Supreme Court Justices and Religion

To ask some questions is to answer them, and via Commonweal, I see that UCLA history professor emeritus Joyce Appleby has penned a lovely exercise in anti-Catholicism entitled, Should Catholic Justices Recuse Selves On Certain Cases?. Here is an excerpt:

But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants…

…Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?

In response, David Gibson at Commonweal notes that he, as well as all of the Catholic Justices on the Court, would argue that the teachings of the Church have no bearing on their rulings. Nevertheless, Ms. Appleby apparently believes the Justices cannot be taken at their word on this matter. Catholic justices, it seems, can’t be trusted.

What interests me about this line of argument is that both Mr. Gibson and Ms. Appleby implicitly assume there is something wrong with religious beliefs influencing Justices. And I am curious about what that something is. For instance, Judge Sotomayor is famously on the record for saying that a judge’s background (i.e. gender, ethnicity, life experience) influences their decision-making, as is Justice Ginsberg if I am not mistaken. Yet there have been no calls for the recusal of female (or male) judges from gender discrimination cases.

In gender, as in religion, there is no such thing as neutrality. A person is either male or female (with certain rare exceptions), is of some or no religious background, is appointed by a Republican or a Democrat, is of one socio-economic background and not another, etc. All of these life experiences influence a Justice in varyious ways, conscious and unconscious. What is it, specifically, about religious background that is seen as pernicious? If two judges hold the same position on racial discrimination, one as a result of their Protestant faith, the other as an agnostic, is the former’s view to be excluded from the judicial process, and the latter included? If so, why? If not, why?

Any thoughts?

46 Responses to Supreme Court Justices and Religion

  • Well, didn’t Scalia say the Catholic judges who are against the death penalty should recluse themselves? hmmm….

  • Well, John Henry, as you rightly point out, there is a worldview of all the judges.

    What I find interesting is “justice” is not justice in the natural law sense. That is, having American positive laws in conformity with the natural and eternal laws. Alexander Hamilton put it this way: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself; and can never be erased or obscured by mortal power.”

    However, the American sense of “justice” is to uphold the letter of the Constitution and legal precedence. This can pose quite a dilemma. If I’m a Catholic sitting on the U.S. Supreme Court, hypothetically dealing with a case prior to the 1860s regarding slavery, I would be obliged to rule to uphold what is, in fact, not just at all. My very obligation — according to “originalism, as I understand it — would be to to rule in such a way that contradicts the very title of “Justice.”

    Yet, it seems, to lax strict guidelines and open the door to some sort of “judicial autonomy” easily leads to what we call legislating from the bench.

    I’m not sure what the solution should be. Constitutional law is a matter where I’m simply agnostic and hesitant about most positions. To be sure, I do think the comments by Scalia and Thomas–no matter political orientation, or their purposes–are downright scandalous. The my “faith has nothing to do with my rulings” statements though situationally different than legislators reaffirms the separation of faith and life, religion and politics — all of which, I don’t support.

  • “He said they should resign.”

    He’s right. Just according to Catholic teaching. Shouldn’t be automatically discarded by a Catholic judge.

  • Eric

    I think as to Pre- Civil War Judges that were anto Slavery they would be hard pressed to ban slavery since theire power and authority came from an agreement among the States that involved the Slavery issue. It was part of the pact as it were.

    THere has been some talk in recent threads about Scalia and Thomas statements and if they are scandaleous. I really don’t think they are. However I wish they would have fleshed out what they mean more.

    I suggest this article that also has a helpful comment by Rick Garnett as to being what a Catholic Judge is

    http://www.firstthings.com/on_the_square_entry.php?year=2007&month=10&title_link=antonin-scalia-not-a-catholic-

    That article also shows that Scalia had other thoughts that rarely get mentioned as to that statement

    “If he were not a textualist and an originalist, if he thought he ought to rely on substantive moral notions not found in the text, then, Scalia said, his Catholic faith would make a large difference in how he judges cases. Similarly, if he had to judge common-law cases¯cases that do not involve texts enacted by a legislature but only judge-made law, cases of the kind that sometimes come before state courts but rarely come before federal courts¯things would likewise be different. In making common-law decisions, a judge has to make normative judgments about which laws are best, and so the judge’s values are properly in play. So, too, in the voting booth. Indeed, when the question switches from which laws we actually have to which laws we ought to have, then a person properly relies on moral values, whether they be Catholic or anything else.”

