[Roger] Williams described the true church as a magnificent garden, unsullied and pure, resonant of Eden. The world he described as “the Wilderness,” a word with personal resonance for him. Then he used for the first time a phrase he would use again, a phrase that although not commonly attributed to him has echoed through American history. “[W]hen they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wildernes of the world,” he warned, “God hathe ever broke down the wall it selfe, removed the Candlestick, &c. and made his Garden a Wildernesse.”

He was saying that mixing church and state corrupted the church, that when one mixes religion and politics, one gets politics. … — John M. Berry, “God, Government and Roger Williams’ Big Idea,” SmithsonianJan. 2012.

Roger Williams, who is credited with coming up with the idea of a wall of separation between church and state, did so to protect the church from the state, and thus from the way politics has always been conducted. In the 1600s no less than today, the shabby compromises and personal favoritism of political life was believed to tarnish the church. And already the law was seen as a check on the arbitrary political power of the English king.

It’s worth remembering that before he came to Massachusetts and Rhode Island, Williams was a protege of Sir Edward Coke, who fought to keep the institutions of English common law independent of a king who insisted “the monarch is the law. Rex est lex loquens, the king is the law speaking.” Thus the independence of the church and the independence of the courts are both foundational to the American system of government.

So what court watchers like Dahlia Lithwick see as “unfettered and lucrative sucking up, lobbying, and currying of favor” with conservative justices of the U.S. Supreme Court is doubly alarming. Lithwick, who writes a legal affairs column for the online magazine Slate, has long been one of my favorite Washington reporters. She has a law degree from Stanford, she has covered the court for 20 years and she brings to it a well honed sense of ethics.

So when the New York Times reported in November that Justice Samuel Alito “told donors to a religiously motivated Supreme Court lobby organization that he would be authoring the opinion in Burwell v. Hobby Lobby, and that the religious objectors would be on the winning side of the case,” Lithwick wrote in Slate on Nov. 22 that the real violation was ethical. She suggested the leak itself, which Alito forcefully (and artfully) denied, hardly matters:

In other words, the leak is actually the very least of it—in part because nobody actually believes the court intends to police its leakers or even to investigate them. The New York Times piece about a massive influence network is the real travesty, without even a mention of the leak, and the fact that the wealthy donors didn’t secure special favors because the justices were already in the tank for their religious ideology doesn’t make this smell any better.

If anything, the spectacle of religious ideologues schmoozing like-minded Supreme Court justices like stereotypical Chicago ward heelers makes it smell even worse.

If Roger Williams were around to write op ed columns today, he might have said the world, the flesh and the devil hath broke down the hedge or wall of Separation between the Gardens of the Church and the Courts alike. I can practically hear him now: They hath made the Gardens a Wildernesse. And I can say that with some assurance because ithat is exactly what Roger Williams believed to be the case in the fourth century when Christianity became the official religion of the Roman Empire.

Interviewed by Alicia Menendez on her MSNBC show (embedded above), Michele Goodwin, author of Policing the Womb: Invisible Women and the Criminalization of Motherhood, also raised the issue what happens when religion, politics and shabby ethical standards are intertwined.

“There’s been very little enforcement of any kind of ethics norms at our Supreme Court [at 2:00],” Goodwin said. “And this is completely inconsistent with the standards that we even hold law students to […] Law students can’t even become practicing attorneys without passing a bar exam that is specifically with regard to ethics.”

Dahlia Lithwick, in her Nov. 22 column on the Hobby Lobby leak, returned to the same theme. The problem isn’t the leak, she said. It’s the culture of entitlement and special privilege surrounding the court:

The fact that some of the justices believe that “casual” and “social” relationships with lobbyists, activists, and interested parties who have business before the court are appropriate and acceptable is the problem, because it means they cannot be trusted to avoid such contacts. The problem is that the same justices who keep blaming their colleagues and the press and the American public for broad declining trust in the institution seem to have no comprehension of what kinds of behaviors appear to be inappropriate because they actually are inappropriate. Traffic court judges in towns with four stoplights know better than to drink and vacation and shoot with interested parties before them, much less set aside choice seats for big ticket cases. Evidently it’s different when the interested parties are rich.

Links and Citations

John M. Berry, “God, Government and Roger Williams’ Big Idea,” Smithsonian, Jan. 2012

Michele Goodwin, interview by Alicia Menendez, MSNBC, Nov. 21, 2022

Dahlia Lithwick, “The Real Problem With the Second Alleged Leak at the Court,” Slate, Nov. 22, 2022

[Revised and published Dec. 11, 2022]

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