November 5, 2013

The Supreme Court's religion and the Constitution cases "satisfy no one — including the Justices" who go on "fact-free intuitions about religion..."

"... which vary with their attitudes toward religion, which in turn derive from their religious beliefs and affiliations, or lack thereof." They "form confident views without any empirical basis."
Fact-free constitutional adjudication is abetted by constitutional lawyers (prominently including professors of constitutional law), who “know little about their proper subject matter— a complex of political, social, and economic phenomena. They know only cases. An exclusive diet of Supreme Court opinions is a recipe for intellectual malnutrition.”
Writes Judge Posner in "Reflections on Judging" (quoting himself in an earlier book). Here's his footnote summarizing the mess in the case law:

See, for example, Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398– 99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late-night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).
I'd have given credit to the Justices responsible for those vivid words — Thomas and Scalia, respectively. 

AND: By the way, quoting Scalia and Thomas doesn't very well support the proposition that no one is satisfied (though the proposition is probably true or close to true).

10 comments:

Skyler said...

Why anyone would rely on Posner as a model of how to write opinions is beyond me. I was never impressed.

Paul Zrimsek said...

Is this the same Judge Posner who's been alternately saying and unsaying how differently he would have decided the Indiana voter-ID case if he'd had the facts?

RichardS said...

If memory serves, current jurisprudence allows that humanism is a religion when it comes to free exercise cases, but not in establishment cases. The result is a mess. If the Court were to be consistent, however, the famous "mystery clause" of Casey would be revealed to be an establishment.

jimbino said...

Why don't you quote a sitting Justice who is not a Roman Catholic or a Jew?

Or a historic Justice who was at atheist, or at least not a Christianist or Jew?

paul a'barge said...

Really?

Why does Judge Posner keep turning up here? The man is a knuckle-dragging Lib-tard.

traditionalguy said...

Today's confusion comes from educated humanist fools. Separation of Church and State started as a humanist ideal in the early Reformationb days created to remove the State from taking sides in the religious schisms between its citizens who had read a newly translated Pauline Gospel of Sola Fides and Sola Grace long hidden in Latin versions of the scripture.

The value of that stance in 1540s to 1680s was that the power of State to Arrest, expropriate the property of and Judicially Murder innocent men by roasting them alive over fires for " heresy" could be restrained for a season here and thereby a secular ruler who wanted all of his citizens kept alive.

But whereever the citizens being targeted could be seen as an easily sacrificed minority, then the Kings of France, Spain and Austria and the Pope who suported them joined right back into the fun of Catholic Murder squads roasting men alive and massacres of ethnic groups.

Since 1788 the USA went much further and adhered to a tolerance of all religions. But since the 1960s the Supreme Court reverted us back to Humanist doctrine of Separation of Church and State as if that helps solve the problems. It really outlaws religions.

YoungHegelian said...

@Tradguy,

But whereever the citizens being targeted could be seen as an easily sacrificed minority, then the Kings of France, Spain and Austria and the Pope who suported them joined right back into the fun of Catholic Murder squads roasting men alive and massacres of ethnic groups.

Do you think you could step back from your Protestant cocoon for a moment & buy an historical clue?

There was no shortage of Protestants killing people for the wrong kind of faith in European history, tradguy. You might want to look up what Calvin did to Michael Servetus. Or, what the British Crown did to the "recusants". Or, Cromwell to Ireland. Or, Luther & the Peasant Revolt. We were spared such blood on this side of the Atlantic in colonial times because the losers just picked up and moved to the territory next door (e.g. Anne Hutchinson & Rhode Island).

If you'd like to spread calumny against the Catholic Church, you might want to find a venue where folks don't know early modern European history. Which isn't here.


traditionalguy said...

Young Hegelian....Sorry about those Roman Catholic tactics not working. Real history hurts. But why don't the Popes say they are sorry about what they did instead of saying others did bad things too?

YoungHegelian said...

@tardguy

But why don't the Popes say they are sorry about what they did instead of saying others did bad things too?

The pope has apologized to the Jews, and has reached out to various protestant denominations (e.g. the Lutheran/Catholic dialogue).

My problem with you is that you simply refuse to face up to the fact that Protestantism has shed much blood in its history, too, and that in early modern Europe no state, Protestant or Catholic, had a problem with legally murdering a heretic.

This is not a question of what you think the modern Catholic Church owes you. These are questions of historical fact, and you seem determined to remain impervious to them.

Archilochus said...

Posner's dissent in Elmbrook School District v. Doe is even more biting.

https://www.au.org/files/2012-07-23%20(89)%20Opinion%20on%20rehearing%20en%20banc.pdf