It is funny to see conservatives rushing to support Supreme Court Justice Samuel Alito who told an Italian-American lawyers’ gathering that he is tired of hearing people question the fact that six of the nine current justices on the Supreme Court are Roman Catholic as if there was something wrong with that fact. Just five minutes ago these same conservatives were extolling the Catholic difference. Alas.
In the AP story linked above, someone whose judgment I value, Notre Dame law prof Rick Garnett, said, "It's not the calling of a Catholic judge to enforce the teachings of the faith. It's the calling of a Catholic judge, as well as he or she can, to interpret and apply the laws of the political community." Garnett is a careful thinker with a careful mind, but others less careful tend to see the estuary where religion and politics meet not as a place to swim carefully but as a place to make a splash. Catholic conservatives are quick to denounce Catholic public officials who do not echo their thoughts about how one does or does not legislate regarding abortion policy. And, yes, there is a difference between making judgments about the morality of abortion and making judgments about how, in this pluralistic society at this historical moment, one should legislate on the subject. And, no that difference is not as wide as some liberals think, but it is not as narrow as some conservatives think either.
But, why should judges get a pass? There is a variety of conservative thought about the role of a judge that sees them essentially as a computer. You put in the Constitution, add the facts of the case, hit "enter" and the decision pops out. But, that is not how Constitutional interpretation works. (It is also not how computers work as I am reminded every time Microsoft Word automatically turns the "e" in episcopal into an upper-case "E" and I have to go back and correct it.) Those who argue that judges must follow "the original intent" of the Founders overlook the historical fact that different Founders read the Constitution differently themselves, as evidenced by the fact that they immediately fell into two different political parties.
But, what about this Catholic difference? It is worth remembering that Justice Scalia, for example, does not say that he opposes Roe v. Wade because it misunderstands the rights of the human person. He objects to the decision because it removed the issue from the jurisdiction of the states. The U.S. Constitution, which has become an idol for people like Princeton Professor Robert George, got many things wrong, including the decision to consider black Americans not as humans but as property. Right or wrong, it clearly states that citizens are "born" or naturalized. Life may begin at conception but citizenship does not and the Court only concerns itself with the rights of citizens. That, at least, is Scalia’s position.
I actually think Catholicism should make a difference, that the difference should be debatable without charges of bigotry flying, and that our entire society would benefit from asking candidates, and judicial nominees, to explain how their faith informs and influences their decision-making. I am tired of the kabuki dance aspect of Senate confirmation hearings for judicial nominees. I do not expect a candidate or a nominee to be a theologian, but it turns out when you consider that all five of the members of the conservative majority on the Court are Catholic, it is hard to attribute that entirely to coincidence. I would hope that a Catholic would see, and see easily, why the view of freedom articulated in Planned Parenthood v. Casey is wrong. I would hope a Catholic would have a different sense of personhood than a non-Catholic.
Being Catholic, however, is no more of a computer program than original intent. The presence of Justice Sonia Sotomayor, a Catholic who will probably not always agree with the other RCs on the bench, proves that being Catholic is not the only difference that matters, nor does being Catholic affect all of our decisions in life. I applaud Pope Benedict’s call for Catholics to see their political commitments in an integral fashion. But, I also recall a Far Side cartoon in which a woman has brought her broken vacuum cleaner to the repairman, and she looks frustrated and bewildered when the repairman, instead of fixing it, lays hands on the vacuum and cries, "Demons, come out!" There are times when secularization is a blessing.
Where to draw the line? I can’t tell you in the abstract and, besides, we each have to figure out where we want to draw the line, or better, where our conscience tells us we must draw the line. It is good to recall the remarks of Judge Noonan at Notre Dame, where he gave the address reserved for the winner of the Laetare award, which had been declined by his good friend Mary Ann Glendon. Noonan said, "One friend is not here today, whose absence I regret. By a lonely, courageous, and conscientious choice she declined the honor she deserved. I respect her decision. At the same time, I am here to confirm that all consciences are not the same; that we can recognize great goodness in our nation’s president without defending all of his multitudinous decisions; and that we can rejoice on this wholly happy occasion." I think the key phrase is "all consciences are not the same." Or, perhaps we can say that even well informed Catholic consciences can reach different conclusions.
After all, in his famous sermon at his Mass of Installation, Pope John Paul II read through a litany of places where we should "Be Not Afraid: Open Wide the Doors to Christ!" He said we were to open the doors of culture and the doors of our hearts to Christ. But, he also said, "Open wide the doors of State!" and here we Americans all shifted in our chairs. The First Amendment shut that door, no? We Catholics, qua Catholics, can shut no doors in our life to Christ. But, we Catholics will not all open those doors in the same sequence or at the same time, nor will those doors all lead to the same room. There is diversity within the Church as well as outside it.
So, I disagree with Justice Alito. I am sure that for some, questioning the presence of so many Catholics on the High Court is an instance of anti-Catholic bigotry. But, it is worth asking – it is always worth asking – what difference does it make to us to be Catholic. First Peter says we are always to be prepared to give an account of the hope that is within us. That applies to Judge Alito and Judge Sotomayor. But, they are allowed to have different hopes and, therein, lies the murky, wonderful, human way we must make our way through as disciples.