Thursday, May 28, 2009
A newspaper reporter just asked me a few questions about the whole "Catholics and the Court" issue. Here is what I said / wrote:
1. Why do you think there are so many Catholic Supreme Court justices?
Part of the answer would be that, for a large part of American history, Catholics were often excluded from the universities, law schools, law firms, and social circles from which Justices of the Supreme Court would have been drawn. And so, the fact that we moved from having "a Catholic seat" on the Court to -- starting with Justice Scalia and running now through Judge Sotomayor -- reflects, in part, the fact that the religious demographics of elite lawyers are starting, belatedly, to come in line with the demographics of the United States.
Another part of the answer is connected to the fact that the current five Catholics were appointed by Republican, "conservative" Presidents. Before the Roe decision, and the political re-alignments of the 1970s, most Catholics in America were Democrats. But, as I suggested earlier, they were not (as a general matter) in the "club" of those who were potential nominees. However, because of cultural shifts in America, and the salience of life-issues, many more American Catholics have grown more "conservative" in their political orientation and in their thinking about the role of courts. So, after 1980, a Republican President looking for nominees who were both well qualified and conservative in terms of judicial philosophy would have confronted a "pool" that -- unlike the pool *before* these changes -- included many Catholics. Put simply, if a President was looking for -- and, since 1980, Presidents picking Justices often have been looking for -- a judicial conservative with good credentials, such a President was inevitably going to pick from a list that included many Catholics.
2. Does it matter -- in terms of legal decision-making, the place of
Catholics in American culture, or in some other way?
It does not matter so much in terms of legal decision-making. After all, *every* judge or Justice (not just a Catholic one), should aspire to judge impartially, to avoid substituting his or her own policy preferences for the content of the law, and so on. 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. Of course, to the extent that judges are shaped -- as we all are, and as every judge is -- by experiences, values, and moral commitments, we might expect that the Catholic faith and tradition have played a role in shaping a Catholic judge's world-view. But again, a judge's world-view and personal experiences should not, as a general matter, determine the outcomes that judge reaches.
It does matter, though, in terms of what it says about America. For too long, ugly and crude anti-Catholic prejudice was a staple of American life, even in polite society. We should hope that this bias is receding.