The Religious Radicalization of the Supreme Court | Crooked Media
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September 25, 2020
Unholier Than Thou
The Religious Radicalization of the Supreme Court

In This Episode

In light of the tragic passing of Ruth Bader Ginsburg, Phill invites Jenny Pizer of Lambda Legal to speak to the power RBG held on the Supreme Court and to discuss how the religious right is attempting to codify powers in the US through Trump’s potential nominee. We also hear how faith can guide judges without imposing on their rulings and how Jenny herself handles her relationship to faith.







Phillip Picardi: From Crooked Media, this is Unholier Than Thou. I’m your host, Phillip Picardi. Last week, we mourned the loss of Supreme Court Justice Ruth Bader Ginsburg, who passed away on Rosh Hashanah.


[news clip] The U.S. Supreme Court Justice Ruth Bader Ginsburg has died. A statement released by the court said the 87-year old died of pancreatic cancer at her home in Washington.


Phillip Picardi: Unfortunately, the mourning process was cut short, impeded by the inevitable political chess game. Practically immediately after the news of her death was confirmed, Republicans sprung into action. Religion plays a big role in the Supreme Court, despite the American belief in the so-called separation of church and state. And the Catholic faith in three of the rumored front-running nominees has raised eyebrows and alarms from legal experts looking to protect and expand reproductive justice, LGBTQ equality, voting rights, immigration rights, labor rights and more. To get a better sense of how religion works among our existing Supreme Court judges and what’s at stake with yet another Trump appointee, I spoke to Jenny Pizer, the Law and Policy director for Lambda Legal.


Phillip Picardi: Jenny, thanks for joining me today.


Jenny Pizer: My pleasure.


Phillip Picardi: Last Friday, obviously, we heard the terrible news that Ruth Bader Ginsburg had passed. And I was just wondering if you could maybe share some of your reactions or your feelings in the wake of her passing.


Jenny Pizer: Well, it’s just an immeasurably enormous loss. And like many of us, you know, I identify as a Jewish woman lawyer dedicated to advancing civil rights and in particular, gender equality and the limits imposed on people of all genders based on gender stereotypes. She was such an inspiration for so many reasons. And of course, given her age and her health battles, it, I can’t say that it was a surprise. But still, it was a surprise.


Phillip Picardi: I mean, yeah, that’s what I was very taken by in the wake of her passing, that there was so much resting on this one woman. And I know that she had big shoulders. You know, I know that she in so many ways was capable of carrying this burden. But it really it felt like an outsized burden to place on one person to just hold out for as long as we could in order to keep the balance of justice in this country. And it did strike me that in the immediate wake of her passing, you know, everyone was speculating about the future of the country and the future of justice in this country. So at the risk of following that, you know, slightly uncouth pattern, I’m wondering if you can articulate as a lawyer what’s at stake here with Trump appointing a new nominee.


Jenny Pizer: There’s been a process, a dedicated political campaign going back decades—some say, since Roe v. Wade in 1973, others say since Brown v. Board of Education in 1954—but to push the court to the right, and to change the court from an institution dedicated to protecting minority rights and individual freedom from oppressive, powerful interests. OK, so this is, this is an extraordinary moment of potential dramatic shift, or one might say solidification of this push. But it’s been going on for decades and that things have shifted or potentially shifted based, based on the loss of one person, but that’s also because of Mitch McConnell and members of the Senate breaking the process and making it into a raw political process that has been about since Trump was elected, sending in essentially busloads of extreme young conservatives to stack the federal bench. We have now more than 200 Trump appointees confirmed to the federal bench. So this is a moment of extreme drama and potential shift, but it’s a culmination of a process that has been politicized and then really broken for decades and most recently for the past almost four years. And what’s at stake is, let’s just say everything, OK? Because what we’ve been seeing are decisions in the areas of voting rights, and religious rights being expanded to the exclusion of other things, and rights of free speech that are really about defeating various types of regulations. And really we need to go on and on. I mean, right now, the Affordable Care Act that’s been under sustained attack by Republicans and the Trump administration, well, it’s before the court. It’s going to be argued right after the election and the arguments being made, if they’re accepted, would kill the Affordable Care Act, in the middle of a pandemic. So that’s one example, but there are so many others and we can go through them. But I, I really can’t overstate the ability of an ultra-conservative six-vote majority on the Supreme Court to kill civil rights legislation and make a lot of other changes in our laws that will affect all of us in so many different ways.


