Justice Sotomayor, Justice Scalia and Our Six Catholic Justices

Now that Justice Sotomayor has officially donned her robe, I'd like to muse a bit about the extraordinary fact that we now have six Catholic justices. This is a great testament to our nation's capacity to grow more tolerant over time. For most of American history, anti-Catholic prejudice was severe in the United States, and the idea that we would one day have six Catholic justices was about as likely as the prospect that we would one day have an African-American president.

But does the religion of the justices in any way matter to the business of the Supreme Court? A lot of attention was paid during the confirmation hearings to Justice Sotomayor's Hispanic heritage and the impact it might have on her jurisprudence, but her faith was largely backgrounded, as if being Latina matters but being Catholic doesn't.

Several years ago, I posted a piece ("Our Faith-Based Justices") about the Supreme Court's decision in Gonzales v. Carhart, in which the Court, in a five-to-four decision, held constitutional a federal law prohibiting so-called "partial birth abortions." Several years earlier, in Stenberg v. Carhart, the Court, also in a five-to-four decision, had held unconstitutional a virtually identical state law.

What interested me most about Gonzales was that, in my judgment, the Court had no reasonable basis for not following its own prior decision. Not much had happened in the law in the years between the two decisions. The only really significant change was that Justice Alito, who voted with the majority in Gonzales, had replaced Justice O'Connor, who had voted with the majority in Stenberg.

Ordinarily, in the face of such a clear and recent precedent, we would expect the justices to follow the prior decision. What intrigued me about Gonzales was that the five justices in the majority couldn't bring themselves to apply the early decision. Instead, they purported to distinguish Stenberg, on grounds that just were not persuasive.

In seeking an explanation for this rather odd behavior, I pointed out the admittedly "awkward" fact that "all five justices in the majority in Gonzales were Catholic," whereas the four justices who were "not Catholic all followed settled precedent." I therefore raised what seemed to me the obvious and interesting question whether, in deciding Gonzales, the five Justices in the majority had "failed to respect the critical line" between their personal religious beliefs and their responsibilities as jurists.

I knew, of course, that this was a highly inflammatory question, but I felt it needed to be asked, because I found it difficult to conceive of any other plausible explanation for why the five justices in the majority declined either to follow or to overrule the governing precedent.

Not surprisingly, this piece generated a lot of attention - and controversy. Quite a few people accused me of being an anti-Catholic bigot. I was confident, though, that I would have raised precisely the same question in a case in which all five African-American justices, or all five Jewish justices, or all five women justices voted together in a similarly controversial decision involving African-American, Jewish, or women's issues, especially if all the other justices voted the other way.

What did surprise me, though, was the reported response of Justice Antonin Scalia. Joan Biskupic, a journalist who has covered the Supreme Court for U.S.A. Today and the Washington Post, and has written a fine biography of Justice Sandra Day O'Connor, has now written a soon-to-be-published biography of Justice Scalia. During an interview with Justice Scalia for her book, Biskupic asked him about my piece on Gonzales. According to Biskupic, he became quite agitated and said some pretty harsh things about me. (You'll have to read Biskupic's book to learn the details).

This surprised me, because Justice Scalia and I have known each other for many years. We served together as colleagues on the faculty of the University of Chicago Law School before President Reagan appointed him to the bench, and I have long considered him a friend, even though we often disagreed about legal issues. According to Biskupic, he was still angry more than a year after my piece on Gonzales first appeared.

Of course, I can understand why Justice Scalia is upset. He considers himself a highly principled jurist who would never consciously allow an extraneous consideration to enter his thinking. I have no doubt that Justice Scalia is completely sincere in his belief that he neutrally "applies the law" and is completely uninfluenced by his personal beliefs and values.

I've thought a lot about this in the months since Biskupic informed me of Justice Scalia's response, especially in light of all the talk about Justice Sotomayor's Latina background during her confirmation hearings. In my view, it is inevitable that a justice's background, experiences and values will to some degree inform his or her jurisprudence, at least in some cases. This can sometimes enrich a justice's understanding, but it can also distort it in ways that are inappropriate.

Was my observation about Gonzales unfair? It was based on a single data point, and it is difficult (though not impossible) to draw sound conclusions from a single observation. So, here are some additional data that I find intriguing.

