Too Many Catholics on the Court?

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.

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9 years 3 months ago
"The U.S. many things wrong, including the decision to consider black Americans not as humans but as property."
The difference is that after the Civil War the constitution was changed with three Amendments to the Constitution.  With abortion the constitution was changed by judicial fiat.  I am sure that Alito would agree that the constitution got the slavery issue wrong and I am sure that he would agree that Amendments were the best way to rectify that situation.  He would also agree that the judicial fiat in the Dred Scott case prior to the civil war was also wrong.
Brian Thompson
9 years 3 months ago
It's not that there are too many Catholics on the Court, obviously that is not the case as there was no real concern raised in this regard over Justice Sotomayor's nomination. The real problem facing the High Court today is that there are too many of the wrong sort of Catholics on the Supreme Court.
Marie Rehbein
9 years 3 months ago
The Justices do not only have to consider judicial precedent and legislative intent, but they have to consider what unintended precendents their decision might establish.  This is why they are not Constitutional computers, but reasoning beings.  They make their judgments as narrowly as possible so as not to impact things that are not under consideration. 
Christopher Scaperlanda
9 years 3 months ago
Two thoughts. First, you can change the defaults on microsoft word so that it doesn't make changes that conflict with your everyday use. Just go to the menu labeled autocorrect. Incidentally, you can also add in any of your own; as a philosophy major undergrad, I had mine set so that cg automatically became "common good" - it made typing notes that much easier.
The second has more to do with the substance of your post. It seems to me that there are two good possible roles/situations regarding judges. (I used to be a solid strict constructionist). The first is strict constructionism - if we're going to have these lifetime, unelected people making final decisions about important cases and in no way democratically accountable, then it seems we are far better off if those people's discretion is severely limited. We would be better off if they acted as something approaching an extremely well informed computer, and they left the majority of hard decisions to elected officials. Sure, that means that sometimes they let stand manifestly unjust laws, but it also prevents them from becoming a sort of tyranny/oligarchy in which this group of mystical people in robes hands down "the law" to the ordinary people, who have no say in its content. And yes, I recognize that social change is harder when you wait for majority opinion rather than proclamation from on high; in The Republic, Plato noted that slowness of change was democracy's most important asset, the thing that most strongly recommended it.
That said, Hadley Arkes has somewhat convinced me that judges should be able to look further than text and intent, to create a sort of ongoing historical conversation about what justice, equality, and citizenship really are. This of course, is the common law tradition. But that said, if we are going to have that kind of regime, we also need to do away with the absolute finality with which we approach judicial decisions; Andrew Jackson famously simply refused to enforce what he thought was a bad decision by the court. Lincoln agreed to abide by the Supreme Court's decision in Dredd Scott, but only regarding the immediate parties to the case at hand, and refused to treat it as settling the law in any meaningful way. If the court may look beyond the text to personal notions of justice and rightness, then it should also be subject to checks and balances, the way the other policy making branches of government are.
What we have today is neither, and it assigns to the court an oligarchical power in which important policy decisions regarding all kinds of issues (abortion being the most hot button) are made by 9 unelected, unaccountable officials on the basis of nothing other than their personal whimsy. And that, I think, is not a legitimate form of government (at least not in a nation that claims to be self-governing).
Helena Loflin
9 years 3 months ago
When people comment on the number of Catholics, they aren't concerned about Catholicism but about the rampant conservative activism of the Roberts court.
James Lindsay
9 years 3 months ago
The fact is, of the six Catholics on the Court, four consider Roe as settled law - as well they should.  Agreeing with Scalia, the USCCB and the NRLC would change not only abortion law, but set back federal supremacy in equal protection.  Scalia and his Federalist Society buddies would like that, but anyone committed to equal protection and the rule of law does not.
Michael, you may disagree with the result in Roe, however the logic is clear.  Unless the fetus is granted full legal status, abortion cannot be regulated.  Before Roe, abortion was not considered murder, but instead prohibited obstetrics and punished with a fine (which did not stop abortion, it simply drove it underground).  Unless and until the fetus is granted full protection, women have a privacy right in this area.  Because of the 14th Amendment, Congress rather than the states is the competent jurisdiction for granting this protection - especially given the plain language of Amendment 14. 
Only Thomas sees the Court as having the power to extend rights to the unborn by judicial fiat.  The others do not.  This does not mean the cause of the unborn is dead (by either precident or an unlikely constitutional amendment), it simply means that the movement needs to find another strategy - since focusing on overturning Roe will go nowhere fast.  Focusing on how politicians feel about Roe is going in reverse, because it forestalls other action in Congress - where the focus should be.