Phillip Picardi: And one of the things that’s come up with this potential new appointee, this Trump appointee, is this idea of religious conservativism, right? That the religious right has been rallying behind Trump because they believe that he will abolish Roe v. Wade, because they believe that his appointments to the bench are actually more important than his alleged, you know, religious hypocrisy. So I’m wondering what role religion plays with this potential nominee and what kinds of motives the religious right has in accomplishing this imbalance on the Supreme Court.


Jenny Pizer: Well, let’s start by recognizing that conservative and conservatism really is not the appropriate word for what is being done here. I mean, conservative, you know, is to maintain things, to have stability. And what is being pursued by the religious right and has been now for decades is radical. The changes in law that are being sought by some of the organizations, and at Lambda Legal, we litigate against them a lot—there are these Christian-identified religious legal groups that have been the teaching grounds and the training grounds for many of the judges who have been put on the federal bench by Trump and some of the folks that are identified as being on the short list as potential successors to Justice Ginsburg, which is such a travesty. But they are women whose jurisprudence is really the opposite of Justice Ginsburg. So there’s a kind of almost mocking of the process in how some of these selections have been made. But let’s just talk for a minute about the legal arguments on behalf of religion that we’ve been seeing for years now, but some of them have really been ripening in the Supreme Court and they’re very dangerous. They’re very dangerous to a religiously pluralistic society that is supposed to have separation between church and state. So examples are the idea, and this is the familiar one, somebody engaged in business that doesn’t want to sell to same-sex couples, who makes a religious argument that they object to who the customer is and so they shouldn’t have to sell, for example, a wedding cake or flowers for a wedding. And that may seem trivial, but the point is, if that legal argument prevails, as was at issue in the Masterpiece Cake Shop case of a couple of years ago, well, that argument can apply just as well, regardless of what the goods or services might be, and regardless of whether the objection is to sexual orientation or race or national origin or anything covered by civil rights laws. Itt’s a kind of, I mean, the Trojan horse metaphor is a little overused, but the stakes are much higher than what it might seem when we’re talking. We’re not really arguing about cake, we’re arguing about equal treatment in the marketplace. And that’s just one example, right?


Phillip Picardi: Well, it’s a great example because the right had framed that argument as an issue of religious freedom. And then LGBTQ groups, including Lambda Legal, had to rush to correct the media from parroting those talking points to say this isn’t about religious freedom, right?


Jenny Pizer: Well, it’s about religious freedom, but religious freedom has always had limits and it has to have limits. I mean, we don’t allow an eye for an eye in this country. We don’t we don’t cut off people’s hands for stealing. I mean, there are all sorts of of ideas—and I’m being a little, you know, silly and facetious when I use those examples, but human history is filled with examples of tragic mistreatment of other people based on sincere religious convictions. The rules we have in this country are that people are free to believe however they may believe, but not to act based on those beliefs when it will hurt other people in various ways that we have recognized in law. So it’s freedom of religion, it’s also freedom from religion and that’s the part that gets lost sometimes in the conversation.


Phillip Picardi: Well, speaking of freedom from religion, one of the people who’s been widely speculated to be the Trump appointee is a woman named Amy Coney Barrett. And there have been just scores of think pieces and speculation about Miss Barrett and obviously her Catholicism. Before we get into her religion, speaking of separation of church and state, I’m wondering if you can tell us what we may need or what we want to know about her.


