Three recent events have added a new wrinkle to a debate that has been taking place among legal scholars: what, if anything, does it mean to be both a Catholic and a Supreme Court Justice?
First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court. As a proportion of the Court’s membership, Catholics on the Court currently exceed their proportionate representation in the general public by a significant amount. This is an astonishing historical fact, although its significance is not self-evident.
Second, Frank Colucci’s book, Justice Kennedy’s Jurisprudence, was recently reviewed in the Wall Street Journal by Northwestern University Law School Professor John McGinnis. Apparently, Mr. Colucci does not adhere to the conventional wisdom that Justice Kennedy is an unpredictable jurist whose primary concerns are the aggrandizement of the Supreme Court and the divination of narrow, fact-based holdings. Instead, and somewhat unexpectedly, Corlucci argues that Justice Kennedy’s approach to the interpretation of the Constitution is best understood as seeking to advance a moral imperative.
Justice Kennedy’s objective, according to Corlucci, is to vindicate and preserve an ever increasing share of individual liberty within our broader society. Here is the key portion of Professor McGinnis’ review:
Looking for the sources of Justice Kennedy’s moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae. In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit ‘irreparable corruption’ – a phrase that a secular judge might not have used. (Justice Kennedy is an observant Catholic). It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be – because of his emphasis on individual rights – the decisive vote for preserving the abortion status quo.
It is intriguing to consider whether there is, in fact, a demonstrable connection between Catholic social thought and Justice Kennedy’s interpretation of an evolving liberty interest guaranteed by the Constitution.
Should this matter? Few people would argue that all religiously observant judges are necessarily intent on imposing a theocratic rule of law (turning the gavel into a cross, as it were). Moreover, it is neither possible nor advisable to seek to eliminate all religiously-derived conceptions of morality from the judicial decision making process. However, the intersection of the Catholic faith and the judicial function remains troublesome for some, perhaps because it takes place out of the sight of the public and within the mind of the judge.
A third recent event raises this same issue. There has been a great deal of consternation in the blogosphere over Professor Alan Dershowitz’s intemperate attack on Justice Antonin Scalia’s dissent from the Supreme Court’s August 17 order in the case of In re Troy Anthony Davis.
In that case, Justice Scalia (along with Justice Thomas) dissented from the Court’s order directing the district court to consider whether or not evidence unavailable at the time of trial now indicated that a convicted felon, presently on death row, was in fact innocent. Justice Scalia disagreed with the Court’s order, stating in his dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Professor Dershowitz charged Justice Scalia with hypocrisy, claiming that Justice Scalia was willing to impose a constitutional rule of habeas corpus that was in conflict with Catholic teaching. For Dershowitz, it is self-evident that it is immoral to execute a man who you know is innocent. Apparently it is similarly self-evident that Catholic moral teaching reaches the same conclusion.
If Professor Dershowitz wanted to start a heated debate on the topic of Catholicism and the Supreme Court, he succeeded. Some of the more interesting responses to Professor Dershowitz include this post by Professor Richard Garnett and this post by Professor Robert Vischer.
In Professor Dershowitz’s defense, Justice Scalia raised the issue of his Catholic faith first. In a 2002 article in First Things entitled “God’s Justice and Ours,” Justice Scalia admitted that he finds it necessary to reassure himself that his interpretation of the Constitution does not contravene his Catholic faith. In fact, he goes so far as to assert that, if he ever felt that the Constitution mandated a rule that contravened his faith, he would feel morally bound to resign from the Supreme Court rather than to vote to uphold that rule.
Fortunately for Justice Scalia, he has concluded that there is no conflict between Catholic teaching on the death penalty and the manner in which the United States Constitution permits the death penalty to be imposed. This is because, as Justice Scalia explains, his interpretation of Catholic teaching on this point differs somewhat from the position of Church authorities:
I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. . . . So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign.
Professor Dershowitz charges that in dissenting from the case of Troy Anthony Davis, on the grounds that the Constitution does not prohibit the execution of a factually innocent man, Justice Scalia is adopting a misguided reading of Catholic theology. Some will be tempted to charge Justice Kennedy with a similar offense.
Justice Kennedy and Justice Scalia present the positive and the negative aspects of the same photographic image. It is the picture of a judge trying to reconcile the role of his faith with his responsibilities on the Supreme Court. We have long recognized that Justice Kennedy and Justice Scalia have very different conceptions about the proper role of a judge under our Constitution. It is possible that their differing conception about what it means to be Catholic has had an equally profound influence on the divergence of their judicial philosophies.
Catholics live their faith in a variety of ways, so it is not surprising that this variety of beliefs can be observed on a Supreme Court with six Catholic members. Religious beliefs influence all of us in diverse ways, as do ideological beliefs, affinities for cultural traditions, and prejudices or stereotypes. Each person’s understanding of how the world works (or should work) is comprised of a unique stew of multiple predispositions.
However, what happens when these predispositions come into conflict? In particular, how do we react when our interpretation of the Constitution, as the embodiment of a fervently held political philosophy, comes into conflict with our understanding of the moral teachings of our faith? Our sacred and secular belief systems must either align or come into conflict, and Supreme Court Justices are no different than the rest of us in this regard.
Human nature being what it is, we would prefer to avoid the dissonance that occurs within our psyche when the secular and the sacred conflict. Therefore, our natural temptation will be to engage in self-delusion. This occurs when we force the interpretation of either our faith or our secular Constitution in a particular direction in order to bring the two of them into alignment. Justice Kennedy wants to see his faith’s promotion of human dignity reflected in the Constitution. Justice Scalia wants to reassure himself that his reading of the Constitution does not countenance the exercise of immoral authority. Not surprisingly, both men see what they want to see.
All of us begin the act of interpretation knowing what it is that we hope to find. Is it any wonder that we often shade our reading of the text and precedent in order to arrive at our hoped for destination? When our mind shades the text in this fashion, we risk doing violence to the meaning of the words we interpret. The alternative, however, would be to do violence to our strongly held self-image. Our subconscious mind will not allow this to occur.
The only solution for a judge placed in this position is to exercise her capacity for self-awareness. This means pausing before she rules. During that pause she should self-consciously reflect on her premises, her life experiences, and even her religious beliefs, in order to assure herself that her interpretation of the text is driven by logic and precedent and not by an unconscious desire to rationalize competing belief systems.
Sound familiar? This is the wisdom imparted by our newest Catholic Justice in her “Wise Latina” speech.