    I think this is very correct and there is nothing really un Catholic about that.

    I suppose my question is why are Judges (Catholic or otherwise) criticized for not thinking they have a grant of authority to do X

    FOr instance if we take that standard then why do we not criticize a Pro-Life President for not sending out his Federal Marshals and closing down all the abortion Clinics by Fiat. The reason we don’t is because we know that would be a UnConst power grab. Society can not function in such an environment.

  • One other thought on Sclaia Statements as to State execution. THe media generally does a bad job of covering religious issues. The only thing they do worse is covering Supreme COurt matters and the people on the Court

    From a person that was there:
    I would note one (perhaps self-evident) thing in clarification of the Scalia
    argument as it has been described in this thread: Scalia’s view that a
    Supreme Court Justice should resign if he or she believes the death penalty
    is immoral is dependent on the further assumption, manifest in his speech,
    that a Justice does not (or ought not) bring personal or contemporary moral
    judgment to bear in deciding death cases or in establishing death-penalty
    doctrine: “[T]he Constitution that I interpret and apply is not living, but
    dead; or as I prefer to call it, enduring.” “Bear in mind that I don’t make
    up new constitutional rules.”

    Further from Rick Garnett that was also there

    As I heard him, Justice Scalia was careful to establish, as a premise to his
    “have to resign” conclusion, that his position as a Justice involves him to
    a sufficient degree in the application of the death penalty to make him
    complicit in the wrong done. That is, I don’t think he was suggesting that
    his disagreement, standing alone, required him to resign, but rather, that
    (a) he has a moral obligation not to “cooperate” with evil (assuming that
    the application of the death penalty is, in fact, illicit); and (b)
    participating in death cases constitutes “cooperation” with evil. For my own
    part, it is not clear that a Supreme Court Justice who, say, fails to vote
    to deny a stay of execution, or fails to vote in support of a habeas
    petition brought by a capital defendant is, in fact, “cooperating” with the
    (assumed) evil of the death penalty.

  • What is bizarre about this is its literal unconstitutionality. Article VI, Section 3:

    The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

    So under the guise of separation of church and state, something never mentioned in the constitution ironically, we are forced to ignore the actual words of the constitution.

  • For those interested I find the transcript of Scalia’s remarks so you see them in the full context

    http://pewforum.org/deathpenalty/resources/transcript3.php

  • jh,

    That was precisely my point. I was arguing that, to begin with, we aren’t even starting with a natural law conception of Justice. It is fundamentally a social contract theory, which itself is the arbiter of what is right and wrong in a legal sense. In other words, I think the lack of natural law orientation profoundly obscures what is true justice and the essence of law.

    My other concern is being complicit. Regardless of judicial philosophy, I would not rule to uphold slavery as the law of the land because it isn’t true justice. I simply cannot imagine allowing such an evil to perpetuate because of such commitment to a particular judicial philosophy, especially, if hypothetically, it was a 4-4 and I was the “swing vote.” I would not vote to uphold it when I know, apart what may be philosophically ideal, when I knew that I could stop an evil immediately. In other words, I find it problematic that our judicial system is more concerned about the letter of the constitution and legal precedence than actual justice.

    I understand why we currently operate like this. There are alternate approaches that I wouldn’t say any better, e.g. the approach that got us Roe v. Wade.

    Even still, I am not satisfied or convinced by Scalias’ argument. I think so far, at least, it may be the do-the-least-harm approach and our best weapon against getting results like Roe, or even worse, Casey with its infamous “liberty clause.”

    If Catholics are right about law, about the nature of law, then the American emphasis on upholding whatever is the positive law on the books as long as its conformity with the framework of the Constitution is problematic, in my view, that is building a system on a false premise of law and justice.

    Thus, I think we should develop a different judicial philosophy. I wish I knew what it was. But with the status quo, I can’t say I am satisfied.

  • “I find it problematic that our judicial system is more concerned about the letter of the constitution and legal precedence than actual justice.”

    Perhaps, I should say more committed to…or more interested in, at the expense of natural law thinking.

    I don’t think Catholics should throw natural law under the bus for positive law. The West profoundly misunderstands law and I wish we currently were operating through some different, more acceptable (in my view) judicial apparatus but we aren’t…

    I suppose the problem is finding a way that one does not get into the “living Constitution theory,” as it is currently promulgated.

