The Catholic Temperament of the Supreme Court Justices, Part I

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by Christine Niles, M.St. (Oxon.), J.D.  •  ChurchMilitant.com  •  June 26, 2015   

Religion isn't always an accurate predictor of judgment

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WASHINGTON, D.C., June 26, 2015 (ChurchMilitant.com) - Out of the 112 justices that have served on the U.S. Supreme Court, only 13 have been Catholic — and nearly half of them are sitting on the High Court now. In fact, it's the first time in American history that we've seen a Court composed solely of Catholics and Jews — six of the former and three of the latter, to be exact. The last Protestant to serve on the High Court was Justice John Paul Stevens, who retired in 2010. And although their religion may have an influence on their judgments, it's not always an accurate predictor — especially in the case of the Court's Catholic justices.

Justice Antonin Scalia is the longest-serving Catholic among the current justices, appointed to the Supreme Court by President Ronald Reagan in 1986. Respected for his sharp intellect and deep grasp of the law, he's been described as a devout Catholic, and regularly attends the Traditional Latin Mass. His son Fr. Paul Scalia is a well-known priest who serves in the Arlington diocese.

Scalia consistently rules against abortion and same-sex rights, and is best known for his scathing dissents in landmark rulings like Planned Parenthood v. Casey (which affirmed the "right" to abortion) and Romer v. Evans (which offered a ruling favorable to the homosexual agenda). His dissent in the Thursday ruling upholding Obamacare (King v. Burwell) was full of derisive language for the majority opinion, calling it "unnatural," "[p]ure applesauce," and "interpretive jiggery-pokery." But his latest dissent in the gay "marriage" ruling in Obergefell v. Hodges is thought to be his most sharply worded piece yet.

Scalia applies an "original understanding" approach to the Constitution, arguing that interpreting the Constitution through the lens of the understanding of the Framers and the general populace at the time of the Constitution's ratification results in the most accurate rendering of the law. It's also his hope that this approach will curb judicial activism, where judges usurp the authority of the legislative branch by reading their own social and political agenda into the Constitution. To this day, Scalia blames judicial activism for the result in Roe v. Wade, in which a "right to abortion" was essentially enshrined in the Constitution based on the political agenda of the justices, and not based on impartial application of the original understanding of the Constitution. The same reasoning applies to Obergefell.

There are problems to this approach, however, and it's not one adopted by fellow Catholic justice Clarence Thomas, who takes a Natural Law approach to constitutional interpretation. Some Catholics argue this approach — which interprets the Constitution through the lens of Natural Law — is the most "Catholic" approach, because the Constitution is made subject to enduring, objective Absolute Truth, and would not depend on the consensus of the people at the time of the Constitution's ratification — a consensus that did not always conform to the tenets of the Natural Law. 

Thomas is also described as a devout Catholic and a social conservative, consistently ruling against abortion, same-sex rights (he wrote a separate dissent in Obergefell) , while generally ruling in favor of capital punishment, police enforcement power and the right to bear arms. He dissented in both Supreme Court rulings upholding Obamacare.

A former seminarian, he left the seminary and the Church altogether in 1968 when he overheard a fellow seminarian say of Martin Luther King, Jr. — who had just been shot that day — "I hope the SOB dies." This was apparently the last straw for him, as he had struggled with what he saw as the hierarchy's general silence with regard to the issue of racial discrimination in the 50s and 60s. He joined the Episcopal community for a number of years before returning to the Church in the mid-1990s.

He began his tenure on the Court amidst controversy, when Anita Hill, his former assistant, accused him of sexual harrassment. He strongly denied the charges, and was confirmed to the High Court bench by a narrow margin of 52–48. According to Court insiders, Thomas continues to deny Hill's charges to this day, claiming it was little more than a slanderous attempt by radical feminists to derail his nomination, and that it was his Catholic faith that has helped him forgive his accusers.

Another Catholic on the Court, Anthony Kennedy, has a less predictable track record on abortion, but an entirely predictable record on gay rights, as was demonstrated in today's High Court ruling on same-sex "marriage." Appointed by Reagan in 1988, Kennedy has come to be known as the crucial swing vote in major cases. Although he voted to uphold an abortion restriction in 1990 (Hodgson v. Minnesota), he joined the majority in affirming a right to abortion in Planned Parenthood v. Casey in 1992. He went the other way in 2000 by voting to uphold state laws banning late-term abortions (Stenberg v. Carhart), further shoring up his position in the 2007 case Gonzales v. Carhart by writing for the majority and again upholding a law (this time federal) criminalizing partial-birth abortions. He was also in the majority in both cases upholding Obamacare.

Kennedy has taken the lead in promoting the homosexual agenda on the Supreme Court, and helped pave the way to Obergefell, which he authored. He wrote the majority opinion in Romer v. Evans, which struck down a Colorado constitutional amendment that prohibited recognizing homosexuals as a special protected class. He characterized the measure as based on nothing more than "animus" towards gays. In 1986, Kennedy dissented in Bowers v. Hardwick, which upheld a state statute that criminalized same-sex acts. Unhappy with the ruling, he would have to wait 17 years before his personal vindication in the historic case Lawrence v. Texas, which struck down a state anti-sodomy statute. Once again writing for the majority, he took the rare step of overturning Supreme Court precedent, writing, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." 

He authored the majority opinion in the major 2013 case United States v. Windsor, which struck down a portion of the federal Defense of Marriage Act defining marriage as between a man and a woman. The case became the linchpin for multiple rulings overturning state same-sex "marriage" bans. And, as expected, he wrote for the majority in Obergefell in a narrow 5–4 ruling, where the Court held in favor of a constitutional right to gay "marriage" under the Fourteenth Amendment. 

Raised in an Irish Catholic family in Sacramento, California, Kennedy is a married father of three, and once worked closely with then-California governor Ronald Reagan. Those close to Kennedy claim his pro-homosexual rulings are explained by the influence of former mentor Gordon Schaber, dean of McGeorge School of Law in Sacramento, who hired Kennedy in the 1960s as a teacher. Schaber, rumored by many to be homosexual, became close friends with Kennedy, and decades later when Kennedy was nominated to the Supreme Court, Schaber would appear to testify on his behalf before the Senate Judiciary Committee. Although Schaber's influence cannot be confirmed, many speculate his mentorship played a large part in deepening Kennedy's sympathy towards homosexuals.

In Part II: a profile of Chief Justice John G. Roberts.

 

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