The ten justices appointed since the 1973 decision in Roe v. Wade have cast a total of forty-five votes in cases involving the constitutional right to abortion. Twenty-two of those votes were cast in support of abortion rights (49%); twenty-three were cast to contract abortion rights (51%). In those ten cases, the five Catholic justices cast only one vote in support of abortion rights (6%), and sixteen votes to contract abortion rights (94%). The five non-Catholic justices (two Jews and three Protestants) cast twenty-one votes in support of abortion rights (75%), and seven votes to constrict those rights (25%). That's a pretty considerable difference.

Perhaps the real explanation for this difference, however, is not religion, but judicial philosophy. That is, perhaps justices appointed by Republican presidents oppose abortion rights, whereas justices appointed by Democratic presidents support them. But it is not so simple. If we consider the eight justices appointed by Republican presidents since Roe, we find that they have cast 18 votes in support of abortion rights (44%), and 23 votes to contract abortion rights (56%). When we break these votes down by religion, we find that the Catholic justices appointed by Republican presidents since Roe have cast only one vote in support of abortion rights (6%), and sixteen votes to limit those rights (94%). The non-Catholic justices appointed by Republican presidents since Roe have cast 17 votes in support of abortion rights (71%), and 7 votes to constrict those rights (29%). Thus, even among justices appointed by Republican presidents since Roe, it appears that religion significantly explains their voting pattern on the issue of abortion.

But perhaps the real explanation is that the Catholic justices appointed by Republican presidents since Roe are generally more conservative than the non-Catholic justices appointed by Republican presidents since Roe, so that it is ideological difference rather than religion that explains their voting pattern in abortion cases. That, too, however, seems not quite to be the case. For example, if we consider the voting pattern of these justices in a somewhat related area of constitutional law - the interpretation of the Equal Protection Clause, we find that the Catholic justices appointed by Republican presidents since Roe have voted to invalidate challenged laws under the Equal Protection Clause 46% of the time, whereas the non-Catholic justices appointed by Republican presidents since Roe have voted to invalidate those laws under the Equal Protection Clause 42% of the time. Thus, at least in the Equal Protection context, religion does not appear to play a significant role.

Of course, none of this necessarily "proves" anything. The five Catholic justices appointed by Republican presidents since Roe often vote together on a range of issues having nothing to do with their religion. Moreover, it is certainly the case that not all Catholic justices oppose the constitutional right to abortion. Justice William Brennan, for whom I was a law clerk in the year Roe was decided, was a Catholic justice who strongly supported Roe v. Wade, and it seems likely that Justice Sotomayor will follow Brennan's example. But Gonzales does raise interesting questions about whether and to what extent judges are and should be influenced by their religion, their ethnic background, their race, their life experiences, and their personal values.

Comments

[rosemacaskie]

In the Opus Dei freindships are sullied by the requirment that you sneak on your friends and worse these people can take innocent material and turn it into a weapon. If you are normaly respectful of other peoples intelligence and abilities and once say something arrogant then that arrogant thing will be used to reduce your credit in your own eyes and in the eyes of others. This is frightening, the more so as it is a distortion, it changes reality, the ground beneath our feet and though reality must always be partial, we don't live in other peoples heads and can often only guess about them, systematic distorsion is more than we should allow. This from my experience with catholics here in Spain, who don't say which group they belong to so that denouncing them is difficult, combined with the stories of people from the opus dei that cry out about unfriendliness in the group because you are expected to spy on each other. A young man was brought to account for taking one walk by the sea in a mounth he was accused of was a lack of love for christ and lack real commitment, he should have been working. Read stories in the site "opus libros". rose macaskie.

[rosemacaskie]

Mr. Stone says that maybe Scalia was cross because he is a decent jurist. I know Spanish Catholics, their fidelity to the opus would come a proud first with them. Scalia could not have risen in Opus ranks if he was not dishonest; the honest ask embarrassing questions, you would have to guess some pretty complicated double dealing if you wanted to avoid askingquestions that would annoy them and rise in ranks there. He would try to put you off criticizing him by a attack of fury.
My sources of information about the group are "odan" the american site for helping those that come out of the opus dei,the spanish sister site "opus libros",and the book, "Ser Mujer en el Opus Dei Isabel de Armas.
One of the papers of the site, “odan”, "Sample Opus Dei Informational Flyer" I have just looked it up under that name in google and found it, talks in the section "dangerous practices", of the members being obliged to open files on outsiders they get to know. The opus accumulates archives on members of the public. Is this legal in America? Would not a judge have to tell on an organization that did such a thing? The archives allow them to fake miraculous information on people and so overwhelm them, and form other strategies to catch them. rose macaskie.

