Balkinization: The elephant in the room

As everyone knows, the Supreme Court issued an order allowing Wheaton College to refuse to submit written documentation to insurance carriers regarding its unwillingness to fund contraception. According to the Times' account, "The court’s majority said Wheaton College need not fill out the forms. Instead, the order said, the college could just notify the government in writing. The government, it said, remains free “to facilitate the provision of full contraceptive coverage.” This provoked a dissent from what the article describes as the "three female Justices." Similarly, in an editorial condemning the order, we read the following two sentences:

"But for the court’s male justices,[Hobby Lobby ittself] didn’t seem to go far enough.... This prompted an angry response from the three female justices — Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan."

Two comments: First, I may owe Justice Ginsburg an apology for suggesting that her dissent in Hobby Lobby adopted too sharp a tone and failed to recognize that the decision didn't represent falling skies. After the order, I'm more prone to wonder, though, on tactical grounds, I would still be predisposed to somewhat milder language. But it's a real judgment call, and it's hard to argue that she should have had any faith in the moderation of her colleagues.

The second comment refers to the quite obvious demographic elephant in the room that the Times simply fails to consider. They prefer to portray the cleavage in the Court as the guys against the gals. Presumably we can all accept the proposition that "male justices" are simply ignorant of the importance of contraception to planning one's own life, whereas, of course, "female justices" are vividly aware of such realities. No doubt there's something to this. But, quite obviously, the male Justice Breyer, is able to figure out its importance, so presumably something more is going on, for empirically-oriented Court watches, than mere gender. What might that be?

The Times and almost everyone else in the "mainstream media" (unlike, say, Katha Pollitt in The Nation), find it indelicate to refer to the majority as "five conservative Republican Catholics" and the dissenters in Hobby Lobby as "three Jews and a clearly less conservative Catholic than her male colleagues." Can it really be pure coincidence that the Hobby Lobby five are, without exception, conservative Catholics (and not merely conservative Republicans)? Or, for that matter, that the dissenters are not? To be sure, one can't explain most of the Supreme Court decisions by reference to religious background. The Court's viciously anti-labor decisions,dating back to the arrival of the militantly anti-labor Lewis Powell, have nothing at all to do with the majority's Roman Catholicism. Indeed, one can only wish that the majority had imbibed more of the Catholic Social Justice tradition when learning the catechism (or, for that matter, that they read some of Pope Francis's comments on the poor and realized that labor unions historically have had something to with bettering the plight of the poor and downtrodden). And I seriously doubt that religion has anything to do with explaining the Court's death penalty jurisprudence (if one wants to dignify it with that term), since, again, the Catholic Church institutionally is admirably skeptical about state killing as well as other forms of killing (including, as no doubt some of you will wish to inform me, abortion). But, of course, I doubt that gender explains many of the decisions either.

The point is that the Times, like many other commentators, apparently feels free at least on occasion to take note of gender and appointing presidents (the latter being especially prominent in stories about "inferior" courts where readers aren't expected to know such things), but never ever finds it relevant to note religion. But, of course, the very premise of Hobby Lobby is that religion is not simply pietism, the kind of thing one does in the privacy of one's home, church, synagogue, or mosque; instead, for millions of people, religion is an overarching way of looking at the world that influences how one acts in the world. I doubt that George W. Bush was being simply opportunistic when he named the Bible (and Jesus) as the most influential book in shaping his life, just as Bill Clinton had earlier proclaimed the centrality of his religious faith to shaping his politics. So if this is true for employers, legislators, and ven Presidents--or state governors like Ohio's John Kasich, who admirably supported Medicaid expansion in Ohio because he believed that as a (conservative) Christian, he had a duty to help the poor, even if he said the proper conservative things about how bad Obamacare is--then why should we think that judges, including members of the Supreme Court, are uniquely free from the influence of theological views that they might literally have begun learning as youngsters?

I leave open the possibility that we're better off as a society by adopting the willful blindness illustrated in the Times editorial. But maybe we're not. The paradox is that having a conversation bout the wisdom of the Times's practices in identifying judicial demographics would itself require recognizing the existence (and potential importance) of the elephant.

UPDATE: Whatever else may be meritorious or wrong about my post, I do think that a discussant below is absolutely correct in suggesting that Justice Kennedy is probably not best described as a "conservative Catholic" inasmuch as he has clearly been the leading advocate on the Court for the rights of gays and lesbians (and, I suspect, when the Court gets an appropriate case, the rights of transgendered persons as well). I would be curious if any prominent Catholic is identified with libertarianism as a systematic political theory, inasmuch as it really does require a disdain for community in favor of liberty (and what conservatives in the old days called "license").