A Catholic Justice Faces Confirmation

Judge Roberts should take a middle ground on the Catholic issue.

After being nominated on July 19 to the Supreme Court, Judge John G. Roberts Jr. made the customary round of visits to the U.S. Senate, whose members are likely to vote on his nomination.

At the Capitol, Roberts was quizzed about many subjects, not the least of which was his faith as a Roman Catholic. Reportedly, Democratic Senator Richard Durbin of Illinois asked what Roberts would do if the law required a decision that conflicted with his religion, while Republican Senator Tom Coburn of Oklahoma asked about how Catholicism affects his decisions.

According to those media accounts, Roberts expressed surprise about Durbin's question, saying he would have to recuse himself in such an event, and gave an uncharacteristically muted answer to Coburn's. At the time Roberts’ unease about the queries was understandable; he had just been nominated. But by early September it no longer will be. His confirmation hearing, which is scheduled tentatively for four days in early September, will be televised live nationally.

How should Roberts answer those religious questions?

Instead of deferring to the left or right, he ought to cite the founding documents of this country. To Durbin, he should invoke Article VI of the Constitution: “No religious test shall ever be required as qualification to any office or public trust under the United States.” To Coburn, he ought to read aloud the famous second sentence of the Declaration of Independence: “We hold these truths to be self evident, that all men are created equally, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”

In other words, Roberts should steer a middle course on the eternal debate between, to quote — from Bob Dylan's “Maggie's Farm,” — “man and God and law.”

Roberts should walk away from the path advocated by Durbin: that his judicial philosophy ought to serve only man. And he ought to shun the road implied by Coburn: that his rulings should serve only God.

As much as possible, Roberts must serve God and man.

Spiritually, if Roberts cites the second sentence in the Declaration, he does not deny his faith in God. He affirms the unity between his personal and public lives. He declares himself to be a Catholic privately and professionally. In so doing, Roberts avoids a major trap: leaving the impression that his religious faith has not been privatized, as if it was akin to the cafeteria at the local courthouse. Instead, he confesses that his faith animates his soul.

The Middle Way

Steering a middle path is also politically prudent. It might annoy conservatives and liberals; many will claim Roberts is “deliberately withholding information about his views.” But surely this will not cause most to oppose his nomination. After all, members of Congress swear to an oath to uphold the Constitution.

Although many act as if they swore only to get re-elected, the vast majority try to adhere to the founding documents of the union.

What's more, the Church teaches that prudence is one of the four cardinal virtues. According to the Catechism, prudence is “not be confused with timidity or fear, nor with duplicity or dissimulation.” Rather, it states, prudence “disposes practical reason to discern our true good in every circumstance and to choose the right means of achieving it.”

Taking the middle path also honors and complies with the Constitution. In our form of government, the chain of command is clear: Citizens elect representatives. The representatives make laws. And the judges interpret whether the laws adhere to the Constitution.

Although that principle sounds elementary, it is violated routinely. Take the Supreme Court's twin 1973 decisions in Roe v. Wade and Doe v. Bolton, the rulings that established a uniform “right” to human abortion. In those cases, seven justices junked the Constitution altogether. Instead of acting as judges, they acted as legislators.

Their mindset was captured in The Brethren, an unparalleled 1979 book by reporters Bob Woodward and Scott Armstrong of The Washington Post.

“If there was no way to find an answer in the Constitution,” they wrote of Justice Lewis Powell, he “felt he would have just have to vote his ‘gut.’ He had been critical of justices for doing exactly that; but in abortion, there seemed no choice.”

Thurgood Marshall was described as primarily concerned about how their decision might help the rural poor. Potter Stewart “felt that ‘substantive due process’ [a legal concept first applied in the court's infamous 1857 decision in Dred Scott v. Sandford] was the real basis for the Blackmun opinion.”

In arguing for a middle ground on the religious issue, I realize that my position is inconsistent with the natural law argument. Charles Rice, an emeritus professor of law at the University of Notre Dame, has pointed out that our constitutional model of legal reasoning is positivist — that is, legislators, rather than God, determines what is right and wrong. Moreover, Rice argues, even if Roe and Doe were overturned, the unborn would still be non-persons under the law.

“If your life is subject to extinction at the discretion of a legislative body or of somebody else,” he concluded, “you are a nonperson.”

Which is true, but Rice's argument finds no basis in the Constitution. Granted, the divine law supersedes man-made law. Yet his reasoning is awfully imprudent when applied to Roberts’ testimony before the Senate. It requires Americans to scrap their system of government and replace it. It is fair to conclude that Americans will not be doing so anytime soon.

Roberts therefore should not make a theological case for his Catholicism. Yet neither should he make a secular one. And there are reasons to think he may do so.

His friend Shannen Coffin has said, “John is like a lot of Catholics. He is very private about his relationship to God.” Later, Coffin said Roberts “separate[s] personal philosophy and legal philosophy. Being Catholic, I don't think, affects him any more than if he's Hindu.”

It's doubtful Roberts actually does privatize his Catholicism. Granted, Justice Anthony Kennedy, who voted in 1992 to uphold Roe, belongs to the John Carroll Society, a D.C. organization of professional lay Catholics. Yet Roberts seems different, not least because he surrounds himself with ardent pro-lifers.

His wife, Jane Sullivan Roberts was, in 1998 and 1999, the executive director of Feminists for Life. Coffin himself writes frequently about pro-life topics for national publications. In addition, Roberts clerked for Justice William Rehnquist, an opponent of Roe.

Even so, if Roberts does contend at his confirmation hearings that he separates his personal and legal philosophies, his statement could scandalize the faithful. He would be implying that his legal decisions take no account of God or Church teaching.

Of course, Roberts might believe personally that God comes before man and professionally that he can serve both. But it's fair to conclude that he will leave the impression that he considers only man.

Such an impression might be good for the pro-life movement. I suspect Roberts would vote to overturn Roe and Doe. But he would be the opposite of St. Thomas More, the Lord Chancellor of England who in the 1530s rejected the request of King Henry VIII to condone the divorce of his wife. On the scaffold, More's famous last words were, “The King's good servant, but God's first.”

If he refused to say the same, Roberts would save his neck but lose his soul.

Mark Stricherz, a writer living in Washington, D.C., is working on a book about how secular, educated elites took over the Democratic Party from Catholics and working-class whites.

The Earth is Not Our Mother

“The main point of Christianity was this: that Nature is not our mother: Nature is our sister. We can be proud of her beauty, since we have the same father; but she has no authority over us; we have to admire, but not to imitate.”—G.K. Chesterton, Orthodoxy