  • In other words, I find it problematic that our judicial system is more concerned about the letter of the constitution and legal precedence than actual justice.

    I understand why we currently operate like this. There are alternate approaches that I wouldn’t say any better, e.g. the approach that got us Roe v. Wade.

    I hate to say it, but your approach largely is the approach used in Roe v. Wade, only from a different perspective. The judges in that case thought abortion was a manifest right, the Constitution be damned, and so essentially made a decision based on their conception of what was wrong or right. Your approach is similar, only you’re arguing that slavery is morally wrong. That’s all well and good, but it doesn’t get us very far if 5 Justices happen to disagree with you. So either we follow the written text of the Constitution or we follow the dictates of our conscience (hopefully the two are not in contradiction). 99% of the time the latter approach is the right one, but not when adjudicating in a Court of Law.

  • Eric

    As to Slavery the natural law sometimes must make an accomdation with a evil to help mitigate that evil. It should be noted that as a part fo this aggreement the International Slave Trade as to the USA was abolished. Again back then the theory was to strangle it out and even SOutherners thought it would die out of existance. The problem was people went back on the deal when they wanted it expanded.

    So I think Catholic Justices had no moral problem on the whole. Also lets be real here. Can you imagine if say in 1850 the Supreme COurt would have declared Slavery illegal. Well they would have just been ignored and thus set a dangerpus precedent

    I have no objection to a natural law jurisprudence. But again what is that? I can recall when Justice Kennedy came and taught my Const Law class. He asked a questions about rights and the rights listed in the Bill of Rights

    He said why don’t we have a

    Right to a Job
    A right to Health Care
    etc etc etc

    In fact this is where exactly many people that advocate a Natural Law Jurisprudence from the more Catholic left want to go. That is look at that rights that in the SOcial Compendium and have judges declare it.

    Kennedy pointed out the obvious. If these were “rights” on par with lets say the Freedom of Assembly there would be chaos.The Chaos he was talking about dealt with how in the world would Judges be able to deal with it and frame that right. You would in effect have a mini legislature in the Judicial branch and I suppose Law Clerks with no expertise in all these issues involved in all this.

    From a personal veiwpoint looking at How Federal Judges have run the East Baton Rouge Parish School system for 25 years while it was under the desegration decree I find trheir management skills quite lacking

    I can’t imagine what they would do to the Health system as Federal Judges come in and manage them in order that a “right to Health Care” could be had

  • Paul,

    Well, perhaps I’m liberal after all. Though, in some respect, I am not “reading” stuff in the Constitution that clearly isn’t there and pretending that the text of the Constitution is in alignment with my position.

    I’ll put it this way. In terms of maintaining social order and political stability, the “originalist” position is best, in that, it does the least amount of harm. In the end, I still think it’s flawed and there has to be some ways to address its flaws.

  • Eric

    I would also say as to Natural Law thinking that this could occur in the legislative branch. I am also still open to it in the Judicial branch.

    You might really enjoy this one hour podcast that Arkes had at the Making Men Moral COnference as he explains his attempts to get his Friend Scalia and others to recognize they can use the Natural Law.

    Scroll down to “Closing Luncheon with remarks by Hadly Arkes”

    http://www.uu.edu/events/makingmenmoral/schedule.cfm

    That speech as well as a few others really address what you are talking about especially Arkes

  • “As to Slavery the natural law sometimes must make an accomdation with a evil to help mitigate that evil.”

    The principle of the Double Effect only works if the evil you are tolerating is not objectively evil in and of itself. The argument is basically proportionalist aka. utilitarian aka. consequentialist.

    “So I think Catholic Justices had no moral problem on the whole. Also lets be real here. Can you imagine if say in 1850 the Supreme Court would have declared Slavery illegal. Well they would have just been ignored and thus set a dangerpus precedent”

    That’s consequentialist reasoning. It is like the sin of omission, or not doing what is right because of the consequences that it would render. I’m afraid to say it strikes me like saying that overturning Roe v. Wade would cause a political backlash and cultural division even worse than it is now, thus, one should act to bring change slowly. It is the argument of the “white moderates” who wished to (allegedly) integrate blacks into society over time, as the culture slowly changed.

    The argument is basically pragmatist and only further convinces me that the machinery of our government places Catholics, particularly in this regard, in a dangerous place. You either cooperate with the machine and lose your ethics, or you “legislate from the bench” and cause tyranny.

