It’s amazing how much a Supreme Court justice can get wrong in one answer. And how little that Supreme Court justice—an originalist at that—seems to know about the origins of our Constitution.
Justice Clarence Thomas spoke at Pepperdine Law School a few weeks ago. Pepperdine is of course a Christian school with a religious affirmation statement that says, “That God is revealed uniquely in Christ”—and Thomas fit right in.
In one short answer he managed to mangle the law on a critical issue, wade into a political fight, show how little originalism matters to judicial originalists, and denigrate nonreligious Americans, and specifically atheists. Here it is:
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To be fair, part of the problem was the question, which deliberately framed a nuanced point as religious bigotry. I’ve written about why senators not only can, but must, question nominees on their religion in certain circumstances. The question put to Thomas wasn’t about right or wrong, or even of the Constitution, it was a political argument designed to muzzle such questions in hopes of easing and paving a path to the Supreme Court for Amy Coney Barrett.
Thomas, a conservative Catholic like Barrett, picked up the cudgel and argued that religion is off limits as a topic while at the same time inadvertently stating precisely why these questions are important. Here’s the question and Thomas’s answer:
Q: “Are there instances in which the judge’s religious convictions should be taken into account when considering whether the judge is qualified?”
A: “I thought we got away from religious tests . . . I don’t think I know a single judge that had allowed religion to interfere with their jobs.”
Did you catch that? In his answer, Thomas tells us that certain questions touching on religion are important when that religion would, in Thomas’s words “interfere with their jobs.” If a judge, for instance, writes that her religious beliefs should trump her constitutional duty to impartially interpret the Constitution, senators have a duty to grill her on those statements. Incidentally, that is precisely what Barrett wrote. In criticizing Justice William Brennan’s statement that “there isn’t any obligation of our faith superior to [my oath to support the Constitution],” Barrett wrote that she could “not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty . . ..”
Any senator who would ignore such a statement would be shirking their responsibility to ensure that a nominee will uphold the Constitution.
The question missed the point. The issue is not whether the judge is unqualified because of her religious beliefs, but whether the judge views her constitutional duty as subordinated to her religious duty. Thomas’s admission that religion must not interfere with a judge’s job gives the lie to the poorly asked question.
Thomas is correct that religious tests are indeed a thing of the past. But it also seems that Thomas wants to revive them. Later in this same answer, he essentially argues that nonreligious Americans—non-Christian Americans, really—are unfit to enter the legal profession.
I think it’s interesting in a profession where we all take an oath, that they would look at people who have strong faith as somehow not good people, when, if you’re an atheist, what does an oath mean? If you are a Christian and you believe in god, what is an oath? . . . You’ve taken an oath to God. . . . [religion or faith] enhances your view of the oath.
This is not a savvy constitutional thought, but bigotry against the nonreligious. It’s religious bigotry in an answer decrying religious bigotry.
It’s also just plain wrong. Thomas’s veiled suggestion is that only religious oath-takers will honor their oaths. The question is not religion or nonreligion, but honesty or dishonesty—and religion is certainly no guarantee of honesty.
For an originalist like Thomas, the answer is particularly cringe-worthy. The only oath that appears in the Constitution is the presidential oath, which is not only not religious, but also allows for an affirmation rather than an oath. (The phrase “so help me God” does not appear in the oath and the modern tradition of adding the words didn’t regularly accompany the constitutionally prescribed oath until World War I.)
The founders eschewed religious oaths in our founding document because such oaths themselves amount to religious tests, which only serve to exclude the honest and principled: “Unprincipled and dishonest men will not hesitate to subscribe to any thing that may open the way for their advancement, and put them into a situation the better to execute their base and iniquitous designs. Honest men alone, therefore, however well qualified to serve the public, would be excluded by [a religious test or oath requirement], and their country be deprived of the benefit of their abilities.” That point was made during the Massachusetts ratifying convention . . . by a reverend, Daniel Shute. He wasn’t alone.
For someone who began his answer by lamenting religious tests for public office, Thomas’s preference for religious oaths to test someone’s fitness for public office was precisely the kind of thing the founders rejected when they drafted Article VI. That’s why the oath requirement appears just before the religious test ban.
To sum up, Thomas lamented senators imposing a religious test for office when they were simply ensuring that a judge would do her job, which Thomas admitted was important, then he turned around and suggested that Christians make better lawyers because they could pass one of the religious tests he claimed to oppose. We are truly in the age of Alternative Facts.
To conclude his answer, Thomas pontificated about the virtues of beginning each day on his knees, but the humility of believing that one has a direct line to the creator of the universe—and that all this vastness was created specifically for humans—will have to wait for another day. Whatever his theology gets wrong, Thomas himself ought to get the law right.