Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, October 31, 2005

Alito, Catholics, and the Court

A few quick thoughts in response to Eduardo's post:  He writes that Judge Alito "famously authored the opinion holding the Family Medical Leave Act unconstitutional, which was reversed by the Supreme Court in an opinion by Chief Justice Rehnquist (with Kennedy, Scalia, and Thomas dissenting)."  If I remember correctly, the majority opinion that Judge Alito authored (and which was, as Eduardo points out, reversed) did not "hold[] the [FMLA] unconstitutional," but only concluded that Congress had not effectively abrogated states' "sovereign immunity" from lawsuits for money damages under the Act.  I'm not wild about the Court's sovereign-immunity line of cases, but Alito's opinion was, as I recall, a perfectly reasonable application of the relevant precedents.

Next, Eduardo notes that "Catholic voters long made up an important part of the New Deal coalition.  While Catholics have no doubt grown more comfortable voting for Republicans over the past few decades, it would be hard to argue that the (potentially) five Catholic justices would be representative of the politics of Catholics as a whole."  This is a good point, re: representativeness.  That said, I am inclined to think that the shift in Catholics' voting practices was not just a result of Catholics growing more comfortable with Republicans, but of dramatic shifts in the positions of both parties and also of the increasing salience of "culture" and "values" issues (and of the Democrats' leftward movement on those issues).

Third:  Eduardo's post raises the possible tension between the "conservativism" of Catholic Justices like Justice Thomas and Scalia (who, in my view, actually have very different judicial philosophies, and disagree more than many people realize) and the political stance of many (most?) Catholic citizens.  Here's how I see it:  The judicial conservativism of, say, Justice Scalia (or, I admit, me) need not be seen as in tension with the substantive left/ progressive / social-justice political commitments of many Catholics, because Justice Scalia (whatever his policy views are, and I assume they are conservative) is, for the most part, happy to leave these matters to the political process, so long as they are not pursued through legislative means that exceed Congress's powers.  And, on the "social" questions, where the Church's teachings are (arguably) "conservative", it seems to me that Justice Scalia's views (both as a judicial matter and as a policy matter) are in line with most Catholics' views.  Even though Catholics disagree on whether abortion should be outlawed, I expect most believe -- or, if presented with the question, would say they believe -- that it may be reasonably regulated.



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