle that this country was founded on is personal liberty, period. The rights of the individual to believe whatever they want, and to express those beliefs.

      That ideolgy flies directly in the face of the Christian ideal. Christianity demands an acceptance of the assertion that christ is the saviour and the only true path to salvation. There is no room for argment or conjecture. Believe what is written, or you are going to hell. There is no place for freedom of though in judeo christian religions. You either believe in, and accept the story or you are doomed to eternal damnation.

      The simple most basic tenet of christianity is in complete juxtaposition of the tenets set forth in the founding of this great nation. I have never, ever, once heard anyone set forth any salient argument as to how this country is somehow founded in christian principles. I've heard countless people say it, but never once heard someone prove it.

      May 28, 2010 at 3:15 pm |
  13. SM

    Religion in Justice in irrelevant unless you live in a theocratic state like Iran.

    Judges are guided by laws and persuaded by lawyers. All laws are subject to interpretation against the rubric of moral values which changes from generation to generation. If you want more clarity in legal decisions, move to a codified system.

    May 26, 2010 at 12:37 pm |
  14. chuckster

    Hey wait a minute, we need a Baptist, 7th Day Adventist, and a Scientologist on this panel!!!

    May 26, 2010 at 12:33 pm |
  15. Michael Wong

    Since the rules were originally created by people with money, that should not come as a surprise. The legal system has not been "corrupted"; it was always designed to be this way.

    May 26, 2010 at 8:14 am |
  16. brian

    Since when does diversity trump justice. Wake up people. Judging is not about popularity, it's about judging according to the law. Judges aren't in place to make new laws or overturn law. Judges were introduced so that people would not become the law unto themselves. These diversity-peddling advocates simply want to become the law unto themselves.

    May 26, 2010 at 12:00 am |
  17. Texas Pete

    seperation of church and state. I do not care about their beliefs. However, let the law do its job and keep their religious views out of it.

    May 25, 2010 at 12:25 pm |
  18. Sgstuck

    The atheists are believers topic is a different argument for a different day, but I can't agree that we should increase our practice of impeaching judges.

    The beauty of the Supreme Court is that judges can make their decisions without fear of repercussions. Sure if a judge goes off the deep end and begins voting against one ideology incessantly and without supportable reason than we should take action, but as you originally mentioned- the court doesn't really represent the people and the majority shouldn't be able to override them.

    May 25, 2010 at 11:48 am |
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The CNN Belief Blog covers the faith angles of the day's biggest stories, from breaking news to politics to entertainment, fostering a global conversation about the role of religion and belief in readers' lives. It's edited by CNN's Daniel Burke with contributions from Eric Marrapodi and CNN's worldwide news gathering team.