    And again, I don’t think anyone has seen a natural law jurisprudence laid out because it’s in its early stages. However, I think the debate should be had.

  • Eric

    I don’t think the situation that lets say anti Slavery Catholic Judges found themselves in was at all consequentalist. Again part of the deal was in order for this nation to be formed some of the evils of Slavery would have to be minimized. Therefore the natural law made a accomdation with a evil to minimize it. What made the whole deal go off the rails was the South basically demanding a Right to Nationwide Slave code which was demanded by the SOuthern Democrats at their Dem Convention in Charleston.

    Lets use another example. That is the sex business. The Church has recognized that such things as Prostitution and brothals are evil and bad. Yet the Church has reconzied that such things as regulation of it to mimizew it evils (like red light districts) and such is ok in many regards.

    One can make a arguement as to abortion that a process of chipping away at it slowly and strangling it to death (like Slavery) is the way to go. If there is a all or nothing approach there would never be proress on the issue.

    Also in the end the Court again has no power to tax and really no way to enforce it orders. It must rely on its good name. At times they cash it in. Look at Brown vs the Bopard of Education. But if the COurt was issuing Society changing ruling like Brown every year then I predict they would be ignored. That is for instance the Executive Branch would disover Lincoln’s musings that he had a right to interpret the Const kust like the Court.

    This is one reason wehy for the most part the Court is slow in making dramtic changes

  • “Therefore the natural law made a accomdation with a evil to minimize it.”

    I understand that people made compromises that seemed unavoidable, e.g. compromises like we make on abortion to get as much restriction as possible. However, the natural law does not accommodate evil–it is the moral law of God and the standard of perfect justice. So, the language you’re using is problematic in terms of moral theology, hence I keep arguing against it.

    “Yet the Church has reconzied that such things as regulation of it to mimizew it evils (like red light districts) and such is ok in many regards.”

    Well, I think the Church would say restrict it as much as possible with the intention of ultimately obliterating. I’m not sure the Church would deem such immoral activity confined to a place as “ok in many regards.” As far as I know, there is no constitutional right to prostitution.

    “One can make a arguement as to abortion that a process of chipping away at it slowly and strangling it to death (like Slavery) is the way to go. If there is a all or nothing approach there would never be proress on the issue.”

    In regard to abortion, there is this interesting phenomenon. People who are conservative tend to oppose radical changes while liberals want changes to bring about immediate justice. You get a conservative Catholic and they’ll tell you let’s outlaw abortion. You get a more liberal Catholic, they’ll say we should do it gradually and get a greater social consensus. On the issue of abortion, the two sides flip — for the most part.

    I think the reason we’re not pulling an all or nothing on abortion, as was the case with slavery, is because the machinery of government has us in a tight spot. My only problem with the “slow” process is that meanwhile a great injustice casually continues and with abortion, it’s going at a rate of 4,000 a day and I’m not sure if we have the luxury of time insofar as we aren’t acting so imprudently as to compromise the cause and a swift as possible triumph.

    And Brown vs. Board of Education is a prime example. I think the problem here is I’m emphasizing achieving true justice because doing the good is a moral obligation that should not be considered solely based on the consequences, as that would be a departure from natural law moral ethics; whereas, you are emphasizing the need for stability and keeping social order lest the Court lose its authority and the actual good be lost to the jaws of defeat due to a swift backlash due to a wreckless dash for a short victory.

    My problem is, seeing my strident commitment to keeping natural moral ethics, is that, if in such a system, there is great tension for a Catholic sense of morality, I feel inclined to try to develop a judicial philosophy where Catholic ethics don’t conflict so readily with the process. That’s pretty much my whole deal with your approach. It might be the best we’ve got right now, but I can’t settle with it.

    I must depart for now. Thanks for the discussion…

  • Ms. Appleby is effectively arguing for the recusal of any save the most carefully-vetted agnostics from service as a judge.

    By what feat of special pleading would an Episcopalian not also be forced to recuse him/herself on the same issues? Actually, it goes further than that–any issue of “commitment” would force recusal. Consider the case of a vegan judge in a case involving Eckrich, for example.

  • It is curious that the matter of the Catholicism of Roger Taney was not raised. But Taney is an excellent example of accepting the law as it stands.
    He despised slavery [“those vermin who trade in human flesh”]. But he also recognized that it was lawful under the Constitution.
    Slavery is the great example that Chesterton uses tp point out that democracy is not perfect.

