I have long wondered why so many judges speak of “justice” as if they understood what the word meant. As I have observed at other times and in other ways, “I don’t do justice, I do law.” This brought me to another question: Does my ignorance of the meaning of “justice” arise from my lack of religious belief?
I want to be clear. I deeply admired the late Christopher Hitchens both for his writing and his courage. His book God Is Not Great: How Religion Poisons Everything (2007) impressed me. His contention that organised religion is “violent, irrational, intolerant, allied to racism, tribalism, and bigotry, invested in ignorance and hostile to free inquiry, contemptuous of women and coercive toward children” and that accordingly it “ought to have a great deal on its conscience” strikes me as historically and factually accurate. But, unlike Hitchens, I don’t claim to be an atheist–I don’t hate religion or have any need to deny it. I suppose you might call me an agnostic, but I don’t like that word very much either. Truth is, I don’t care about religion and I don’t think much about it. Never have. Thus, I shy away from descriptions about my lack of faith, not because I fear the consequences, but because such things bore me.
Back to my statement about “not doing justice” and instead doing law. Warren Urbom, perhaps the greatest federal trial judge of the 20th century, once asked me about that statement some months after I first made it to a group of federal public defenders. He came to see me in my office precisely because he was very troubled by what I had said. He was not critical of me, he simply wanted me to explain myself. I did my best, but I could see confusion written all over Warren’s gentle face. Remember, he wrote a great book entitled, “Called to Justice: The Life of a Federal Trial Judge (Law in the American West), University of Nebraska Press (October 1, 2012). For Warren, there was no distinction between law and justice. With his deep and abiding Methodist faith, he could not imagine it being otherwise. And that brings me to the point of this post.
Judges who claim to know justice are almost invariably men and women of faith. Now, I don’t mean to suggest that their faith dictates their legal opinions in any overt way. For example, I think it absurd to claim that the decision of a highly rational federal judge like Judge Urbom comes from the pages of a particular scripture. It is much more subtle. Like Warren, the religious judge strives for justice in all things and does so without thinking–it is as much a part of the judge as his or her DNA.
You ask: So what? Like Captain Obvious, the connection between religion and justice, so obvious to others, is a revelation to me. It helps me understand the certainty that so many great judges express when they write or speak about justice. It also explains why I shudder slightly at the thought.