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Three 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?<\/p>\nThree 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?<\/p>\n
First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the\u00a0Supreme Court.\u00a0 As a proportion of the Court\u2019s membership, Catholics on the Court currently exceed their proportionate representation in the general public by a significant amount.\u00a0 This is an astonishing historical fact, although its significance is not self-evident.<\/p>\n
Second, Frank Colucci\u2019s book, Justice Kennedy\u2019s Jurisprudence<\/em>, was recently reviewed\u00a0<\/a> in the Wall Street Journal by Northwestern University Law School Professor John McGinnis.\u00a0 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.\u00a0 Instead, and somewhat unexpectedly, Corlucci argues that Justice Kennedy\u2019s approach to the interpretation of the Constitution is best understood as seeking to advance a moral imperative.<\/p>\n Justice Kennedy\u2019s objective, according to Corlucci, is to vindicate and preserve an ever increasing share of individual liberty within our broader society.\u00a0 Here is the key portion of Professor McGinnis\u2019 review:<\/p>\n Looking for the sources of Justice Kennedy\u2019s moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae.\u00a0 In Roper v. Simmons<\/em>, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit \u2018irreparable corruption\u2019 \u2013 a phrase that a secular judge might not have used.\u00a0 (Justice Kennedy is an observant Catholic).\u00a0 It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be \u2013 because of his emphasis on individual rights \u2013 the decisive vote for preserving the abortion status quo.<\/p><\/blockquote>\n It is intriguing to consider whether there is, in fact, a demonstrable connection between Catholic social thought and Justice Kennedy\u2019s interpretation of an evolving liberty interest guaranteed by the Constitution.<\/p>\n Should this matter?\u00a0 Few people would argue that all religiously observant \u00a0judges\u00a0are necessarily intent on imposing a theocratic rule of law (turning the gavel into a cross, as it were).\u00a0 Moreover, it is neither possible nor advisable to seek to eliminate all religiously-derived conceptions of morality from the judicial decision making process.\u00a0 However,\u00a0the intersection of the Catholic faith and the judicial function remains troublesome for some, perhaps\u00a0because it takes place out of the sight of the public and within the mind of the judge.\u00a0<\/p>\n A third recent event raises this\u00a0same issue.\u00a0 There has been a great deal of consternation in the blogosphere over Professor Alan Dershowitz\u2019s intemperate attack<\/a> on Justice Antonin Scalia\u2019s dissent from the Supreme Court\u2019s August 17 order in the case of In re Troy Anthony Davis<\/a>.\u00a0<\/p>\n In that case, Justice Scalia (along with Justice Thomas) dissented from the Court\u2019s order directing the district court to consider whether or not evidence unavailable at the time of trial now indicated that a convicted felon, presently on death row, was in fact innocent.\u00a0 Justice Scalia disagreed with the Court\u2019s order, stating in his dissent<\/a> that “[t]his Court has never <\/em>held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is \u2018actually\u2019 innocent.”\u00a0<\/p>\n Professor Dershowitz charged Justice Scalia with hypocrisy, claiming that Justice Scalia was willing to impose a constitutional rule of habeas corpus that was in conflict with Catholic teaching.\u00a0 For Dershowitz, it is self-evident that it is immoral to execute a man who you know is innocent.\u00a0 Apparently it is similarly self-evident that Catholic moral teaching reaches the same conclusion.<\/p>\n If Professor Dershowitz wanted to start a heated debate on the topic of Catholicism and the Supreme Court, he succeeded.\u00a0 Some of the more interesting responses to Professor Dershowitz include this post <\/a>by Professor Richard Garnett and this post <\/a>by Professor Robert Vischer.<\/p>\n