Talk about a majority. If Sonia Sotomayor, recently nominated by President Obama to succeed departing Justice David Souter on the Supreme Court, is confirmed, she will join five other Roman Catholics on the court, a number unprecedented in Su--preme Court history.
Sotomayor, currently a judge on the federal 2nd Circuit Court of Appeals in New York, is likely to be confirmed. She has a solid track record as a judge and a varied career as a prosecutor and in private practice before joining the bench.
Moreover, she has a winning personal story: Her father died when she was a child, and her mother worked to provide her and her brother a stable background in which to succeed academically, which she did, going on from a Catholic school in the Bronx to Princeton University and Yale Law School. While Sotomayor is widely considered a liberal judge, some have argued that a close analysis of her opinions, on issues such as religious liberty and abortion, suggests a more complicated picture.
Her nomination, therefore, may be a cause of rejoicing among American Catholics. But the fact that the number of Catholics on the court is featured in news headlines remains troubling; one would not hear the same discussion if there were six Presbyterian justices.
Anti-Catholicism remains a part of the culture, particularly among the elite legal class, and even more so in an age when Catholic norms are so at odds with the reigning secularism.
The presence of anti-Catholic bias is not a theoretical concern. At the state level, there are dozens of so-called Blaine amendments, a holdover from the days when Catholics were seen as a threat to American democracy. These laws, in essence, prohibit public support for Catholic schools and have proven difficult to overturn, even in a supposedly more tolerant era.
And when the Supreme Court recently upheld portions of state-level restrictions on partial-birth abortion, some openly speculated that the decision was the result not of constitutional principle, but Catholic dogma. In fact, a law professor at the University of Chicago criticized the Catholic justices for failing “to respect the fundamental difference between religious belief and morality.”
This is not far from saying judges with strong moral beliefs based in religious faith are unfit to be on the bench. With six Catholics on the court, critiques along these lines will likely be re--peated.
In some sense, of course, a judge’s religious affiliation should matter little. Judges of any political inclination, or none, have a duty to uphold the law, not a particular platform.
The same holds true for Catholic judges, who should not be beholden to any particular party or platform. Catholics are found on all parts of the political spectrum. Indeed, the richness of the Catholic intellectual and jurisprudential tradition should provide an added resource for Catholic judges not to be swept up in partisan thinking on a particular issue.
Nor should a judge’s faith necessarily trump the law. As Notre Dame law professor Rick Garnett has said, “Even in ‘hot button’ cases about social issues, the job of a Catholic judge or justice is not to find a way to a substantive outcome that lines up with Catholic teachings on such issues, but to reach the legally correct result.”
But, as the reaction to the partial-birth abortion decision shows, some seem to believe that, for Catholic judges, that kind of judicial neutrality is not possible. The presence of Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy, some say, has moved constitutional jurisprudence in a more “Catholic” direction. But this oversimplifies the truth.
Even among the Catholic justices, interpretations differ: Justice Scalia’s understanding of the Constitution, for example, is not the same as that of Justice Kennedy. There is, in other words, no “Catholic” answer to many of the issues that come before the court.
But in a legal system that places itself opposed to basic Catholic principles, the Chicago law professor might have a point.
As with the Blaine amendments, the legal structure itself can be hostile toward religious faith in general and the institutional claims of Catholicism in particular. In states that have required Catholic agencies to place foster children with same-sex couples, for example, or required birth control coverage as part of insurance plans at Catholic institutions, supposedly “neutral” laws are anything but. Rather, such laws place one belief system against another, and a Catholic judge may be forced to take a stand.
This development, which some have called “the new orthodoxy,” has until recently been hard to identify, because these laws use the rhetoric of equality and rights that is comfortable to most Americans.
But their application has threatened to force religious belief to the margins, a result sharply at odds with the American constitutional tradition. They present a secular understanding of law’s power that is far removed from the limited government set forth in the Constitution, which allows for different belief systems to operate under the general protections of a truly neutral legal system.
Such cases will take up an increasing portion of the court’s docket in the coming years that will see a Justice Sotomayor on the bench. Let us hope she and her Catholic colleagues react accordingly.
Gerald J. Russello is a fellow of the Chesterton Institute at
Seton Hall University.