(The Return of) Ignatz, by Sam Heldman
Saturday, January 15, 2005
I would like to believe that somebody mis-heardJustice Thomas expressly believes that "a judge should be evaluated by whether he faithfully upholds his oath to God, not to the people, to the state or to the Constitution"?
That's what a reporter for the B'ham News (a reporter who is reliable in my experience) says that one of Alabama's new Supreme Court justices said, at his investiture, that Justice Thomas told him personally within the last few days.
Now, if Justice Thomas really said that, that is quite a big deal. At the risk of stating the obvious in too many words, here's some explanation.
I do understand that some people believe that every aspect of their lives should be evaluated by whether they do what they think God wants them to do. I also understand that some people might believe that, if they assume the role of judge, they should conform their decisions to religious doctrine. This does not constitute judicial misconduct, but merely constitutes very bad judging in my view, if the person in question holds the jurisprudential view that laws and constitutions should be interpreted so as to be in conformity with their guess as to what God wants. If that's your jurisprudence, then you are a lousy judge in my view (because I don't believe that this is the overriding canon of interpretation of legal texts) but you are at least trying in some sense to do "law." (I'm bending over backwards to be philosophically generous here -- it should be obvious that such a jurisprudential view is absurd, but some people hold absurd views).
But -- if this quote is accurate -- Justice Thomas does not purport to have such a jurisprudential view, but instead he recognizes that there is a difference between a judge's fidelity to God and his or her fidelity to the constitution; that is the meaning of the assertion that you will be evaluated by your performance as to one rather than the other. Which does he choose? I think it fair to assume that a person who says that God will evaluate you on such-and-such, will try to do what he thinks God wants, right? So -- again if this quote is correct -- Justice Thomas has essentially admitted that he will make rulings based not on any view that they are correct as a legal matter, but because they are what God wants.
(Somebody could also believe that he will be evaluated as a judge based on his fidelity to God, but that God wants him to do straight law without a theocratic interpretive principle. That would make sense to me. But if that's what you believed, again you wouldn't speak in terms of a difference between fidelity to God and fidelity to constitution, in terms of one's evaluation as a judge; the grade would be the same on each, if God wants you to do straight law.).
So what's the deal? Did Alabama's new Supreme Court Justice really think he heard Justice Thomas say that? Did Justice Thomas really say it? It is, of course, impossible for any of us to get Justice Thomas under oath and ask him. We should, at least, create enough of a hubbub about the issue so as to make him feel that it is appropriate to issue a public statement confirming or denying that he really said it.
UPDATE: You can see, at Blue Mass Group, someone's transcription of the remarks by the new Alabama Justice. It is possible to read those remarks as meaning that what Justice Thomas was conveying, is that the oath to uphold the constitution is very important because it's an oath made to God, which would be a less problematic statement than the way the B'ham News paraphrased it. Whether this more generous interpretation is a better account of what Justice Thomas said, I don't know.
UPDATE UPDATE: Thanks to Juan Non-Volokh for the welcome back (and I will note that I have abandoned my theory that he is Miguel Estrada). But I think it's "unfair" and "misconstrues" this post to say (as he does, if I read correctly) that I was "unfair" to Justice Thomas and "misconstrued" his remarks. As you can see, this post was (1) based on the way that a newspaper reporter, whom I have found reliable, reported remarks attributed to him; and (2) explicitly based on the recognition that the attribution might be incorrect (see, e.g., title of post, and the various uses of "if" and like terms); and (3) updated as soon as there was better evidence of what remarks had been attributed to Justice Thomas. If Justice Thomas had in fact said what was originally attributed to him, I don't see how my reaction (which was based on that expressly tentative assumption) could possibly be described as unfair. Debatable, maybe. But given that the very conservative and religous Feddie (see comments to his linked post) agreed with me that the remarks would be troubling if correctly reported, "unfair" and "misconstrues" seem unwarranted to me. If I'm being overly sensitive to J N-V, I will try to chill.
UPDATE, Feb. 3: now, thanks to my sitemeter thingy, I know where Juan Non-Volokh works (or at least the university where he was getting his internet access a little while ago). There is no anonymity on the 'net, when you get right down to it. The secret is safe with me.
posted by sam 9:12 PM11 comments
11 Comments:
More to the point, he took a very public oath with his hand on the bible to uphold the constitution, so what he's really saying is that he reserves the right to only undertake those obligations to God that he feels like upholding.