[FrankN]

The reason for the predominance of (right leaning) Catholic justices becomes clearer if you think back to basic probability theory. The right wing is looking for ideologues of a certain mindset who will rule consistently in their favor - in the Scalia and Alito mold. They want someone who's thinking is male dominated (patriarchal), authoritarian and concerned with protecting property rights and the wealthy. If you're a right winger screening for those criteria, and you'd also like your Supreme Court nominee to have the appearance of traditional religious values, your pool of eligible nominees will include a high proportion of Catholics. Sure there would be other Christian denominations in the pool, but I think Catholics have stressed scholarly accomplishment perhaps more than other Christian fundamentalists.

[spartanmom]

Catholicism is also just about the most legalistic religion on the planet! I'd like to know what the national numbers are for Catholic lawyers!

[AntiClast]

Scalia wrote a minority opinion on the partial-birth abortion that "the government should prevent a woman from making a mistake she might later regret". Thomas also signed it.
This sounded to me like remarks I have heard from some Catholics, that authority is to protect you from your own bad decisions. I am certain not all Catholics or priests would agree, but it is a strain of Catholic thinking. No other religion would say it.
Scalia's opinions are often very authoritarian.
I would note that Catholic woman have sometimes said they regret having a baby, or worse, complained to their children that they were born. So some regret the other decision.
I would also note that one use of partial birth abortion is to remove a dead baby. It is a less detrimental procedure to the mother.
The press -- nobody -- picked up on Scalia's opinion that the government can stop us from doing something we would later regret.

[libertasdon]

"But Gonzales does raise interesting questions about whether and to what extent judges are and should be influenced by their religion . . . ."

The professor offers no analysis of any decision, nothing other than his opinion and few coincidences of religion and voting patterns that fall short of statistical analysis by a few billion light years. This isn't legal analysis. This isn't statistical analysis. This isn't scholarly or informed analysis of any kind.

[norepublicanleftbehind]

Can we have a Pagan or an Atheist next time?

[bootooyoo]

Or an agnostic, or a hindu, too.
A rasta wouldn't be a bad idea either. Maybe we'd finally get sane drug laws.

[billyboil]

"Justice Scalia is upset. He considers himself a highly principled jurist ..........."
Yes - principles such as rascism, bigotry and mysogany !!!!!
When, oh when, will america start truly respecting individual human rights, rather than simply paying them lip-service?

[hoopesaz]

"Yes - principles such as rascism, bigotry and mysogany !!!!!"

Back it up. In what cases did Scalia express any of these principles in his opinion or dissent? The court is often faced with very narrow interpretations of the law that, when reported upon, get generalized into very broad, simple decisions. I don't recall reading a dissent or opinion by any of our current justices where it was evident they were simply excercising some bias or outright hatred.

[silverball]

....so, scalia isn't one of the most authoritarian and male oriented justices EVER???.....where have you been??? and you are probably worried about "activist" judges...LOL...then you should be worried about scalia, thomas (he follows, as he has no clear independent thinking), alito and roberts....when you DON'T follow precedence, you are being an ACTIVIST!!!......

[UnqleFungus]

One thing the author doesn't say is the party affiliation of the President nominating the justices, and that the debate over abortion rights looms over each appointment. Broadly speaking, if the Republican base is largely pro-life, and as a group Catholics are pro-life. Democrats have appointed only three, and Republicans have nominated six. The odds seem to be in favor of the current make-up.

[Joe The Nerd Ferraro - Huffpost Blogger]

Sir, I would dispute your assertion that on the whole Catholics are Pro-Life. There is a large percentage of Catholics who are Pro-Choice. We may not attend Mass all the time, we may go by names like Recovering­-Catholic, but we are Catholic. What you are seeing is a Catholic leadership not in sync with it's flock.

[UnqleFungus]

Yet again, I eat my words with ketchup. As Winston Churchill said, “I am always ready to learn although I do not always like being taught. “

I based my response on personal observation, not on research. I know many very progressive Catholics, but in my experience they are the exception, not the rule.

