Is Religious Devotion Consistent with Good Judging?

David G. Campbell is a Senior United States District Judge for the District of Arizona

During the confirmation hearing for Supreme Court Justice Amy Coney Barrett, Senator Diane Feinstein expressed a “very uncomfortable feeling” about the nominee’s religious devotion, observing that “the dogma lives loudly within you.” Senator Feinstein in effect asked whether a religiously devout person can serve as a truly fair and neutral judge. She seemed to fear that a judge’s devotion to religious doctrine will invariably override all other considerations—that religious dogma will prevail over the rule of law.

Many decried the Senator’s statement as religious discrimination, noting, among other things, that Article VI of the Constitution expressly forbids any religious test for public office. But the Senator’s question should not simply be dismissed as anti-religious animus. For those who believe in adherence to the rule of law, her question is relevant.  Few would argue that judges should be free to impose their religious views through their judicial decisions. To the extent this is the focus of Senator Feinstein’s concern, it deserves thoughtful responses.


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What South Africa Doesn’t Need in a New Chief Justice: One Who Will Bring Religion into the Public Sphere

Christine M. Venter is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame

South Africa’s young democracy is in crisis. Riots and looting, high unemployment, charges of corruption and cronyism against the former president, and an inability to transform the economy to make it more equitable, have all led to people losing faith in the government. Despite those challenges, the legal system has remained in relatively high regard. The courts, and in particular, the Constitutional Court, have distinguished themselves by administering justice in a manner consistent with the values of the new Constitution, as well as international human rights norms. By recently ordering the arrest and imprisonment of former President, Jacob Zuma, for contempt of court, the Constitutional Court has sent the important message that the law will be applied in an impartial manner and that no one is above the law.

However, for people to retain their faith in the legal system, and in the Constitutional Court in particular, the justices themselves must be above reproach and must conduct themselves in a manner that sustains confidence in the Court. To do so, at a minimum, they must comport themselves with the Code of Judicial Conduct, which requires judges, among other prohibitions, to refrain from being involved in any political activity, any activities which practice discrimination, or which call their impartiality into question. Generally, this has been the case, even while justices have come and gone. The Constitutional Court justices are appointed for twelve year terms and not for life, unlike the justices of the U.S. Supreme Court. But recent speeches and comments by the current Chief Justice, Mogoeng Mogoeng, have posed a threat to the credibility of the Court and its members.


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Mr. Justice Brian Walsh, the Natural Law, and Irish Catholicism

Dr. David Kenny is Associate Professor of Law and Fellow at Trinity College Dublin

Ask any lawyer, judge, law student, or legal academic in Ireland to draw up a list of Ireland’s great judges, and one name is guaranteed to appear: Mr. Justice Brian Walsh. Sitting on the Irish Supreme Court in the heyday of its activist period in the 1960s, 1970s, and 1980s, Walsh’s fingerprints are on many of the Court’s most important and innovative constitutional judgments [1]. A pioneer of unenumerated (or implied) constitutional rights—recognizing, amongst other things, a trailblazing right to privacy—Walsh’s innovative jurisprudence was transformational in Irish constitutional law.

A friend and correspondent of famed U.S. Supreme Court Justice William Brennan [2], Walsh—alongside colleagues like Seamus Henchy and Cearbhall Ó Dálaigh—developed Irish constitutional jurisprudence in a manner not dissimilar to the Warren Court in its heyday. His influence echoes still, even after more cautious courts in the 1990s and 2000s resiled from some of the more innovative elements of this period of constitutional expansion. Perhaps, as leading academic and current Supreme Court Judge Gerard Hogan has argued, Walsh’s constitutional vision, even if a good reading of the text, was simply too radical for judges largely wedded to the common law tradition [3].


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