Of course, we knew that.
The story is already second hand news Parker tells reporter. Did anyone besides Parker hear the comments. Does Thomas acknowledge making the statement. This may boil down to nothing more than Parker's word versus Thomas. It will certainly not be proven regardless how many heard Parker make the statement.
I guess God thinks it's OK to beat the shit out of a shackled prisoner:
SCALIA AND THOMAS SUPPORT BRUTALITY AGAINST PRISONERS: A recent case considered a Louisiana inmate who "was shackled and then punched and kicked by two prison guards while a supervisor looked on." The beating left the inmate "with a swollen face, loosened teeth and a cracked dental plate." The Court ruled the inmate's treatment violated the Eighth Amendment's prohibition of cruel and unusual punishment, but Scalia and Thomas dissented, arguing "the Eighth Amendment was not violated by the 'insignificant' harm the inmate suffered." In another case last year, Scalia and Thomas dissented from a 6-3 decision to ban the Alabama practice of chaining prisoners to outdoor ''hitching posts'' and abandoning them for hours without food, water, or a chance to use the bathroom. [Hudson v. McMillan, 1992; Hope v. Pelzer, 2002]
GrenfellHunt, I think that -- before dismissing the putative comments as nothing to worry about -- you should consider the context. Justice Parker was elected on the Roy Moore platform, expressly and overtly appealing to the notion that a public official should defy a court order that is binding on him, interpreting the U.S. Constitution, when he thinks that it is contrary to God's rules or preferences. Justice Parker then asks Justice Thomas to swear him in, in a small (even private, I think) ceremony. Any words that passed between the two of them at such a ceremony were, it is fair to infer, meant and heard as pretty darn important lessons about the role of Judge or Justice. If someone wanted to appeal to natural law theory in such a context, he would do so in some way other than by putting God in distinction to the people, state and constitution and declaring that the primary allegiance for the role of Judge or Justice should be to God rather than to the others. Someone wanting to advocate natural law, on such an occasion, would use words more calculated to suggest that allegiance to God is allegiance to the constitution. It is the recognition of the distinction, combined with the choice of God over constitution, that strikes me as extraordinarily serious.
Will we ever know for sure if Justice Thomas said this? We will if he says that he did. If he says that he did not, then maybe we will find ourselves in a "he said"/"they said", with "they" being Justice Parker and his wife, who was in attendance as well. That would be an unfulfilling outcome, but I believe that it is better than acting as though it's no big deal whether a U.S. Supreme Court Justice said such a thing or not.
Two points:
1.) Thomas is a member of Opus Dei, the personal prelature of the Pope comprised of lay persons. It is reported that his mentor, Scalia, introduced him to Opus Dei and converted him to Roman Catholicism. They both attended the same church as the convicted spy, Robert Hanssen - who was also a member of Opus Dei.
(see the GQ Magazine article on Opus Dei by CRAIG OFFMAN - December 2003)
2.) As a member of Opus Dei, Thomas has sworn his professional services to the universal Church and the Pope, whom he must believe to be the vicar of Christ on earth - or in other words, the substitute for God.
Thus, when Thomas says that he takes his orders from "God," he is not necessarily referring to the supernatural Creator so much as he is most probably referring to his earthly "vicar." In fact, all Catholics, if they know it or not, are considered dual citizens of Rome, according to Church catechism, and are expected to pledge allegiance to Vatican law over their own country's "temporal" authority.
That Scalia and Thomas are so committed to the Pope should explain why Bush, a supposed Protestant, has been such an active visitor to the Vatican since these men gave him the Presidency.
Given Scalia's recent Church-State "antiseparation" statements, we should be very concerned about Opus Dei members on the SCOTUS bench.
Ah yes, when all else fails: Blame the Catholic Church.
Just curious, if this is all some grand Catholic conspiracy to take over the United States government, then why didn't Judge Bill Pryor, a devout Catholic by all accounts, play ball and take Roy Moore's side when he willfully disobeyed a federal court order?
