here & there:

Religion and the judiciary

posted by Jake Alter

In The Guardian, Aidan O’Neill discusses the role of religion in the American and British Supreme Courts:

The socio-cultural reasons for the disappearance of the male WASP from the US Supreme Court are difficult to pin-point precisely; and what its significance might be is again hard to discern. Indeed, for some it is thought indecorous even to allude to the religious/cultural background of any the justices. On this view the very taking of the judicial oath involves newly appointed judges wholly disencumbering themselves of their past individual cultural baggage, and assuming for the future a wholly objective approach to the law, untainted by considerations of where they came from and how they got from there. Thus, a wise Latina from the barrios should reach precisely the same decision for the same reasons as a prudent country club WASP. Since justice is blind, one can and should be blind to the justices. At the same time there are some tensions with this view. In his essay “The Supreme Court Phalanx” first published in (2007) 54 New York Review of Books, (Number 14, 27 September 2007) and re-published as Chapter 4 of his The Supreme Court Phalanx: the court’s new right-wing bloc (New York: New York Review Books, 2008) at 47-48) Professor Ronald Dworkin, in his fury at many of the decisions emanating from these first five years of the Roberts court, has described the five Catholic male justices to constitute a “right wing phalanx … guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance”.

The dominant, indeed almost universal, approach to date in the UK has been to pay no heed whatsoever to the religious and/or cultural background of those who are appointed to the Bench, albeit that the Jewish Chronicle reports in brief that the appointment of Sir John Dyson to the UK Supreme Court to fill the vacancy created by Lord Neuberger’s appointment as Master of the Rolls maintains the number of Jewish justices on the court at four. But in Locabail (UK) Ltd v Bayfield Properties Ltd and another, a specially convened Court of Appeal bench [. . .] stated that:

“We cannot … conceive of circumstances in which an objection [of apparent judicial bias] could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.”

The bench was emphatic that a judge’s particular religious convictions or cultural background or associations would not and should not be thought to influence his or her decisions on matters of law [. . .] holding that a Court of Session judge’s public membership of the pro-Israel lobbying group the “International Association of Jewish Lawyers and Jurists” was insufficient to make out a claim of apparent bias in the judge’s upholding of a lower court’s refusal of asylum to a Palestinian activist.

Read the full article here.

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