Monday, November 07, 2005

A Catholic majority on the Supreme Court?

If the Alito nomination clears the Senate, five out of nine justices on the Supreme Court will be Catholic. Alan Cooperman considers the possible implications in this article in today's Washington Post. Though I wish that Cooperman's article could have been longer and more detailed, there's plenty of food for thought in the different views expressed by the academics quoted in the WaPo.

Catholics have long since ceased to be a monolithic force in American politics, which is why I'm uncomfortable with sweeping statements made by some of the scholars quoted in the article. I believe USC political scientist Howard Gillman is correct when he suggests that conservative Catholic lawyers and jurists have coalesced into a well-organized and increasingly influential movement over the past several decades, but it's important to emphasize that this group represents only one among many strata of public opinion in the Catholic community. I cannot agree with the views expressed by Notre Dame's Gerry Bradley, who says:
I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the 'natural law' thing.
Or call it the 'sweeping generalization' thing. Beyond the lack of nuance in Bradley's comments - for example, he never clarifies that he means only some Catholics, and that's a pretty glaring omission - he also seems to imply that faith can acceptably be made subordinate to ideology. Bradley seems to be okay with using Catholicism to justify a particular strand of political opinion, and I have a hard time with that. Whenever faith is subordinated to politics, faith inevitably gets badly mangled in the process. I could say a lot more about this, but I should probably stop there.

Having a Catholic majority on the Supreme Court is most significant not as a sign of the ascendancy of a particular political ideology but as sign that the religious beliefs of judicial nominees is becoming less of an issue than it once was. As Notre Dame law prof Cathy Kaveny points out, the prospect of a Catholic majority on the Court represents "a victory over historic prejudice" against Catholics, but it also represents much more. Here's another persective from the WaPo article:
Dennis J. Hutchinson, a court historian at the University of Chicago, noted that one of the most liberal Supreme Court justices of the 20th century, William J. Brennan, was a Catholic, and so is one of the most conservative, [Antonin] Scalia.

The religious affiliation of the justices is not a burning issue because "we've learned that Catholics can be conservative or liberal, and that in terms of judges, ideology trumps any sort of presumption about church doctrine - and that's true whether the justice is a Protestant, a Catholic, or a Jew," he said.

Hutchinson questioned whether it makes any real sense to speak of a "Catholic majority" on the court when the five men concerned may disagree on hot-button social issues. . . .

In other words, don't presume you know how justices will rule depending on where they worship - or, for that matter, where they went to law school or what president chose them for the Court. It would be wrong to suggest that Catholic justices will – or even should – act as a religious bloc. If all the Catholic justices do rule the same way on a contentious issue, their reasons for doing so must be grounded not in the Catechism but in the principles of secular jurisprudence.

Though we shouldn't speak of a 'Catholic bloc' on the Supreme Court, a Catholic majority wouldn't be a bad thing. Such a development would send a positive message, not simply to Catholics but to all Americans, that one's religious beliefs should not be a barrier against holding prominent positions of civil responsibility. That message is, I believe, a message of hope and opportunity for all. AMDG.


At November 07, 2005 7:14 PM, Blogger Susan Rose Francois, CSJP said...

I've got a post on the same article

At November 08, 2005 11:06 AM, Anonymous Anonymous said...


Your post demands comment. Firstly, you contradict yourself. I quote:

"Whenever faith is subordinated to politics, faith inevitably gets badly mangled in the process."

I absolutely agree. However, you then say this:

"If all the Catholic justices do rule the same way on a contentious issue, their reasons for doing so must be grounded not in the Catechism but in the principles of secular jurisprudence."

So it should be political ideology that trumps faith in the end?

Truly, I cannot understand why a Jesuit, a man of the religious life of Christianity, would suggest that the Catechism should not be followed as a guideline for moral decisions. Certainly, as pointed out in the post, there have been liberal and conservative Catholics on the court. However, I'd venture to say that, because of the divergence of opinion on matters where divergence is not allowed within the Catholic framework, some of those justices' "Catholic" labels were misnomers—except as you or I might be Americans because we happened to be born here.

At November 08, 2005 9:19 PM, Blogger Joseph Koczera, S.J. said...

Anon -

Thank you for your comments. I appreciate your concerns, so let me clarify my meaning. I never said that the Catechism should not be a guideline for the moral decisions of Catholics, including of Catholics serving in positions of public responsibility in a pluralistic society. However, in writing opinions judges need to appeal to more than their religious convictions. They need to be able to articulate positions that are intelligible to people of all convictions - in other words, Catholic judges need to find a broader basis for their opinions than simply Church teaching or natural law. This isn't to say that the Catechism and what I call "secular jurisprudence" are necessarily and always opposed to one another. What I'm saying is that when the two agree, Catholic justices have to be able to explain the agreement in a way that satisfies American legal principles as well as religious precepts. The challenge for Catholic justices who are sincere in their faith - regardless of whether they fit "conversative" or "liberal" labels - is to be able to balance the demands of their religion and the demands of their civic office in a way that is faithful to both. This is a hard thing to do, and my fear is that some of the individuals quoted in the Cooperman article underestimated its difficulty. Thanks again for your thoughtful comments.



At November 09, 2005 9:01 AM, Anonymous Anonymous said...

One cannot be faithful to two masters. Either one has been formed through one's faith, or, faith is an accessory item that can be removed at will. The latter seems to be the dominant view in both American politics and jurisprudence.

At November 09, 2005 9:40 AM, Anonymous Anonymous said...

Thanks for your response, Joe. I'd be curious to know, however, what you think about a Catholic judge upholding Roe insofar as it promotes a constitutional right to abortion. Granted, there aren't many issues more charged than this, but you might as well tackle the hard cases.


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