  • No, by the time of the Dred Scott decision Taney was an ardent defender of slavery. His views on “the peculiar institution” had done a 180 from his younger days. His opinion for the court held that slaves, or their descendants, whether or not they were slaves, could never be citizens of the United States, and that Congress did not have the power to ban slavery in the territories. Neither proposition was supported by the text of the Constitution, and are a precursor to the type of jurisprudence that produced Roe.

  • Scalia on Taney: “There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon to be played out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

  • Gabriel,
    You are wrong. Dred Scott was wrongly decided for a host of legal reasons, regardless of one’s position on slavery. Basically Taney’s reasoning was a foretaste of substantive due process, which is what eventually led the way to the loose reasoning seen in Roe. Seriously, if you are a constitutional scholar (I taught it at a law school for almost 10 years), I encourage you to carefully read Scott. It is appallingly poorly reasoned. There are cases where judges properly follow the law to make decisions that are either objectively distasteful or distasteful to them. Dred Scott is not an example of this, however.

  • Donald,
    I failed to see your earlier posts. Once again, we are in complete agreement.

  • As usual Mike! Scott is a prime example of the deadly impact a rogue Supreme Court can have on this nation. Taney and his cohorts reignited the slavery issue, convinced many moderate Northerners of a “slave power conspiracy” to spread slavery throughout the nation, strengthened Southern reluctance for any compromise as to slavery in the territories and vastly increased the likelihood that the debate over the question of slavery would eventually end in blood. When the Supreme Court steps in and attempts to act as a super legislature it always stirs up a hornet’s nest.

  • Exactly, Don. As much as I believe that our unborn should be legally protected, I similarly think it would be wrong for the Supreme Court to overturn state laws that permit abortion under some type of contrived right to to life enshrined in some penumbra. The lawmaking power rests with the people acting through their legislators; they cannot avoid this responisiblity by pretending that judges are empowered to do whatever they think is right and best. A judge’s authority is limited; Dred Scott and Roe are both testaments to what happens when he exceeds his authority just because he can.

  • About 2 years ago, I did a post about Taney, which also drew a Taney defender (who was clearly arguing from a misperception, which he later acknowledged) in the combox discussion that followed:

    http://proecclesia.blogspot.com/2007/08/roger-taney-may-get-boot-civil-rights.html

    Catholics need to stop feeling like they have to defend Taney and his egregious, unjustifiable, and activist opinion in Dred Scott.

  • jh Says Wednesday, June 10, 2009 A.D. at 11:37 am
    “I think as to Pre- Civil War Judges that were anto Slavery they would be hard pressed to ban slavery since theire power and authority came from an agreement among the States that involved the Slavery issue. It was part of the pact as it were”.

    Which was Taney’s point. The way to settle the issue of slavery was to change the Constitution. This was done by the 13th Amendment. Thei demonstarted the truth of Taney’s argument.

  • Eric Brown Says Wednesday, June 10, 2009 A.D. at 11:57 am
    “My other concern is being complicit. Regardless of judicial philosophy, I would not rule to uphold slavery as the law of the land because it isn’t true justice”.

    There in lies the nub. Whether slavery is true justice or not, it was the law of the land, of the U.S.

    There is, it seems to me, an idea that the U.S. is a perfect land. It is not. It was not from its beginning. As Jefferson wrote “I tremble for my country when I remember that God is just”.

    Let us forget for the moment the issue of slavery. What about the ongoing treatment of the Indians in our country? the broken promises? the violated treaties?

  • Donald R. McClarey Says Wednesday, June 10, 2009 A.D. at 5:06 pm
    “No, by the time of the Dred Scott decision Taney was an ardent defender of slavery. His views on “the peculiar institution” had done a 180 from his younger days”.

    References?

  • Donald R. McClarey Says Wednesday, June 10, 2009 A.D. at 5:12 pm
    “Scalia on Taney: “There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon to be played out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

    Interesting aesthetic but irrelevant [i.e., not to the point] comments by Justice Scalia. I’d suggest that Taney’s unhappiness was caused by his realization that neither side would cede; that the Constitution was a compact with the Devil.

  • Mike Petrik Says Thursday, June 11, 2009 A.D. at 6:48 am
    “Gabriel,
    “You are wrong. Dred Scott was wrongly decided for a host of legal reasons, regardless of one’s position on slavery”.

