Monday, October 31, 2005
First, I apologize for my sloppy language, though I think it's fair to say that Alito did write an opinion holding the FMLA unconstitutional as applied to suits for damages against a certain (significant) class of employers. In any event, I don't agree that this was a run-of-the-mill application of the Court's 11th Amendment precedent. There was certainly ample room to come out the other way, as the Chief Justice and Justice O'Connor ultimately did. The 3d Circuit opinion strikes me as a robust and enthusiasiastic interpretation of the relevant precedent.
This is important, and it goes to Rick's third point. Rick says:
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.
I think Rick's qualification is crucial. I agree that there is certainly a difference between judicial conservatism and political conservatism, though I think that gap can be overstated (see Bush v. Gore). More importantly, though, it seems to me that there is an inconsistency between Catholic Social Teaching, which advocates a preferential option for the poor and oppressed and is broadly sympathetic with government interventionism in the exercise of that option, on the one hand, and the advocacy of the broadest possible application of doctrines (constitutional and otherwise) that make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process. Judicial conservatives consistently favor the latter, and I think there is at least some reason to believe that their efforts in that regard are related to substantive political preferences.
For example (and setting aside for the moment the proper role of personal religious views in judicial decision-making), assuming (heroically) the cogency of the constitutional exegesis underlying the Court's 11th Amendment jurisprudence, it's hard to say that there is no tension between Catholic Social Teaching and the decision by judge Alito, in a position of doctrinal uncertainty, to favor the broadest possible application of sovereign immunity doctrine when the effect is to prevent the application of a statute like the FMLA, whose principal beneficiaries will be working class women.
I think similar arguments could be made about a fairly direct connection between judicial doctrines embraced by Scalia, Thomas, et al. and substantive policy results on issues of immense concern to Catholic Social Teaching. Unnecessarily reading limits on congressional power for all they're worth seems to me to be at least in tension with the "substantive commitments . . . of many Catholics" on a great many issues.
Finally, all of this seems academic to me (not that there's anything wrong with that), as we all know that Scalia, Thomas, (probably) Alito, and (at least earlier incarnations of) Roberts are judicial and political conservatives and are, accordingly, opposed to many substantive policies favored by CST (e.g., Alito's support for the right of employers to discriminate against those suffering from AIDS). Sometimes this opposition bleeds into their judicial decisionmaking (Scalia's pinched readings of civil rights statutes comes to mind), and sometimes it does not. My point was not that their judicial decision-making is necessarily in tension with CST, though I think it is in many areas, but rather that, as indivdiuals, their political conservatism is not representative of American Catholics as a whole. The reasons for the lack of representation of progressive Catholics on the Court are complicated, but I think it largely has to do with the fact all but two of the sitting justices (and ALL of the Catholics) were nominated by Republicans.