Tuesday, August 18, 2009

Supreme tilt of faith.

When Al Smith ran in 1928, Americans simply weren’t ready for a Roman Catholic
president.  It took another thirty-two
years for Jack Kennedy to break that barrier, but only after reassuring the
country of his independence from the Pope and with a razor thin plurality.  By 1960, term limits had been imposed
on the office, which possibly worked in his favor.  While no Catholic has held the presidency since, the idea
that a candidate’s personal beliefs should be an impediment seems, and hopefully
is, so “yesterday”, unless of course the person happens to be an avowed atheist
or a Moslem.

Perhaps the best evidence that most religious litmus tests are behind
us can be found in the Supreme Court where Catholics fared marginally
better early on. Roger B. Taney,
born during the revolutionary war, was the first to be appointed and indeed served
(1836-64) as our fifth Chief Justice, an office two others (Edward White and
John Roberts) have held since. We’ve
come a long way since the country rejected Al Smith, and fortunately so.  Catholics hold offices at almost every
level of government including two of the highest, Speaker of the House and Vice
President.  Not only was it
heartening that Sonia Sotomayor was confirmed as the first Hispanic Justice but
also that her religion was never at issue.  At the same time, while given only passing notice, one can’t
help being struck by the unprecedented religious tilt of the Roberts Court.  With her ascendancy, its life tenured
members comprise one Protestant, two Jews and now six Roman Catholics,
numerically a decisive majority.  From
the day Andrew Jackson appointed Taney 173 years ago, twelve more Roman Catholics
have come to the court and remarkably half of them sit today.  There is no reason to believe that a
Catholic justice will be any more or less ideologically bound by faith than
would a Protestant or a Jew.  Nor
can we assume one will lean more to the right or left than the other. Clarence
Thomas is seen by some as perhaps the most doctrinaire conservative on the
current court but the late William Brennan (also a Catholic) was its iconic
liberal.  That said, the
significant Catholic majority does raise at least the potential of a problem
worthy of discussion, if only academically.  Any good lawyer will tell you to consider not only the best
but also the worst-case possibilities in any situation. 

The Catholic Church remains among the most hierarchical of all faiths
and is especially distinguished in having a single, absolute and infallible leader.
What The Vicar of Christ promulgates is ultimate doctrine, subject to change
only by himself or a subsequent pope. Catholics are expected to follow his dicta.  Recent surveys suggest that in fact a
majority don’t necessarily do so, especially on hot button issues.  Nevertheless, it was the Church’s prescribed
way that gave voters pause in 1928 and 1960 and, in theory at least, remains
worth considering today in the face of such a lopsided tilt of faith on the Supreme
Court.  We do know that several of its
members are especially devout and, in at least one case for sure, that such
beliefs can carry into the courtroom. 
During formal arguments in 2005 regarding the placement of the Ten Commandments
in public places, Justice Antonin Scalia declared from the bench “that
[our] government comes – derives its authority from God”.  That view may account for what he
describes as his “originalist” view of the Constitution.  It is a term with theological overtones
that eschews the idea of dynamic evolving law.  It calls for adherence to original meaning, according a
sacrosanct aura consistent with an extension of the divinely revealed Word.  No other justice self describes as an
originalist or ascribes the divine to law in that way, but the Scalia example
shows what happens when the lines between faith and law blur.

So in that light, it’s not irrational to be concerned about the
religious affiliation of a majority on the court, especially if they belong to a
hierarchical church.  That’s especially
true when looking at what is likely to be on their docket in the years ahead.  In that, the issue of reproductive
choice comes to mind first but so do matters of same-sex marriage, end-of-life and stem cell research.  In each of these the Pope, and thus the
Church, have unambiguous positions based upon what are considered fundamental
tenants of their faith.  The American
Bishops, for example, generally support healthcare reform but have made it
clear that they will oppose any coverage of abortions, considered the taking of
human life which they believe begins with conception.  It seems reasonable to conclude that several of the Justices,
including Scalia, (assumably as a matter of personal faith) favor overturning
Roe and, at the very least, would be prone to imposing more restrictions on
abortions even were they to remain (as I would hope) legal.

The Church has already demonstrated how it views office holder members
who stray from doctrine.  During
the 2004 campaign several bishops withheld Communion from presidential candidate
John Kerry because of his pro-choice stand.  In the 1995 encyclical, "Evangelium Vitae," (The
Gospel of Life), considered among his most important, Pope John Paul, II (revered
by his successor) specifically condemned the growing acceptance of abortion and
for that matter of euthanasia.  So
it is fair to wonder what kind of pressure might be brought to bear on six
Roman Catholic justices who hold absolute determinative power over the fate of these

I know nothing of Justice Sotomayor’s religious beliefs; some describe
her as more a cultural than religious Catholic.  While it’s true that, as a group, Hispanics (whether Protestant
or Catholic) tend to be more religiously conservative that may have no bearing
on her decision-making.  Indeed, we
have every reason to think that, on civil matters, she will most likely side
with the court’s liberals.  At the
same time, and despite the disingenuous arguments to the contrary during her
hearings, I believe we all do come to our work with life experiences, not to
mention personal beliefs.  Who we
are and where we come from impacts on our decisions, sometimes determines them.  I wish it were possible to believe
without question that jurists check their personal religion at the courtroom
door, even if I’d like to think most or all do just that.  The reason for any concern in this
instance is that the political conservatism out of which many in the current court
members come has been so intertwined with far right religious ideology.  Perhaps Justice Scalia personally believes
that our government (and assumably laws) derives directly from God.  Many people of different faiths hold
that view not only about laws but also about everything we touch.  It is when he injects that idea into a
case before the court, that it becomes more than a personal view, especially if

Our democracy is founded on the idea of checks and balances.  The theory is that the three branches
of government keep each other honest and protect us against abuses.  The reality of checks and balances
doesn’t always live up to the promise, certainly not equally so.  The ultimate check in our system resides
not in the interaction of our governmental braches but in the voting booth with
one notable exception, our federal courts.  Having an overly religiously driven president, senator or representative
is correctable; having a similarly inclined Supreme Court Justice is not.  The idea that parochial religious views
might themselves be tenured in the highest court of the land, albeit only
hypothetically so, is unnerving and would be regardless of what faith they
might represent.  So to me, the
real question raised by the court’s Roman Catholic tilt is whether the
potential it raises, however remote, isn’t another reason to revisit the logic,
and indeed the possible danger, of lifetime tenure.  I say this knowing full well that some might construe such a
question generally prejudicial or specifically anti-Catholic.  After all, for virtually all of its
history the Supreme Court has been dominated by Protestants not to mention that
group called men and few have complained. 
It’s a valid point.  So let
me add that my concern is equally with the potential abuse of a majority tilted
to the right, left or for that matter one gender.

The unquestioned religious imbalance on today’s Court, whether it will
play out as I suggest it could in a worst case, is just another reason to consider
the merit of imposing some kind of term limits for Justices.  The existing system was conceived at a
much earlier time, and with the intention, I would suggest naively, of insuring
objectivity.  “Blind justice” is
perhaps a noble aspiration but it is largely a myth.  Given the relative young age of the ideological conservatives
now sitting, the court is likely to tack right for the foreseeable future,
regardless of where the public may be.  Now we can add that, and for the same reason, the likelihood
of a long standing Catholic majority.  We shouldn’t assume that having Catholics or Jews in the
majority would be any different than having had Protestants for all these years.  That said, life tenure is a very long
time and the current makeup of the court, religious and otherwise, only brings
that into sharper focus.

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