The Justice Who Wouldn't Be Lutheran: Toward Borrowing the Wisdom of Faith Traditions

Only a few legal scholars have attempted to work out what jurisprudence might look like if lawmakers and judges took their religious world-views seriously-and explicitly-in their work, in a way respectful of "the fact of pluralism." My task is to imagine the concrete case: what a judge's jurisprudence might look like if a judge considered the wisdom of his own religious tradition in constitutional cases. This article explores broad jurisprudential themes and specific First Amendment and social welfare opinions of Justice William Rehnquist, who for some years has been a member of a Lutheran congregation, my own denomination. While Justice Rehnquist's views have moderated over the years, and he has become known, partly through the impeachment inquiry, for a judicious temperament, I will make a modest case that in his jurisprudence, Justice Rehnquist does not take seriously central Lutheran understandings. Justice Rehnquist is somewhat of a foil here, for he is a good example-but far from the only one-of how a judge from a particular faith-tradition may find himself not reflecting elements of that tradition in his jurisprudence.

I think that Justice Rehnquist might be a better Justice if he were a better Lutheran justice. That is, his failure to deploy traditional Lutheran ethics to understand and speak to the American constitutional situation impoverishes the center of his own jurisprudence.