By 
Steve Dillard (aka Feddie), at
2:40 PM
Steve, the fact of the matter is one, and perhaps two, SCOTUS Justices have committed their temporal and professional services to a foriegn legal entity. In this case it is the personal prelature of "God's substitute on earth" and an organization that openly despises the concept of Church-State separation and secular liberalism in general. As a former Catholic myself I realize this has nothing to do with your personal beliefs, but that doesn't make it less bothersome to those of us who would like our SCOTUS Justices to be free of outside influences.
Grenfell: I’ll try to respond to as much as I can of your comment, in the little time I’ve got this morning. And it’s all going to take us a bit of distance from the original post, given that the Birmingham News’s paraphrase of Justice Parker’s comments, which was what originally caught my eye, turns out to have been inexact. Like Atrios, I recognize that the remarks that Justice Parker attributed to Justice Thomas are significantly less problematic than originally reported by the Bham News. Anyway, on to some of my response to your points:
I agree that a person with strong but non-religious moral views can find tension between those views and the role of judge. It is possible that people whose moral views are religiously-based have more difficulty wrestling with this tension than do the irreligious-moral, because God’s disapproval is a uniquely powerful motivator for those who believe they can predict it. I don’t know. I don’t believe that the Mayor of San Francisco was guilty of ignoring the law in favor of his own non-legal preferences/beliefs; I think he had an arguably correct legal (not moral, but legal) theory as to why he was required to do what he did. The difference between theocrats (and their irreligious counterparts who subjugate the law to their own moral code, if there are any such people) on the one hand, and law-people on the other, is whether they – internally and externally – think through the problems as a matter of law, or whether they say to themselves and others that when law conflicts with “x”, “x” wins. My problem with Justice Thomas’s comments, as initially reported, was that if the comments had been accurately reported, they would have put him on the wrong side of that line.
If I were a judge, my method of constitutional interpretation would – as to some constitutional questions – include reference to evolving notions of decency and justice. That is a theory of constitutional interpretation that many Supreme Court Justices have followed. It is a theory of constitutional interpretation, whether one agrees with it or not. That is what makes it different from a hypothetical judge who said to himself or to the public, “Whether or not the law and constitution (correctly read) so provide, I shall vote for outcome ‘x’ because my oath to God requires me to do so.” Maybe you agree with me on this, that such a person should not be a judge.
I know that many people with strong religious beliefs are great judges and great political leaders. The current “theophobiaphobia” is an invention by the Karl Roves and Bill O’Reillys of the world to divide people and win elections. You may see a relative handful of theophobes; they are not a strong force in society, I believe. Christians dominate this country in every way, so don’t worry. (This may sound snotty, but I mean it in a non-snotty way. To the extent that Christians claim that they are under attack and don’t have as much power or respect as they should, it in fact makes people like me worry even more that they ARE trying to move towards theocracy). I know nothing about Opus Dei (did listen to Da Vinci Code on a book on tape, hated it, and suspect that it’s 100% hooey) and am not particularly interested in whether any judge is a member. I am interested in what judges do as judges, and what they do to our society for good or bad.
2. Don’t dismiss “context” as an important guide to meaning of language. Even Justice Scalia will tell you this, ad nauseam!
3 and 4 will have to wait for some other day – got to go.
Defining “theocracy,” in the way that I and other modern lay people use the term, is a long project. Roughly, it includes at least a government in which elected or appointed officials feel it appropriate to make individual decisions based on their view as to what God wants rather than what the law requires. The trigger for my post had been the reporting that Justice Thomas made a statement indicating something like this. Also, a government that includes “too many” laws that are motivated purely by religious belief would, to my eye, count as a theocracy. How many is too many? I can live with “no liquor stores open on Sunday” laws, though they bother me. I can even live with no-parking rules that make explicit exception for those hours during which a nearby church is having Sunday services; I’ve seen lots of those, and they bother me greatly insofar as they don’t treat local union meetings the same way, but I can live with them. But there would come a point in which there are so many such laws, that a non-believer would feel that the government is being run according to religious belief, and that’s a theocracy in my book.
If you respond further and I don’t, don’t be offended – just means I’m busy for a couple of days.
PIGNATZ
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