However, a Gallop poll conducted in May 2009 shows that the percentages of self-identified pro-life Catholics and Protestants (or “other Christians”) have remained similar for the last decade. Those who identified themselves religiously as “other/none” are roughly half as likely to identify themselves as pro-life.
http://www.gallup.com/poll/118399/more-americans-pro-life-than-pro-choice-first-time.aspx

Thank you for challenging my assumption.

[vim876]

Religion does not have the same effect as ethnicity, largely because people can choose their religion. As the Catholic Church has become less tolerant of non-conservatives since the 1960s, many liberal Catholics have left the church, but many conservatives have also converted.

[HadBetterDays]

most people don't choose their religion, they accept the religion of their parents. It's how they were raised and thus becomes a part of their DNA. Very few people depart from this

[drjay79]

They can rise above it.

[vim876]

People can choose their religion, and many do. Look at the recent rise in the number of atheists and agnostics.

[DC]

There is consternation is some groups that the Supreme Court happens to be filled with Jews and Catholics. As one Evangelical Theologian opined in response to this observation, "we do not educate and train intellectuals or critical thinkers. "

[wildedge]

From a phenomenological perspective, that the majority of our SC justices are Catholic is historically and sociologically interesting is undeniable - but not for any of the reasons given by this article. The matter cannot be properly discovered by a case-by-case review. The real question is not what the justices believe in specific issues; for instance, ethnically, in some Catholic countries (eg Ireland), adultery is an unforgiveable sin, while in others (eg France) it's just an acceptible given due to the Church's injunctions against divorce.
No, the real issue here is how the Church understands the function of law, and how this view has been disseminated and restructured in different countries over time - again, a for instance - Augustine (trained as a lawyer) didn't think much of human law; Aquinas, the trained logician saw matters differently. In Ireland the law was considered subservient to the Church, in France, the Church was considered subserviant to the needs of the successful practice of government. But these are just broad observations, easily misunderstood; the issue requires far greater discussion than can be given it here. Stone wins a plus for raising the issue, a minus for oversimplifying it.

[johnsopinion]

I think this is all 'much ado about nothing.'

Ask 50 Catholics a "Catholic" question, 50 Jews a "Jewish"
question, 50 Islamists an "Islami" question, 50 Christians
a "Christian" question and you will get 200 slightly different
answers. Why?

It is obvious in Obama's election that people wanted change.
In JFK's election (a Catholic), the people wanted change.
In Nixon's election, people wanted change.
In Clinton's election, people wanted change.
In Bush's election (both), people wanted change.

Change comes about in multitudinous forms. Perhaps again
the people want a change in the Supreme Court and it takes
a Latino Woman to accomplish that change (through Obama)
regardless of or because of -- the fact that she is Catholic.

As you point out, we tried courts without Catholics and I'm sure
EVERYONE agreed with their decisions, right?

Or maybe it's the fact that she's a ...... WOMAN !?!?!?!?!?
Are any males feeling threatened by her? No? Sure?

Much ado.

[vim876]

Um, Catholics ARE Christian. Yeah.

[RedDogBear]

So what is your point? All catholics are christians but not all christians are catholics. I think the point that johnsopinion is making (which I agree with) is that its silly to divide people up based on one metric such as religion (and I would add race, gender, sexual orientation) and think that means much in terms of their political philosophy. Which pretty much invalidates the authors main point.

[UnqleFungus]

That's a good point. Perhaps we need another article comparing decisions by gender, age, ethnicity, and eye color. Um, then again perhaps not. :{D

[RedDogBear]

Exactly. Too many blue eyed right handed christians on the court. We need more atheist left handed brown eyed people.

[USAFree1]

I have asked myself the same question. Now the conservative justices who are also Catholic have over and over violated their religious principles as laid by their Pope and others who make doctrine. For example you see this in worker's rights in Ledbetter vs Firestone, expanding rights of corporations through contracting Campaign Finance legislation, and expansion of Presidential power by validating Bush's right to hold citizens without charge. It will be interesting to see how Sotomayor will vote and write of the same types of issues.

