The Supreme Court’s secular Jewish cabal’s war on religious freedom?

July 8

“It’s no coincidence that three of the four dissenters in Hobby Lobby were Jews with limited attachment to their religious heritage. Such Jews have always been uncomfortable with public displays of religion in the United States, and are especially hostile to the sorts of evangelical Christianity that motivates the owners of Hobby Lobby to seek religious exemptions from providing their employees with certain types of contraception. It’s also not surprising that three of the dissenting Justices are unmarried women, two of whom have never had children, because they see pregnancy as a disease in need of ‘preventive care’ rather than a blessing.”

That’s really reductionist and offensive, right? Yet my Facebook and Twitter feeds are filled with equally reductionist and offensive blog posts talking about the Catholic male cabal on the Supreme Court. I’m not one to deny that one’s general worldview affects one’s constitutional views, including as a Supreme Court Justice. But the Republican-appointed Justices were chosen because they were known to have generally conservative views on a range of issues. If Ronald Reagan and the Bushes would have instead appointed Doug Ginsburg (Jewish), Michael McConnell (Protestant), Harriett Miers (Protestant and female), Edith Jones (Protestant and female), and Michael Mukasey (Jewish) to the Supreme Court, Hobby Lobby would almost certainly have come out the same way. It’s certainly hard to come up with any prominent conservative jurist who objects to the result in Hobby Lobby other than eclectic maverick Richard Posner, who was never seriously considered for the Court precisely because conservatives didn’t trust him.

Progressivism had a long history of hostility to Catholics and Catholicism, which dissipated once progressivism morphed into more tolerant and civil libertarian modern liberalism (and as Catholics assimilated and the Catholic Church began to ally with liberals on a host of social welfare issues). But one can see from the reaction to Hobby Lobby that remnants of this hostility remain. And while like blogfather Eugene Volokh I don’t think that criticizing someone’s religious views are out of bounds or should be dismissed as prejudiced, attacking a fully secular Supreme Court opinion on the grounds that its authors happen to be Catholic should be well-out-of-bounds. So stop it.

UPDATE: To put the same point in a slightly different way, I can’t think of any issue on which Catholic legal conservatives as a group differ in their views in meaningful ways from non-Catholic legal conservatives. Nor, for that matter, can I think of any issue that divides male legal conservatives from female legal conservatives. The only exception of I can think of is that some Catholics think that natural law should inform constitutional jurisprudence, and that, for example, should lead to an interpretation of the Fourteenth Amendment that treats fetuses as “persons.” But this is well out of the mainstream of conservative thought, and none of the Catholic Justices currently in the Court have ever expressed any interest in natural law, except for Clarence Thomas back in the 1980s–when he was a Protestant.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA.
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