Jenny Pizer: Well, I will say, actually, the top three contenders, as far as we know publicly, for this particular nomination are all Catholic women. And Judge Barrett has been on the top of the list and received the most discussion because she’s been a favorite of the religious right. She now sits on the Seventh Circuit Court of Appeals, so that’s a part of the Midwest. Among the parts of her jurisprudence that cause us the greatest concern is she divides, and she’s written scholarly work about this—she used to be a law professor at Notre Dame—she’s written scholarly papers distinguishing between precedence and super precedents, which is an interesting idea. But she doesn’t tell us which precedents might fall into which category. And the implied idea in there is that some precedents are not to be taken that seriously. And given some of her writings about her Catholic beliefs and in particular her very strong anti-abortion views, we can at least infer that she would not consider Roe v. Wade to be an important precedent. But there’s others that, of course, we’re concerned about too. The Obergefell v. Hodges, marriage equality decision was decided five to four. I think the country considers it a settled precedent and the analysis underneath it was based on many other settled precedents, but we would certainly be concerned that she would not consider that one a settled precedent either. You know, there was some awkward back and forth when she was being considered for the 7th Circuit when Senator Feinstein tried to probe her about how she sees her Catholic faith affecting how she judges cases and it became awkward because she objected and some senators bristled at the idea that that question would be asked. But she has spoken publicly about seeing her role as a lawyer, a law professor, and all of her legal work, which, of course, would include judging, as being about her Catholic faith and ultimate goal of access to heaven. And, you know, that can be really alarming. I mean, we’re a secular society supposedly, many people don’t share her religious views. The job of a judge is supposed to be to apply the secular law that we all agree to, not religious laws and religious tenets.


Phillip Picardi: Right. And I think that’s why I sort of bristled myself when I read different think pieces or—gosh, tweets, I guess we can call them—from Catholic people who are begging people not to criticize Amy Barrett because of her Catholicism. You know, on the one hand, I, I hear that, right? I hear that we obviously should not be discriminating against anyone because of their religion. On the other, if your perspective of justice is informed by your religion and that religion has a history of discriminating against and marginalizing LGBTQ people, people of color, indigenous people—I mean, how do we divorce those things? How can we divorce those things?


Jenny Pizer: Well, I guess I would look at it this way. I think, you know, many people of deep faith, of different faiths find their notions of justice in the religious teachings. And those notions of justice can be all kinds of things. I mean, certainly Justice Brennan, who we all miss, was a devout Catholic, that affected how he understood his role as a judge and notions of justice. They included the idea that women’s moral agency to decide whether or not to continue a pregnancy and bring another child into the world, he respected women’s moral views and autonomy and was a supporter of reproductive choice. And so I think the idea is not if a person ascribes to this religion or that religion, as much as how do they think about justice. So Judge Berret, just like Judge Rushing, who also is on the short list of potential nominees, have been very involved with an organization called the Alliance Defending Freedom, which is a self-identified, they identify themselves as Christian fundamentalist legal group. We are interacting with them, shall I say, in court kind of constantly, because their mission is to expand religious freedom in ways that defeat LGBTQ civil rights and various other things. So the issue, I think, is not Catholicism per se, but what type of work, have these lawyers and then judges been involved with? What have their goals been, how have they understood the law? That’s what tells us that their views are extreme, that they’re not conservatives, they’re radicals, and that if they, if either of these judges were to be elevated, it would be deeply alarming. We know a lot less from the third person who’s seen—we’ll see if it’s true—but seen as as being a top contender for that pick, which is Judge Lagoa of the 11th Circuit, the Cuban-American woman who also identifies as Catholic and was raised Catholic. We haven’t seen as much of what her views are. We don’t know. She hasn’t been involved in the religious right legal movement the same way that the two others have been. So there’s less information about her. That might mean she might have a leg up, as well as the fact that she’s from Florida, when Trump makes his selection. I don’t know.


Phillip Picardi: More from this conversation after the break.


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Phillip Picardi: It’s just interesting because in the wake of Ruth Bader Ginsburg death, many people were talking about her Judaism as a force of good in terms of her legal decisions. But on the one hand, we have the same group of people decrying Judge Barrett and the other nominees for being Catholic and celebrating RBG for her Judaism. And it did feel a little bit confusing in that moment. Do you hear what I’m saying at all?