[egaeus]

I think it's as valid to ask whether Catholicism affects the decisions of judges as it is to ask whether Judaism influences the decisions of what films get made by studios run by primarily Jewish decision makers. Arabs are generally caricatured and demonized in most entertainment venues and have been since the early days of Hollywood before 9/11 and Muslim fundamentalism.

Positive portrayals of Arabs and their families are rare, whereas negative portrayals of Jewish individuals are equally as rare. That's not to say there aren't stereotypes (i.e., the Jewish mother, the Jewish nebbish, etc.); however, whereas an Arab might be shown as brutal animals blowing up children without conscience, a film like Munich portrays Jewish assassins as being above harming children, a sensibility not in evidence in the quagmire of the Israeli/Palestinian conflict in which children on both sides are often the victims. Can this one-sided treatment be the result of the influence of attitudes toward Arabs held by power brokers with antagonistic attitudes toward this ethnic group? If it is deemed invalid to pose such a question, does that also invalidate the asking as to whether Catholicism is an influence in the Supreme Court?

[Doofus]

That would be true (only) of any 'minority' group that achieved majority status
on the Court. The issue is not really about Catholics on the Court, it's about a
Catholic majority. Maybe also that the conservative members are all Catholic.

It's certainly true about protestant, white males on the Court, historically.
For some reason the issue just doesn't seem to come up often (enough).
That would be because they haven't been considered a minority.

[Patrick Garies]

I think you're comparing apples and oranges here.

Film directors have a script and they get to do whatever they want with it with only marginal rules. They aren't expected to be neutral and they have creative leeway.

Supreme Court justices, on the hand, are expected to be as objective as possible and have a script that they're supposed to avoid deviating from in the form of written laws and precedent. They're only supposed to read the script and determine what it means.

I think it's completely valid to ask whether someone's religion is biasing their views in particular when you have something to compare against: a virtually identical circumstance (i.e., a case) with a totally different result and an unconvincing justification for the difference in result. (I'm referring to the case in the article, but I haven't actually read those cases.)

[vim876]

It is not the same. Jews and Arabs in the aforementioned context are ethnicities. Catholicism is not consistently affiliated with a single ethnicity. Irish, French, Italian, Latino/a, and many other ethnicities are majority-Catholic.

[ruddyoak]

Stone has a point, but upon closer examination, I think Justice Sotomayor comes from the other side of the catholic divide. The divide is an economic one: my blue collar Catholicism was strong on unions, small d democracy, and social justice to a degree that "North Shore" Catholicism was not. Indeed, Opus Dei is a balm for corporate greed. My blue collar catholic schooling leads me to believe that one can be Catholic, be personally opposed to abortion as a "sin", and still believe that the law and the Constitution permit a woman to make this choice.
I certainly feel that I have not left the Church, but that the Church has left me. We on the left have abdicated our voice in the Church and that has allowed the reactionary right to occupy the void. The Opus Dei and Knights of Colubus crowd have moved in to overturn Vatican II, liberation theology, and the Church's historical commitment to social justice. The abortion issue, while important, is not morally more important than children living in misery, poverty, and unfulfilled lives. Embarrassingly, Catholic bishops now ignore society's larger ills and make silly pronouncements barring from communion politicians who support the legal principle that choice is a protected 14th Amendment right. And now they want to investigate nuns, the last vestige of social justice in the official Church.
I'd like to think that Justice Sotomayor, whose Catholic experience is probably closer to mine than to Scalia's, shares my small d worldview.

[anelder]

So well said.

[vim876]

My parents, both from upper-middle-class Catholic families, were taught what you call 'blue collar' Catholicism. It isn't just social class that affects this, it's also family ethnicity and, if you go to Catholic school, which order educates you. It's fairly common knowledge, for example, that Jesuits tend to be relatively liberal. My siblings and I were raised Catholic, but as young adults (18-24), all of us have left the church, partly because we felt driven out. Our parents are what they call "Vatican II Catholics," and the values they raised us with are largely antithetical to the values of the modern church. My brother is an atheist; he believes that religion, particularly Catholicism, causes hate. My sister is agnostic, but also feels that Catholicism is antithetical to compassion. And I alternately attend a UCC church and a Quaker meeting. In a generation, the conservative bent of observant Catholics will be even higher, because many of the children of "Vatican II Catholics" will raise their kids in other churches, or without churches at all.

[AntiClast]

I hope so.