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William Dailey, C.S.C.November 17, 2022
U.S. Supreme Court justices pose for their group portrait in Washington on Oct. 7, 2022. Seated from left are Justices Sonia Sotomayor and Clarence Thomas, Chief Justice  John G. Roberts Jr., and Justices Samuel A. Alito Jr. and Elena Kagan. Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Ketanji Brown Jackson. (CNS photo/Evelyn Hockstein, Reuters)

Eight of the last nine Republican nominees appointed to the U.S. Supreme Court have Catholic backgrounds. So too does one recent Democratic nominee, Justice Sonia Sotomayor. That has led to a high court with the striking demographic of six justices raised Catholic (Clarence Thomas became Catholic as an adult), one with a Jewish background and now another raised Protestant, Justice Ketanji Brown-Jackson.

In the not too distant past, observers occasionally spoke of the “Catholic seat” and the “Jewish seat” on the court, so the triumph of both groups in overcoming prejudice has led to a couple of crowded seats. Until Justice Breyer’s retirement, the court had no justices who were raised as Protestants, only Catholics and Jews. Not everyone is happy with this story of successful integration of two immigrant communities into America’s legal elite. Hence the recent headlines in The New York Times (“Too Much Church in the State”), The New Yorker (“The Sins of the High Court’s Supreme Catholics”) and The Associated Press (“Anti-Roe Justices a part of Catholicism’s Conservative Wing”).

It is certainly striking that there is something like a Catholic “supermajority” on the court, and the overturning of Roe v. Wade has, of course, led to an energetic discussion of this reality. It raises the question whether and to what extent the faith commitments of the justices matter for their behavior on the court. The answer to that is complicated but is, in each instance, best summed up as “for the most part, not much.”

The faith of Catholic judges should matter to them to the extent it inspires them to serve with integrity and zeal. We can and should ask no more.

A supermajority?

There are some important qualifications to this that I must hasten to add. As a Catholic and a priest, I hope and believe that my faith—and that of my fellow Catholics—matters a great deal to the enthusiasm and integrity with which I take up my work and the values I bring to it as a neighbor and citizen.

One way into the complexity of the matter is to consider why I wrote, “something like a Catholic supermajority on the court.” Of the seven justices with Catholic backgrounds, two are not practicing Catholics—Justice Sotomayor and Justice Gorsuch. While each was raised in the Catholic faith, Justice Sotomayor told The Washington Post that she is “maybe not traditionally religious,” and Justice Gorsuch attends an Episcopal parish. So in the Dobbs case that overturned Roe, four of the five justices in the majority are practicing Catholics, while Chief Justice Roberts declined to go as far as the majority in upholding the Mississippi law, and Justice Sotomayor dissented.

Like any important social phenomenon, the preponderance of Catholics on the court does not admit of a single, simple explanation. Take Justice Sotomayor’s appointment. Surely it was important to President Obama that he was able to appoint the first Hispanic justice to the court. In doing so, he was not seeking to affirm (or deny) Catholic theology but to recognize an important demographic reality of 21st-century America and to build a court more reflective of this. In turn, Justice Sotomayor reflects a broader trend: American Catholics—not unlike the American Jewish community—has historically emphasized legal education as a path to mainstream acceptance.

While this is an important dimension of the story, so too is the 50-year existence of Roe v. Wade as a controversial centerpiece of American law and politics. In my lifetime (I was born in 1972, the year Roe was argued), the Catholic Church in the United States went from being largely associated with the Democratic Party of labor unions, urban immigrant communities and John F. Kennedy to having a closer connection with the Republican Party and its opposition to legalized abortion.

During that time, the parties became more ideologically pure at the national level, such that it has become difficult to imagine a pro-choice Republican presidential candidate or a pro-life Democratic one. Presidential candidates wanting to follow through on pledges to appoint justices likely to repeal Roe v. Wade were apt to turn to candidates with Catholic backgrounds, who happened to be readily available. Application of Occam’s razor suggests that this simplest explanation has at least some important role in the story.