Jenny Pizer: Yeah, I do. I do. It’s interesting, I think human beings we find are our strength, our inspiration in different places. And I think for me, the thing to remember is that many religious traditions have fundamentalist or orthodox schools that are rigid, that tell people how to live and behave, and some of them have beliefs that negate us as LGBTQ, as as queer and trans people. They have particular ideas of gender roles and they tend to be patriarchal and they can be very harsh places for people who are different, whatever the difference may be. But especially if they’re gender-related differences, they can be very harsh. And some of those religious traditions have much more progressive wings, if you, if we call it that, that can be very active in social justice movements and can be inspiring and can have a broad sense, an inclusive sense of justice, and a command that each of us work to do justice in the Jewish tradition. We talk of the obligation to help heal the world. So it depends what the inspiration is. It’s not just a label as much as let’s, let’s look at what’s in that box. Let’s not assume from the outside of the box that we know one way or the other.


Phillip Picardi: Right. And yeah, you could easily say, as you pointed out already, about another Catholic judge, you could easily say the same thing of Catholicism, that there are many ways to find positive and progressive principles of justice within the Catholic teachings or within the teachings of Jesus. You know, so I guess it it really does depend on how this person has exercised their faith in the past, rather than just making blanket statements about any one faith in particular.


Jenny Pizer: Well, and let’s note in this conversation that Justice Sotomayor identifies as Catholic and her—.


Phillip Picardi: There you go!


Jenny Pizer: Her jurisprudence is is very different from, say, Justice Thomas’s understanding of Catholicism. The other thing that we’ve seen in recent years is that with this ideological goal, that some have had to change the courts from forums that are there to vindicate constitutional rights of various types into, you know, to shut down the branch of government that drove racial desegregation and recognizing women’s rights and have recognized other rights of minorities, including LGBT rights. You know, the goal to shut that down was about a particular ideology. And so previously we had people on the bench who evolved in their thinking. Justice Blackmun, for example, was appointed by a Republican, he identified as a Republican. Over his years on the Supreme Court, partly because the court changed, he then was eventually seen as one of the most liberal members, and he was the author of the lead opinion in Roe v. Wade. But when people have been selected for ideological goals and immersion in a religious political movement, as we see with Judge Barrett and Judge Rushing in particular and Justice Kavanaugh, for example, and Justice Gorsuch, it’s much less likely that they will evolve over time because they were chosen for commitment to a particular ideology of turning the clock back. Or maybe it’s not turning the clock back, maybe it’s turning it forward to a kind of embedding theocracy in the law that, to our point of view, is very scary, if not terrifying.


Phillip Picardi: Yes, that’s exactly it. I keep on coming back to this idea. And, you know, recently, Steve Bannon, who’s just awful on every count imaginable, said that Republicans go for head blows and Democrats show up with pillows for a pillow fight. And I can’t think of a more apt metaphor for our current state of politics. Sometimes it feels like Democrats are willing, or progressive people are willing to hold onto these ideals of what America is or what a democracy is, while there is another wing of the opposite party who is sort of doing the very opposite, who’s playing by, I guess, a different set of rules. All of that is to say, and I hate to sound cynical, but we’ve talked about the religious affiliations of different judges throughout this conversation. We’ve also talked about the importance of the alleged separation of church and state. I just don’t understand how we are still talking about separation of church and state when we see so clearly that many of these justices do not exercise separation of church and state at all, and that, in fact, we do believe that their faith informs their decisions about justice.