Should Catholics be guided by faith?  Most certainly.  If the Congress extends rights to the unborn at some stage in pregnancy, they should support such a decision for two reasons:  1.  it is morally correct and 2. it is constitutional under the power of the Congress to enforce the 14th Amendment.
Beth Cioffoletti
9 years 3 months ago
The USA is the only country in the world that sends non-homicidal children to prison for life without a chance to ever get out.*  This practice is currently being argued in the Supreme Court - is it cruel and unusual?
I don't care one bit what religious background the justices come from - I just want them to have some sense of what it is to be poor and caught in traps of justice as they exist in this country.  Legal robots or ideologues do not belong on the nation's highest court.
There really are issues other than abortion that are extremely important to the health of our society, and we need justices who can make decisions rooted in a deep understanding of the human struggle.
[*There are currently almost 2,500 people serving sentences of life
without parole for crimes committed before age 18.  Fifty-nine percent
received their sentences for their first-ever criminal conviction.
Sixteen percent were between 13 and 15 when they committed their
crimes, and 26 percent were sentenced under a felony murder charge
where their offenses did not involve carrying a weapon or pulling a
Beth Cioffoletti
9 years 3 months ago
I should have said "traps of INjustice" in the post above.
Think Catholic
9 years 3 months ago
MSW states that there is a difference between needing to believe abortion wrong and needing to believe that it must be illegal.  In making that assertion, he rejects the Church's clear teaching as set forth in Evangelium Vitae and by the completely universal testimony of the Catholic bishops.  But he joins his liberal-first/Catholic-second cohorts such as Penalver, Kaveny, Cafardi and Kmiec.  The supposedly wide distinction between these two is a helpful rationalization for supporting administrations with radical pro-abortion policies that will make abortion free for everyone, while such Catholics claim that they are really abortion-reducers.
Jim McCrea
9 years 3 months ago
They weren't appointed because they are allegedly Catholic.  Their political leanings were all that are important.  It is too hard to find credible Protestants who aren't right of Atilla the Hun.
James Lindsay
9 years 3 months ago
I'm not sure Catholicism wasn't part of why Alito and Roberts were put on the Court.  Even then, they joined in a decision to uphold the partial birth abortion ban without overturning Roe (although it did damage Doe, which is likely a good thing).  BTW, this ends any charge of "abortion on demand" since that is not legal any more.
Think Catholic
9 years 3 months ago
Mr. Bindner thank you for proving my point that the liberal Catholic view rejects universal Church teaching on the sanctity of human life, and is based on loony conspiracy theories to boot.  Perhaps you also think the cardiologist's sentences are color coded in invisible ink.
leonard Nugent
9 years 2 months ago
Oh! if only Ted could speak to us from the grave.
James Lindsay
9 years 3 months ago
Evangelicum Vitae was written by a cardiologist, who got the embryology wrong, does not understand the distinctions of American constitutional law (despite the fact that he is an American) and did not seem to grasp the difference between providing nutrition to someone who is wasting away and someone who has suffered natural death but was revived with severe brain damage.  It says more in defense of Lord Acton's view of papal infallibilty than life ethics or public policy.
9 years 3 months ago
I'd like to believe that there are so many Catholic SCOTUS justices because Catholic education emphasizes a questioning attitude, the ability to listen, the ability to support one's points and the ability to make a calm, cogent argument before a group. This is very much part of Catholic education, especially in college. And it's very much part of the Jesuit tradition in education. My brother-in-law (a very effective civil lawyer who worked for the Archdiocese of Washington for several years) once told me that he could spot men and women who went to Jesuit colleges within minutes after they began speaking. The gist of his comment was that they were composed, knew their subject matter and engaged their listeners and co-debaters very well.
But this focus definitely goes beyond Jesuit higher education alone. Just look at the calibre of graduates the Vincentians produce at St. John's (really, are there many better speakers than Mario Coumo?) or the Holy Cross Fathers at Notre Dame. This focus is evident in seminaries too. I remember our first practice homilies in homiletics class. Our Passionist professor-Jerome Vereb, C.P.-did not allow us to use our notes or hide our fidgeting behind a lectern or ambo. We had to stand there in front of our very critical classmates and make a cohesive presentation. All this is very much part of the really fine tradition of Catholic eduction. I loved that class. Very challenging. Maybe, just maybe, this is at least part of why there are a disproportionate number of Catholics on the Supreme Court.
James Lindsay
9 years 2 months ago
The sanctity of life and how best to protect it are too different issues.  The Church is entitled to a position on the latter, however they have been badly advised on the former, especially in the United States.  That has led to them being badly used by the Republican Party.


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