Catholic jurists are permitted to distinguish between the correct answer to a legal question and the correct answer to a moral question.

A good Catholic and a good judge

Where have these developments brought us? The picture is more complicated than the headlines I noted at the outset might suggest. Commentators, for instance, have noted that Justice Gorsuch studied at Oxford University under the Catholic natural law theorist John Finnis, but they have less frequently noted that he wrote the majority opinion in Bostock v. Clayton County, which held that gay or transgender employees enjoy protection as such under Title VII of the Civil Rights Act of 1964, and from which Justices Alito, Thomas and Kavanaugh dissented.

Justice Anthony Kennedy, meanwhile, famously changed his vote from overturning Roe v. Wade in Planned Parenthood v. Casey to upholding it. At the same time, Justice Kennedy voted in high-profile death penalty cases like Kennedy v. Louisiana (barring the death penalty for child rape) to limit the application of the death penalty under the Eighth Amendment’s prohibition against cruel and unusual punishments, again separating him from fellow Catholics on the court.

We might ask which justices, on which occasions, were being Catholic justices and which were just being good or bad justices? How can one tell? On this very issue of the death penalty, just two years ago America ran a nuanced and provocative essay (“Catholic Judges and the Death Penalty,” February 2021) wondering how Catholic witness and Catholic jurisprudence might coincide. That essay, in turn, hearkened back to the now well-known treatment of the same topic by now-Justice Amy Coney Barrett (“Catholic Judges in Capital Cases,” Marquette Law Review, 1998).

In an article in The Marquette Law Review in 1998, written with John Garvey, the recently retired president of The Catholic University of America and a former University of Notre Dame Law professor, she concluded that a judge being faithful to Catholic teaching on the death penalty would in some circumstances have to recuse herself from a case rather than formally cooperate in imposing the death penalty or, alternatively, would be required to ignore the law in favor of her substantive view that the death penalty is unjust.

There are (at least) two ways to think about how to answer the questions raised here. First, what constitutes being a good judge in our system from the point of view of American law and tradition? Second, what constitutes being a good judge from a Catholic perspective? It may surprise readers to learn that in neither instance is there a definitive answer or, at least, a definitive answer that is both comprehensive and generally acknowledged.

Article III of the U.S. Constitution lays out “the judicial power” in our system, but it does not tell us much about how judges are to exercise that power. Should they be “originalists” or “living constitutionalists” or “living originalists”? The civil law tradition includes within it a constant conversation about how judges are supposed to do their job of interpreting the law and deciding cases in accord with those interpretations.

The Catholic tradition, meanwhile, following St. Thomas Aquinas, traditionally understands human law as belonging in one of four basic categories of law: the eternal, the divine, the natural and the human. Eternal law deals with what we might call the laws emerging from God’s providential plan for creation, including physics and chemistry but also the conditions of human flourishing and salvation; divine law is concerned with those things we need to know for salvation but cannot attain by reason alone, requiring divine revelation; and natural law deals with the rational creature’s participation in the eternal law. The lynchpin of this participation is the conscience, which St. John Henry Newman speaks of as God’s “messenger” in us.

Human law, in turn, is derived from the eternal, divine and natural law—but not identical with it. Not every precept of morality is properly codified in the positive human law. Because of this last fact, the problem arises of how to distinguish between the human law and the moral law, and the obligations Catholics have when undertaking an official role in human legal systems, American or otherwise.

Note that Catholic legal theory does not mandate any particular form of government but calls for the state “to defend and promote the common good.” The common good was defined at the Second Vatican Council in the “Pastoral Constitution on the Church in the Modern World” as “the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily.” We may more easily intuit the forms of oppression that pose obstacles to that fulfillment than we can look to the Catholic tradition for guidance on whether legislatures should be bicameral or unicameral, or whether there should be an electoral college.

We may say that the judiciary is a less political branch, but still insist that it is a political branch of our democracy.

