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.

Tuesday, April 29, 2008

"The Supreme Court at a Crossroads"

The cover of the April 28 issue of America caught my eye:  The cover photo depicts the intersection of "church" and "state" streets, and adds the caption, "The U.S. Supreme Court at a Crossroads."  Dale Recinella has a piece called "The Court and the Death Penalty" and Antony Barone Kolenc contributes an essay entitled "A New Majority and the Culture Wars."

Recinella discusses what "one Catholic Justice could do" to "end[] the death penalty".  Now, I would also like to see an "end[ to] the death penalty", but I was not moved by Recinella's assertion that "there is manifest legal justification" for "one of the five Catholic justices" to "change his position on capital punishment".  Nor is it clear to me why it should be relevant to a Catholic Justice, when he or she is deciding how to vote in a death-penalty-related case, that "U.S. death penalty jurisprudence contravenes the explicit commands of Scripture", assuming that it does.  Recinalla also contends that, if just one of the Catholic justices changes his mind, "the use of the death penalty would end in the United States."  It is not at all clear to me, though, that the four non-Catholic Justices believe they are constitutionally authorized, or are themselves inclined, to outlaw entirely the death penalty.  (Would they impose increased limits on its use?  Certainly.)

Like Recinella, I welcome the possibility that Catholic arguments and commitments will, soon, re-shape our crime-and-punishment practices.  But, I'm hesitant to agree with Recinella that this re-shaping will, or should, come about because it is imposed by Catholic Justices.

In "The Court at a Crossroads", Kolenc writes that "big change may be coming in America's culture wars -- a legal shift that could alter the so-called separation of church and state."  Could be.  Kolenc is right, I think, that the departure of Justice O'Connor creates an opening for revisions to the Court's doctrine -- specifically, for de-emphasizing her "endorsement test" -- but I don't really expect any dramatic change in outcomes.  (If one of the "conservatives" is replaced by President Obama or Clinton, I would think that we might well see some backtracking, particularly when it comes to public-funding cases.)

A quibble:  In one place, Kolenc says that "Scalia is often joined in his campaign [for a greater tolerance of religion in the public arena] by Roberts, Thomas, and Alito."  I can't think of any religion-in-public-life cases, though, decided since Alito joined the Court, so this claim would have been better phrased as a prediction than a description.


Garnett, Rick | Permalink

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