    Is this an example of the third manner of presenting an argument – bang on the desk?

    Much of the decision’s argument arises from the nature of legal property. Blacks were property, chattel, cattle, if you prefer, that could freely be moved from one state to another. The Dred Scott decision was the bearer of the bad news. Our polity is not the Heavenly City.

  • Donald R. McClarey Says Thursday, June 11, 2009 A.D. at 7:08 am

    “Taney and his cohorts reignited the slavery issue”.

    Not true. The issue of the Civil War was the Union. Could a state secede?

    [I like “cohorts”. Is this akin to fellow conspirators?].

  • Jay Anderson Says Thursday, June 11, 2009 A.D. at 10:48 am
    “About 2 years ago, I did a post about Taney, which also drew a Taney defender (who was clearly arguing from a misperception, which he later acknowledged) in the combox discussion that followed:
    http://proecclesia.blogspot.com/2007/08/roger-taney-may-get-boot-civil-rights.html
    Catholics need to stop feeling like they have to defend Taney and his egregious, unjustifiable, and activist opinion in Dred Scott”.

    I do not have a belief that I must defend Roger Taney [although his attitude and actions in defense of blacks are certainly admirable, as was his refusal to abandon habeas corpus and to knuckle under to Father Abraham, the sole decider of the War].

    I do not defend the decision. I merely examine it; and find that it admirably displays the law of the land at the time. He did not find unmentioned side laws and umbras in the Constitution, as did the justices in Roe v. Wade; and the overreaching justices in Brown v. Board, kin to the overreaching justices in Plessy.

  • On the other matter of whether Catholics should recuse themselves on matters on which the Church has spoken, would this apply to matters of charitable giving, to education, to the whole host of activities in which the Church is active?

    On this principle, should men recuse themselves when an issue of women’s rights is raised? Should blacks and whites [“Caucasians”] recuse themselves in civil rights matters?

    Only in the academy could such non-sense be spoken.

  • Okay, Gabriel. Defend these 2 propositions relying solely on the text of the Constitution:

    (1) That black Americans (regardless of whether they were slaves or not) could not be citizens of the United States, and
    (2) That Congress had no power to regulate “property” in the federal territories.

  • Jay Anderson Says Thursday, June 11, 2009 A.D. at 5:57 pm
    “Okay, Gabriel. Defend these 2 propositions relying solely on the text of the Constitution:
    (1) That black Americans (regardless of whether they were slaves or not) could not be citizens of the United States, and
    (2) That Congress had no power to regulate “property” in the federal territories”.

    This is not a class room. There is a tendency among some posters to believe it is.

    Citizenship depended on the state.

    “Property” is an issue with several hundred years of dispute behind it.

    A further note: Taney in the later Booth case vigorously denied that states had the right to ignore federal laws. Curiously, the Booth case was an abolitionist arguing for secession.

  • This is not a class room. There is a tendency among some posters to believe it is.

    Gabriel:

    You have attempted on several threads on this blog over the past few months to defend Taney’s decision in Dred Scott. If you do not have the sufficient understanding of the issues surrounding the case and are thus unable or unwilling to defend Taney in a meaningful manner, then it would be best for you to bow out of the discussion.

  • Sorry, the above comment was a bit uncharitable. What I am trying to get at, Gabriel, is that we’re having a discussion (partly) about constitutional law and the manner in which Supreme Court Justices ought to approach cases. The very nature of our conversation is therefore, in a sense, “academic.”

    The questions that Jay asked are central to an understanding of the Dred Scot decision, so you can’t just shrug them off if you are going to defend the opinion that Taney wrote and to which his associates signed onto.

  • paul zummo Says Friday, June 12, 2009 A.D. at 2:42 pm
    “This is not a class room. There is a tendency among some posters to believe it is.
    Gabriel:
    You have attempted on several threads on this blog over the past few months to defend Taney’s decision in Dred Scott. If you do not have the sufficient understanding of the issues surrounding the case and are thus unable or unwilling to defend Taney in a meaningful manner, then it would be best for you to bow out of the discussion”.

    Does that mean leave the room or go stand in the corner?

  • paul zummo Says Friday, June 12, 2009 A.D. at 2:52 pm
    “Sorry, the above comment was a bit uncharitable.

    It was not uncharitable. It was dense.

    “What I am trying to get at, Gabriel, is that we’re having a discussion (partly) about constitutional law and the manner in which Supreme Court Justices ought to approach cases. The very nature of our conversation is therefore, in a sense, “academic.”

