Tuesday, July 26, 2005
Revisiting Stephen Carter's Religiously Devout Judge and a Reprise of the Objective Model of Judging
More than fifteen years ago, Stephen Carter anticipated many of the questions that are being raised today about the legitimacy of religoiusly-devout judges drawing upon their religiously-based visions in making judicial decisions. Although he argued that a religiously-devout judge is as entitled to draw upon his religious faith as is another judge to draw upon moral principles, he concluded by asking whether it might not be preferable to return to the aspirational ideal of objective judging so that personal views, whether religious or otherwise, would not be the basis for judicial edicts. Below I set forth some of the concluding words in Stephen Carter, The Religiously Devout Judge, 64 Notre Dame L. Rev. 932 (1989):
"Now, of course, we ought to be uncomfortable with the idea that the religiously devout judge will proceed at once to her religious values—but only for the same reasons that we ought to be uncomfortable with the idea that any judge will proceed at once to her own values. * * *
I expect this proposal to make liberals uncomfortable, because the liberal uneasiness with religion is not readily overcome by brief, scholarly analysis. And yet, even if I have not convinced you that the religiously devout judge ought to be free to rest her moral knowledge on her religious faith, I hope that I have at least offered a plausible case for the proposition that there is no apparent reason to treat her religious faith differently from moral faiths of other kinds. The implication of this insight for the “do-the-right-thing” type of judicial review should be plain—either all judges should be free to rely on their moral knowledge as they make decisions, or no judges should.
The ideal of the objective judge was slain by the legal realists long before the critical legal studies movement resurrected it in order to kill it again. But the ghost of the objective judge refuses to go away. I doubt that the objective judge will die quietly, as long as liberals continue to think that letting a judge rest her decisions on a moral understanding is a good idea. Because once a judge’s moral understanding is permitted to play a role, the liberal argument cannot distinguish religiously based knowledge from other moral knowledge, or at least, cannot do so without arguments that require a bit too much cognitive dissonance. The aspirational model of the objective judge might offer the only path to sanity. And if we continue to pursue distinctions as crazy as this one, a path to sanity will be a useful thing to have."