Catholics on the Court

The Inlander | January 18, 2006
Over the past two decades, Republicans have successfully moved the Supreme Court to the right; notably, however, they have accomplished this not by relying on their party’s base of Protestant fundamentalists, but rather via Catholic jurists. Conservatives have made it a seller’s market for Catholic intellectuals.

Assuming Alito’s confirmation, 12 Catholics will have served on the Supreme Court, with five of the 12 serving now (or soon): Kennedy, Scalia, Thomas, Roberts and Alito. All five were raised in devout Catholic families. Two attended parochial schools, two public schools and one a military academy. Two did their undergraduate work at Ivy League schools, one graduated from Stanford, one from Georgetown, another from Holy Cross. All graduated from Ivy League law schools.

New York Times columnist David Brooks calls attention to the Democrats’ loss of the white, working class voters — but he is really talking about the Catholic middle and working class, the Alitos of America. Brooks, parroting conventional wisdom, blames it all on the ’60s: soft on crime, coddling criminals, weak on national defense, too many drugs, sexual freedom and affirmative action, followed in the ’70s by abortion. All the usual suspects.

And the Democrats haven’t learned anything, says Brooks. During the Alito hearings, they charged the nominee with being too tough on crime, overly deferential to executive power, overly protective of property rights and insensitive to discrimination.

It would be refreshing if just once a professional ’60s-basher like Brooks would avoid romanticizing the “silent majority,” those hard working, God fearing, patriotic, white, working class guys who made life so wonderful back in the ’50s and ’60s — all while they demonstrated little interest in the civil rights movement, environmental problems, poverty or even the disaster that was Vietnam. These good folks were too busy waving flags, cashing their Social Security checks and enjoying their FHA-financed Levittown split-levels, while paying for their kids’ college educations with federal grants and Granny’s medical bills with Medicare.

But was it really the ’60s that formed our five Catholic jurists? Or even the Warren Court? Instead, was it something deeper, more timeless and not nearly so much related to circumstance?

These judges are products of the “Culture of Catholicism” (to borrow from the subtitle of Thomas Day’s delightful book, Why Catholics Can’t Sing) — a culture Day describes as a shared history and cherished symbols, myths and rituals that bring a sense of order to the chaos of the universe.

Scalia and Thomas have pleased result-oriented conservatives through their deference to executive power, their narrow reading of civil liberties, expansive protection of private property rights and restrictive view of interstate commerce. Is this, for them, bringing order to the chaos of the universe? If so, you would expect to find similarity between their jurisprudence and that of the Catholic Supreme Court justices who preceded them. Interestingly enough, the records reveal an identical pattern, with two notable exceptions: FDR appointee Frank Murphy, who came to the bench from a political career, and Republican William Brennan, who remains to be explained.

Deference to executive power? Consider Truman appointee and Catholic Sherman Minton. He cast a dissenting vote in the 1952 “Steel Seizure Case.” Citing a national emergency (the Korean War), Truman determined that a strike would not be in the national interest and seized the steel mills so as to keep them operating. The Court majority disagreed. (Do we need to ask how Minton would rule on Bush’s secret surveillance initiative?)

Civil liberties? With the single exception of Murphy, who characterized Roosevelt’s roundup of Japanese-Americans as the “ugly abyss of racism,” we see emerge a pattern of nearly blind deference to authority.

Or take property rights and interstate commerce issues. Justice Edward D. White, a Louisiana Democrat educated at Georgetown, usually sided with the post-Civil War Court majority, which most often ruled against reform legislation on the grounds that government was interfering with the right of people to make contracts. We also remember Pierce Butler as one of the justices who always voted against FDR’s New Deal. Warren Harding nominated Butler, a Democrat, because Butler was a Catholic with known conservative views. Finally, no discussion of Catholic judges and property rights would be complete without mention of Roger Taney, the very first Catholic justice and author of the infamous Dred Scott decision.

Given what we know about how Catholic justices have voted, had Thomas or Scalia been on the court the first half of the 20th century, they likely would have lined up with their conservative Catholic colleagues, like White and Butler, against such giants as Oliver Wendell Holmes, the first John Marshall Harlan and, later on, even the moderate Republican Harlan Fiske Stone. This pattern cannot be dismissed as pure coincidence.

So we are left to explain why it is that the culture produces this pattern, this jurisprudence. Would that our drone-on Democrats had asked the person who might have an idea or two on the matter:

Judge Alito, when considering a case, no doubt you believe you are making a disinterested interpretation with reference to the facts, original intent and precedent. But is it possible that your perceptions and understanding reflect — perhaps more deeply than you know — those internalized messages you have received over the years from having grown up in a tight Catholic community, taken together with your reading of, say, St. Thomas Aquinas and maybe Aristotle, too? Could we explore this with you?

Defined as he is by the “Culture of Catholicism,” I think that Alito would have been both surprised and intrigued.

The Inlander

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