    Academic, indeed. That was my point.

    “The questions that Jay asked are central to an understanding of the Dred Scot decision, so you can’t just shrug them off if you are going to defend the opinion that Taney wrote and to which his associates signed onto”.

    You have too many “to’s” there. [Sorry, couldn’t resist].

    I have had many discussions over the years with lawyers [Eliot Richardson, for example] and professors [Bernard Schwartz, for example].

    The basic issue is not slavery; it is property. It is a good question whether Taney despised slavers or abolitionists more. I think the latter. He was a strong federal union man. Having been law clerk to the Maryland representative at the Constitutional Congress, he know how difficult it had been to form “the more perfect union”. And how easy it might be to dissolve that union.

    But … that union was not perfect. It was not, and is not, the City of God on earth. It had and has many blemishes. It took a century before the rough equality of blacks was enforced by law. Cf. Douglas Blackamon’s Slavery by Another Name: The Re-Enslavement of Black People in America from the Civil War to World War II.

    [A propos, the opinions he cited about blacks were shared by Father Abraham].

    [Another a propos: slavery is not an absolute evil, like abortion].

  • I have had many discussions over the years with lawyers [Eliot Richardson, for example] and professors [Bernard Schwartz, for example].

    Oooookay, and this is relevant how?

    As for the rest of your comment – you’re still not even addressing the issue. Supreme Court decisions aren’t matters of feelings, but rather matters of concrete law. You still have offered no concise defense of the decision, which indicates you obviously don’t even remotely understand the case.

  • Apparently if you want to be on the U.S. Supreme Court it certainly helps to be Roman Catholic (six with the new appointment) followed by some distance by the Jews, and lastly the lone protestant. http://www.adherents.com/adh_sc.html This hardly mirrors the religion membership of the population of the country, but who cares? The Supreme Court is never called upon to resolve the law and religious issues like under the first amendment or equal protection clauses. LOL Does the judicial appearance of fairness even matter in the face of political gains? LOL.
    Should the media discuss this on the Sunday talk shows? LOL

    Learning to Count Is Not a Sign of Bigotry.

    Should this be raised at this time?

    The First cannon of judicial ethics says:

    A JUDGE SHALL UPHOLD THE INDEPENDENCE AND INTEGRITY OF THE JUDICIARY, SHALL PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES .
    RULE 1.01: PROMOTING CONFIDENCE IN THE JUDICIARY
    A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary.

    I do not find any fault in the current nominee to the United States Supreme Court for being a woman, a Latino, for having made remarks on her qualifications as superior to the qualifications of any Caucasian. But I do find fault with her appointment violating the spirit of the first cannon of Judicial Ethics, that a judge should appear impartial. Litigants will be hesitant to turn to courts where the Justices appear stacked against them and this undermines the rule of law. Judge Sonia Sotomayor would become the sixth Roman Catholic justice on the Supreme Court. There are only nine of them, so that would mean that two thirds of the Justices, 66+%, would be Roman Catholic in a country where less that 25% of the population practices that religion. That religion predisposes its members, by life long training, faith, and in some cases, rule, to take certain positions that are likely to come up for hearing before the court. Any Appointee will not commit before they go onto the bench what position they may take in a case, but the appearance is there, however they may deny this will influence their rulings. The very appearance of six Roman Catholic Justices on the court gives the appearance to all litigants that if they appear on one side of those issues, be if choice, school prayer, school vouchers or other issues, they will not get a fair hearing. Of course, with the church’s and Popes stand on capital punishment, some might be inclined to support such a person in hopes of abolishing the death penalty. Only one Roman Catholic Justice on some of these issues has taken a position not supported by the church. I believe this is a far more important consideration than any other and should bar Judge Sotomayor from being confirmed by the Senate, no matter how good of a Judge she has been and how worthy of the position she may otherwise be. In fact, I believe it should have prompted her to decline the nomination at this time and should prompt her to withdraw. It is just not the appropriate time to appoint one more Roman Catholic to the court and preserve the diversity of the court in representing the religious views of this country. It appears to threaten the first amendment’s freedom of religion that is so much a bedrock of our society. I know these remarks are politically incorrect but feel they must be made. If you share these sentiments, please pass them on as I believe the general medial is wired not to touch this with a ten foot poll until finally forced to do so by the people.