Jenny Pizer: Well, you’re exactly right. And we haven’t even touched on some of the recent decisions that really change the meaning of the establishment clause. We’ve talked about the free exercise of religion clause, but its sibling is the establishment clause that is supposed to prevent, that is supposed to represent this wall of separation between church and state. And recent decisions about money from this court have struck down rules that limited taxpayer money going into religious organizations. These were state rules that have been on the books for a long time saying taxpayer money cannot go to churches, cannot go to religious schools that are about promoting religion, that we as citizens must not be required to give our money to pay for the promotion of other people’s faith. That we should be free to practice our own faith and build our own faith institutions, but not have our own purses taken to fund other people’s churches. And this Supreme Court in recent times has been issuing decisions step by step, striking down state restrictions on using taxpayer money to fund religious institutions—that is churches specifically and religious schools—while at the same time expanding the right of religious schools. This was a couple of decisions that just came down to ignore civil rights laws that protect their teachers, basically saying, well, a religious school can decide that all of their teachers are really ministers and churches, religious institutions are entitled to pick their ministers so none of those teachers have any federal civil rights protection anymore. And a couple of the justices would have made it much broader to say any faith-based institution, if it’s a Catholic hospital or social service agencies, they should be able to designate all of their employees as ministers doing their work in keeping with the faith and therefore, none of those workers should have civil rights protection, even while they’re arguing at the same time that they should have a claim on our tax dollars. That’s an issue that is in front of the court this coming term. It’s going to be argued in front of the court, actually the day after the election, about whether Catholic Social Services can demand a contract to do child welfare work while ignoring the city of Philadelphia’s nondiscrimination law that protects LGBT people and same sex couples in particular. So we are in an intense cauldron on these issues. The stakes are really high. And, you know, we call this out and I think many people realize that this is a fight that’s been going on for quite a while, but I want to say in response to your question about how do Democrats seem to fight, how do Republicans seem to fight? I mean, Lambda Legal is nonpartisan, let me say.


Phillip Picardi: Yes, yep.


Jenny Pizer: But I think part of the you know, part of the reality is that the Democrats believe in institutions, you know, believe in the importance of having rules that everyone has to follow that that protect people against abuses of power by those who have power. So regulations, and we all play by the same rules and it makes it fairer. What we’re seeing in the current Republican Party, Mitch McConnell running the Senate in particular, and the Trump administration, is aggressive, you know, no limits, exercise of power: people who have power wanting more power, changing voting rules, gerrymandering, ignoring long-settled rules—including rules like we don’t have the federal military called out on peaceful protesters. So it is a different understanding of what democracy is supposed to be and whether people have to follow the rules or not, or whether it’s just raw exercise of power.


Phillip Picardi: All of this makes, you know, it makes sense. It also makes me want to puke because there’s this overwhelming feeling, right, that like regardless of what we think about our faiths and regardless of what we think about what’s going to happen in November, there is just such an overwhelming feeling with the judiciary that all of this damage has already been done, and like what can possibly be done to reverse it? And are we only just beginning to see the impacts of this on our country and on our legal system? Do you know what I mean? Like, I don’t even know what I’m asking you. I guess I’m asking how do you go to work every day? Like, what is this, how do you deal with this feeling of despondency? How do you fight it?


Jenny Pizer: Well, we have to fight it. So I would say, yes, it’s perfectly understandable, and I share the feeling of nausea and being overwhelmed, being disgusted, appalled and overwhelmed, but then we have to take all those feelings and put them into action, that we have to fight for this democracy if we want to keep it. I mean, that’s a phrase that goes back to the very founding of the country. It was a republic, but only if we can keep it. And we’ve had moments of crisis before. And I think, you know, as Americans, we are taught—some of us anyway—a rose-ification of our history that Black Americans and Asian-Americans—different groups of people at different points in our history have experienced gross injustice. And those injustices often are not taught in vivid color, shall we say, and so there are lessons of history that we need to really focus on and put into action. We still have voting, even though we can expect a gigantic mess come November. We need to all participate in all the ways that we can. We need to not take this sitting down. I mean, some of us, Lambda Legal, we’ve been talking about the importance of the courts for a very long time, but many folks have been complacent, even as the religious right has been focusing on the courts for decades now. Well, folks are waking up now and there are definitely proposals being discussed about what might be done about the courts down the line. But before corrective measures of any sort will be possible, there needs to be an uprising and an engagement by the American public to say, actually, we want to have a responsive democracy. We don’t want to have this gross distortion where the American people can vote by millions of votes for one candidate, and another candidate is installed. Or where in Florida, a group of people is re-enfranchised by the popular vote, by an amendment to the Florida Constitution, and then an unrepresentative legislature puts new rules in place to disenfranchise those folks. Again, Judge Lagoa, who’s one of the contenders for the Supreme Court seat, was among the judges who upheld those rules to keep those people from voting. So there’s been trickery, there’s been cheating, there’s been a lot of interference with the way the process is supposed to work. We need to get out of our chairs. And if we want this democracy, we have to fight for it. I mean, the majority of people, really a large majority of the American public, does not want the policies that the Republican Party has been standing for. We want gun control. We want environmental protection. We want civil rights. We want the Affordable Care Act.