Catholic judges and the law

Within the limits of the secular American legal tradition, there is a breadth of opinion about how to interpret and apply the law, and whether and to what extent a judge’s own view of morality might affect her opinion. In Kennedy v. Louisiana, referred to above, Justice Kennedy wrote (with the concurrence of non-Catholic justices) that the court relied, in part, on its own “independent judgment” as to “the evolving standards of decency that mark the progress of a maturing society” in barring the death penalty for child rape.

Justice Alito, joined by fellow Catholic justices Scalia, Thomas and Roberts, wrote in dissent that the state legislators’ contrary judgment had not been shown to violate either the original meaning of the Eighth Amendment or subsequent precedents. None of the justices in the majority or dissent made reference to Catholic social teaching on the death penalty and, of course, none would be expected to. Rather, one might think they were forbidden from doing so under a commitment to the First Amendment’s barring of the establishment of religion.

I take no position here as a lawyer on whether the Kennedy decision was rightly decided as a matter of U.S. constitutional law. It plainly reached a result that conforms with the Catholic Church’s own evolving teaching opposing the death penalty, rooted in St. John Paul II’s “The Gospel of Life” and continuing through Pope Francis’ revision of the Catechism of the Catholic Church declaring the death penalty “inadmissible.” I am happy to celebrate that as a Catholic. So long as each justice in the case was undertaking his or her duty with utmost care, no justice may be said to have been doing better as a Catholic than another justice in the case. Catholic teaching does not dictate the interpretation of legal texts and precedents, even where Catholic teaching does instruct as to the just outcome of a case, and Catholic jurists are permitted to distinguish between the correct answer to a legal question and the correct answer to a moral question.

I was fortunate to serve as a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. He once gave a keynote address at the University of St. Thomas Law School, in which he captured the matter well:

Let us assume for the sake of argument that a Catholic feels passionately about the rights of the unborn or of immigrants, and that our nation’s laws are unjust to both. There are many commendable jobs a person might pursue in order to vindicate those positions. But I respectfully suggest that the job of federal circuit judge is not high on the list. A person wanting the sort of job that can improve the justice of our laws ought to be running for office, writing for a think tank, or working in some other sort of advocacy role. Accepting a commission to the federal bench means agreeing to enforce the laws as they are, not as one would have them be.

Judge O’Scannlain was right to distinguish the role of the judge from the roles of many others in our system, and the extent to which the moral views of individuals will be more or less relevant to their work in those various roles. I think Judge O’Scannlain would agree that it is not always so simple. I noted earlier that Occam’s razor suggests the Catholic faith (as well as its adherents’ public affiliation with the G.O.P. legal community) was relevant to the presidents who appointed the justices who ultimately voted to overturn Roe v. Wade. Is that to suggest that those justices failed in their duty, as I have laid it out, to separate their Catholic commitments from their judicial duty? I think not.

First, it must be noted that those justices did not read any Catholic principle into the Constitution. The decision permits legalized abortion in any or all states. Also, we would do well to recognize that judges are also human, and the law is very often debatable and in that sense indeterminate. Judges must sometimes make determinations even where the law is unclear, and it would be naïve to suggest that in some cases where the law is contestable and indeed hotly contested, their own larger commitments and world view will not enter into how they weigh the factors at issue in any given case.

Our judicial system, by having judges appointed rather than elected and serving life tenure subject only to (rare) impeachment for bad behavior, is designed to give judges the best chance at doing their jobs free from influence or bias. But those judges are appointed by politicians who are elected. We may, then, say that the judiciary is a less political branch, but still insist that it is a political branch of our democracy.

We should guard against the presumption that judges we disagree with in such a system are acting in bad faith, or on the basis of faith, and recognize instead that we want human beings to settle our most fundamental and vexing legal issues, even despite our human fallibility and the certainty that sometimes we will disagree deeply about the right outcome in vital cases. This will be true whether a judge is Catholic or atheist, Jewish or Hindu. The faith of Catholic judges should matter to them to the extent it inspires them to serve with integrity and zeal. We can and should ask no more.

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