When John Roberts, chief justice of the U.S. Supreme Court, administered the oath of office to Samuel Alito Feb. 16, the newest justice made history by becoming the court’s fifth Catholic, creating a majority of Catholic justices for the first time in American history.
Alito joins Catholics Roberts, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas as part of court that will be closely watched for its rulings on a wide range of cases, including those involving abortion and the public expression of religious belief. Indeed, on Alito’s first day on the job, the court agreed to hear a challenge to a federal law outlawing late-term, or partial-birth, abortions (see related story on page A4).
Court observers and Catholic activists interviewed by the Catholic Courier expressed a wide range of opinions on the significance of the court’s new Catholic majority.
Kevin J. “Seamus” Hasson, a Rochester native who is chairman of the Becket Fund for Religious Liberty in Washington, D.C., is author of The Right to be Wrong: Ending the Culture War Over Religion in America. Hasson, a Catholic who worked for Alito in the Reagan White House, noted that it’s important not to read too much into the fact that most of the justices share the same faith. While he is “cautiously optimistic” that the Catholic-dominated court will be favorable to religious expression in public places, Hasson said that Kennedy and Scalia, for example, have differed sharply on abortion, with Kennedy expressing mixed views on abortion rights and Scalia more clearly anti-abortion.
“I don’t know how meaningful it is to call them the same parts of the Catholic majority,” Hasson said.
On the other hand, observers noted that even if it is not always monolithic in its outlook, a majority of Catholics on the court clearly indicates how far Catholics have been assimilated into America.
For example, William Donohue, president of the Catholic League for Religious and Civil Rights, saw a positive sign in Alito’s elevation to the highest court.
“The fact that the majority of the Supreme Court is comprised of Catholics is further evidence that discrimination against Catholic individuals has declined markedly over the past several decades,” Donohue said.
That point was echoed by Richard W. Garnett, an associate professor at the University of Notre Dame’s law school.
“The current makeup of the Supreme Court is a reminder of how things have changed — for the better — in the attitude of Americans toward Catholicism and Catholics,” Garnett said. “For much of our history, Catholics were targets of unjustified prejudice and suspicion, and were assumed in some quarters to be unworthy candidates for positions in government, universities and law firms. Those days are over.”
Happenstance
The court’s Catholic majority is historic, but it may be as much happenstance as anything else, according to John H. Garvey, dean of Boston College Law School. Garvey noted that President George W. Bush had originally nominated Harriet Miers, an evangelical Christian, for the seat Alito eventually assumed. He added that Thomas was originally an Episcopalian before returning to the Catholic faith of his childhood in 1999.
Indeed, Steven Shiffrin, professor of law at Cornell University, said it’s more likely that Bush chose Alito because he’s conservative than because he’s Catholic. The pool of potential Catholic conservative justices is larger than the pool of potential evangelical Christian judges, he said. Catholic conservatives concur with evangelicals on a number of issues important to the Republican Party, he noted.
Then again, the Bush administration knows Catholics are a swing vote, and in the last presidential election, some bishops’ statements led voters to identify the Republican Party with Catholic values, Shiffrin said. To buttress his point, he said that in 2004, some U.S. bishops called for denying Communion to pro-choice Catholic politicians. The Communion issue was highlighted in June of that year when the U.S. bishops released “Catholics in Political Life,” a statement that called on Catholic politicians to “work to correct morally defective laws,” but which also left to individual bishops the decision of denying Communion to pro-choice Catholic politicians.
Garvey said the five Catholic justices — as well as the church — are conservative on such issues as abortion, euthanasia, embryonic stem-cell research and gay marriage. However, he added that the church itself is not conservative on a number of issues, including welfare, immigration, the death penalty, military “aggression” and health-care policy.
“Court-watchers and the media tend to focus on issues related to sex … in measuring public figures on the liberal-conservative scale,” Garvey said. “And on those issues, some, but not all, of the Catholic members of the court agree with the church’s position.”
God and gavel
If one thing is clear historically, legal experts said, a justice’s Catholic faith doesn’t mean he or she will necessarily choose the church’s side in a case. For example, Roe v. Wade, the 1973 landmark abortion decision, was formulated to a great extent by Justice William Brennan, a Catholic. And both Thomas and Scalia have rendered decisions in favor of the death penalty, which the church opposes in virtually all circumstances.
Nonetheless, Donohue remarked that suspicion about the Vatican controlling Catholics in public life reared its head during Roberts’ confirmation process. He noted that the Catholic League criticized Sen. Arlen Specter and Sen. Dianne Feinstein when they asked Roberts if he agreed with John F. Kennedy’s famous 1960 presidential campaign speech to Protestant ministers in Houston. During that speech, the Catholic candidate outlined his independence from the church on public matters. Roberts said he agreed with Kennedy, though he noted that church-state separation issues are still unsettled in constitutional law.
“Roberts handled himself well, but the shame of it is that he had to answer these questions at all,” the Catholic League stated in a Sept. 14 press release on the hearings. “What did Specter and Feinstein expect him to say — that he takes his marching orders from the Vatican?”
Donohue noted that a Catholic judge is called to rule as a judge, not as a Catholic.
“A Catholic judge, as opposed to a Catholic legislator, should never rule in a ‘Catholic’ manner,” Donohue said. “All decisions should be made on the basis of fidelity to the meaning of the legislation as it was crafted by lawmakers. In other words, while it is perfectly acceptable for a lawmaker to allow his religious convictions to affect his decision on a particular bill under consideration, it is never permissible for a judge to do so. A judge is sworn to interpret the law, not make it.”
Garnett made similar remarks.
“Generally speaking … a judge’s role and vocation does not require him or her to make theological or moral judgments, but to decide relatively technical legal questions,” he said. “Even in cases involving controversial and difficult matters — abortion, the death penalty, assisted suicide, etc. — the question the judge is asked to decide almost always has to do with the meaning and application of a particular legal provision, and not with the morality or justice of the underlying matter.”
Even if a judge believes in the church’s teachings on life issues, he or she is still constrained by the limits the Constitution imposes on judges, said Robert A. Destro, a professor of law who directs the Interdisciplinary Program in Law & Religion at Catholic University of America in Washington, D.C.
“A judge may fervently believe that capital punishment is immoral and barbaric, but also believe strongly that the task of changing the rules belongs in the democratic process,” Destro said. “Such a judge is quite likely to be very protective of the free speech and religious-liberty interests of the church precisely because he or she is likely to believe that it is the role of the church, in particular, to speak truth to power.”