Phillip Picardi: We want we want abortion access.


Jenny Pizer: We absolutely do. We absolutely do. Support for reproductive freedom has been solid for decades.


Phillip Picardi: Yes. The majority of Americans support it.


Jenny Pizer: That’s absolutely right. And a super majority of Americans at this point support marriage equality, and does not support the idea that people operating businesses can pick and choose their customers and turn people away based on the business owners’ religious beliefs about who should be served and who shouldn’t be served. I mean, the American public does not support that kind of discrimination. So if we want a society that’s consistent with our beliefs, we have to fight for it.


Phillip Picardi: I mean, I love what you’re saying because it’s a reminder that despite what we’re reading in the news, which literally makes you, I don’t even know what to move to Canada—I don’t even know what I would do in Canada, but I’ve been thinking about it. But despite all of the news that we’re reading, what you’re saying is this is a governmental thing. This is people in power and the religious right who represent a minority of Americans who are enacting and enforcing a very particular agenda, whereas the majority of Americans do not share these views. So while it may be happening in the government, the majority of the people in this country don’t agree with it. And I guess we have to, we really have to hold on to that, that we you know—God, for lack of a better phrase—it’s we the people may baby. You know what I mean?


Jenny Pizer: Well, that’s exactly right. And there are things that we can do. I mean, we we know that elections these days tend to come down to the votes in particular states that are closely divided. And it doesn’t do that much good for people, those of us who are lucky enough to live in California, to call Senate offices for other state—they don’t care. But if we know people that live in other states, we need to be calling them and making sure people vote and telling them to call their senators to say what’s going on right now, the calls to jam another lifetime appointment to the Supreme Court in that would be grossly unrepresentative of the people—that’s not OK, and if you continue to be craven Trump apologist and approve this hypocritical process, you’re going to lose your job. I mean, it really is the people in these particular states who have the ability to communicate to their senators, if you want to keep your job, distance yourself from Trump and McConnell and don’t do this to us, it’s not OK with us and we’re going to make our voices heard. And if you want to keep your job, you better listen to us.


Phillip Picardi: Well, listen, I mean, I want to close on a continued dose of optimism, which you have graciously given to me today. You know, we’ve talked about the religious affiliations and the religious beliefs of many lawyers on this call today, lawyers and judges, and I’m wondering what your faith tells you about this ongoing fight for justice, if your faith is giving you any resolve to keep up the good fight?


Jenny Pizer: Well, I think of myself as you know, one of these secular Jews raised, I was raised by scientists with a commitment that it is our our job in the Jewish tradition to do our best, to do justice and to heal the world. And I’m taking a lesson from Justice Ginsburg, who said it’s very important to listen to the people that disagree with you and try to understand why they believe what they believe, and then you’re better situated to try to reach them with your view of the world and to find the places where you agree and work from there. I think that’s in keeping with the best religious traditions, the best faith traditions, and the best American constitutional traditions. And so that’s how I’m going about my work.


Phillip Picardi: I appreciate that a lot. Thank you for sharing that. And thank you so much for being with me today. I really appreciate it.


Jenny Pizer: It was a true pleasure.


Phillip Picardi: That’s all for our show today. If you liked what you hear, please like and subscribe, leave a review, tell your pastor or rabbi—or your lawyer—and follow me on Twitter, at your own risk. We’ll see you for whatever fresh hell comes next week.


Unholier Than Thou is a Crooked Media production. Alysa Gutierrez is our producer, with production support from Reuben Davis. The theme song is by Taka Yasuzawa, and the show is executive produced by me, Lyra Smith and Sara Geismer.  Thanks for listening.