A Double Standard for Catholic Judges?

by Gerald J. Russello - September 24, 2007

Reprinted with permission.

The recent partial-birth abortion case, in which the Supreme Court upheld certain restrictions passed by a state legislature, generated what has become the usual – and uncontroversial – anti-Catholic venting by the nation's chattering classes. Commentators huffed that the majority in the case was composed of Catholics who, it was whispered, may have acted on what they believe to be true! Never mind that the Court majority ruled on perfectly defensible constitutional principles to permit what the democratically elected legislature did. And never mind that only the Court's Catholic judges are treated to this kind of bigotry. To liberal critics, all that is necessary is for a Catholic to rule against them, and the suggestions of blind obedience to the Vatican and un-American activities are not far behind.

For Catholics, this sort of abuse is par for the course, and simply one more hurdle Catholics face in public life; as writers as varied as Kenneth Woodward and Rev. Andrew Greeley have noted, anti-Catholicism remains an intractable part of American life. However, the controversy raises a more interesting issue: What if the critics of Catholic judges are, in a sense, right? Justices Antonin Scalia and Samuel Alito, of course, are not voting at Rome's direction, but what if there is something about what the contemporary liberal state requires of its judges and legislators that is somehow antithetical to how Catholic judges understand the law? Some years ago, the journal First Things asked a similar question in response to decisions such as Planned Parenthood v. Casey; the situation has barely improved since then.

This has not always been the case, of course. After all, despite widespread hostility (which caused the Church to create her own institutions – churches, schools, hospitals, orphanages, relief services – as a way to survive), Catholics had to acknowledge the opportunities and religious freedom this new world offered. And since the days of Rev. John Courtney Murray, S.J., and Vatican II's Declaration of Religious Freedom, American Catholics have turned from hostility for a pluralist democracy to a more informed engagement with the liberal state.

Yet despite improvements in the relationship between Catholicism and liberalism, there is still a deep gap. There seems to be a limit to the level of cooperation, but the limit appears to be with liberalism. As non-Catholic scholar William A. Galston has written, "Much of the movement has occurred on the Catholic side." That is to say, while Catholicism has come to understand that some modern notions of freedom, constitutional democracy, and pluralism need not be incompatible with the Faith, liberalism has been unable to accommodate itself to believers in transcendent truth, or to accept them as full members of the political community.

Galston's insight is reflected in our legal and political culture. During the legal revolution over the last 40 years, judges have enshrined a rights-obsessed individualism as the core of constitutional liberty, largely endorsing a corrosive pop culture through decisions on free speech and pornography and rejecting the ability of localities to regulate their community. Moreover, these decisions have usually circumscribed religious liberty from a foundational freedom to one that can be overcome at the merest hint of "intolerance" or in the face of any secular value. Religious institutions have been forced to contravene their beliefs in order to exist, and in some cases the fact that legislators may have had religious reasons for supporting a law has been sufficient to invalidate it.

These positions leave a Catholic judge who takes the Faith seriously at a disadvantage. The premises of the liberal constitutional order have become so pervasive that they now form the framework of the debate, and they leave no place for the introduction of the Catholic view of the person, for example, or its principle of subsidiarity as a limitation on government power. Justice Scalia has argued, in the context of the death penalty, that a Catholic judge should consider resigning if he believes a decision allowing the death penalty would conflict with the Faith; however, taken to an extreme (and by judges less intellectually rigorous than he), there would be precious few Catholic judges left on the bench.

It is clear that Catholic judges need to navigate a culture hostile to faith while remaining obedient to their role as judges. Fortunately, there are resources for Catholic judges to turn to in examining these issues. A group of legal scholars, for example, is trying to incorporate elements of Catholic social teaching into a legal theory to cast new light on federalism, legal ethics, tort reform, corporate law, and other areas. In addition, there are figures such as Orestes Brownson, the former transcendentalist and friend of Ralph Waldo Emerson who converted to Catholicism and became one of America's sharpest political and cultural critics. Brownson's most famous book-length work is probably the political treatise The American Republic, published in 1865 at the close of the Civil War. Arthur Schlesinger Jr. and Woodrow Wilson are among those who considered him one of the few true political thinkers America has produced. Brownson, for example, detested John Locke and argued that the social contract theory in fact had no place in American constitutionalism. Brownson further argued that the premises of the founding were compatible with a Catholic understanding of natural law. Other than as a historical footnote, however, his thought remains largely neglected even by Catholics.

This neglect is a shame, because the republican federalist model Brownson proposed is not only consistent with Catholicism but also with our nation's constitutional history. The federalism he espoused would allow for more freedom at the local level to incorporate community norms, as well as place limits on the federal government's ability to enforce secular norms by recognizing its limited powers. For Catholic judges currently pressured to reconcile their faith and their profession, Brownson's model offers a promising solution.

Gerald J. Russello is a fellow of the Chesterton Institute at Seton Hall University. He is working on a book on Christopher Dawson.