Catholics on the Court

huge_3_19675Three recent events have added a new wrinkle to a debate that has been taking place among legal scholars: what, if anything, does it mean to be both a Catholic and a Supreme Court Justice?

First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court.  As a proportion of the Court’s membership, Catholics on the Court currently exceed their proportionate representation in the general public by a significant amount.  This is an astonishing historical fact, although its significance is not self-evident.

Second, Frank Colucci’s book, Justice Kennedy’s Jurisprudence, was recently reviewed  in the Wall Street Journal by Northwestern University Law School Professor John McGinnis.  Apparently, Mr. Colucci does not adhere to the conventional wisdom that Justice Kennedy is an unpredictable jurist whose primary concerns are the aggrandizement of the Supreme Court and the divination of narrow, fact-based holdings.  Instead, and somewhat unexpectedly, Corlucci argues that Justice Kennedy’s approach to the interpretation of the Constitution is best understood as seeking to advance a moral imperative.

Justice Kennedy’s objective, according to Corlucci, is to vindicate and preserve an ever increasing share of individual liberty within our broader society.  Here is the key portion of Professor McGinnis’ review:

Looking for the sources of Justice Kennedy’s moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae.  In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit ‘irreparable corruption’ – a phrase that a secular judge might not have used.  (Justice Kennedy is an observant Catholic).  It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be – because of his emphasis on individual rights – the decisive vote for preserving the abortion status quo.

It is intriguing to consider whether there is, in fact, a demonstrable connection between Catholic social thought and Justice Kennedy’s interpretation of an evolving liberty interest guaranteed by the Constitution.

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Seventh Circuit Criminal Case of the Week: Crediting the Lost Opportunity to Serve a Concurrent Sentence

seventh circuitSince separate state and federal prosecutions are permissible for the same criminal act, federal law appropriately permits district judges to impose federal sentences so that they run concurrently with states sentences; that way, defendants can be protected from what would otherwise amount to double punishment for the same crime.  But what if federal prosecution is delayed, and the state sentence has already been served by the time sentencing occurs in federal court?  The federal sentence cannot be made concurrent in those circumstances.  Is it permissible then for the district judge to reduce the federal sentence length in light of the missed opportunity for a concurrent sentence?

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer.  Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence. 

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Papal Encyclical – Caritas in Veritate

Mitch Rubinstein from Adjunct Law Prof Blog writes to me that, “this is a bit different, but I think readers may be interested in this posting about the Pope’s encyclical supporting unions.”  Here’s the post and a taste of Caritas in Veritate, issued on June 29, 2009:

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church’s traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

As a member of a Jesuit law school faculty, I am very proud that the Catholic Church has continued to take such a view on the value of unions and the need to protect historically exploited workers.  I checked with my favorite Jesuit and he tells me this at least the fifth in a series of encyclicals commentating on the importance of labor unions starting with Pope Leo XIII in the late 1800s.

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