    I made the following observations at the time of the appointment of Justice Alito in 2005 that I think are even more appropriate here.

    The following statistics are taken from Wikipedia, the free web encyclopedia. http://en.wikipedia.org/wiki/Demographics_of_the_United_States

    Take a look at the following statistics on the religious demographics of the population of the United States compared to its representation on the supreme court with the addition of Judge Alito. There is no correlation. Given that, together with the fact that at least 50% of the population is feminine and an Alito court will only provide for one female member, or just over 11% of the total court population, and it is clear that the current [Bush] administration has no intention of appointing someone to the court who may be called representative of most of the country or as moving the court to a greater parity of court membership with the population of the entire nation.

    U.S. as a Whole U.S. Supreme Court + Alito

    No Religion 15% 0%

    Christian 79.8% 78%

    Roman Catholic 25.9% 56%

    Other Christian
    54.0% 22%

    Jewish
    1.4% 22%

    Non-denominational
    1.3% 0%

    Muslim
    0.6% 0%

    Hindu
    0.5% 0%

    Buddhist
    0.4% 0%

    Unitarian 0.3% 0%

    Others
    0.7% 0%

    Percentages of Religions and no religions with no representation on the United States Supreme Court 18.8%. Percentages of population represented by Christians other than Roman Catholics that are under represented on the United States Supreme Court is 54% of the population but only about half of its members are proportionately represented. It is clear that the membership of the United States Supreme Court, if each justice should represent approximately 11% of the population, is disproportionately allocated, with the Roman Catholics exceeding their fair representation by three justices with the appointment of Judge Alito. Even if the Jews were to be said to represent all those with no religion and all other religions (something that the Muslims and Atheists might well find objectionable) they only would be entitled to two members by carving into the non Roman Catholic proportions of the Christian religions, that would appear to be entitled to almost 5 members of the court by religious demographics. Now is this fair?? Is it fair to object to the appointment of a new justice because he or she further distorts the Supreme Court’s demographic representations of the beliefs of the population of the United States. Who is the bigot??? Is the Bigot the person who supports this further distortion of the United Stats population religious demographics, or the person who says, let us look to a fair representation of the beliefs of this nation as we can given the number of members we have on the court. It is very fair and unbigoted to object to the confirmation of Justice Alito because of his religion because his appointment does not fairly represent the people of the United States, no matter what his race or political affiliation is

    This is the current religious line up of members of the Supreme Court if the appointment of Justice Alito is confirmed.

    John Roberts (Chief Justice): Catholic
    Stephen G. Breyer: Jewish
    Ruth Bader Ginsburg: Jewish
    Anthony M. Kennedy: Catholic
    Antonin Scalia: Catholic
    David H. Souter: Episcopalian
    John Paul Stevens: Protestant
    Clarence Thomas: Catholic
    Samuel Alito: Catholic

    Supreme Court of the United States, highest court in the United States and the chief authority in the judicial branch, one of three branches of the United States federal government. The Supreme Court hears appeals from decisions of lower federal courts and state supreme courts, and it resolves issues of constitutional and federal law. It stands as the ultimate authority in constitutional interpretation, and its decisions can be changed only by a constitutional amendment.

    Nine judges sit on the Court; the chief justice of the United States and eight associate justices. The president of the United States appoints them to the Court for life terms, but the U.S. Senate must approve each appointment with a majority vote.

    The Supreme Court’s most important responsibility is to decide cases that raise questions of constitutional interpretation. The Court decides if a law or government action violates the Constitution. This power, known as judicial review, enables the Court to invalidate both federal and state laws when they conflict with its interpretation of the Constitution. Judicial review thus puts the Supreme Court in a pivotal role in the American political system, making it the referee in disputes among various branches of government, and as the ultimate authority for many of the most important issues in the country. In 1954, for example, the Court banned racial segregation in public schools in Brown v. Board of Education. The ruling started a long process of desegregating schools and many other aspects of American society. In the 1973 case of Roe v. Wade, the Court overturned state prohibitions on abortion—concluding that the Constitution guarantees every woman a right to choose an abortion, at least during early stages of a pregnancy. The Court’s constitutional decisions have affected virtually every area of American life, from the basic ways in which business and the economy are regulated to freedom of speech and religion.

    The Supreme Court is the final arbiter of all the rules and decisions of the lower Federal courts, the United States District Courts and the Courts of Appeal. All judges look up to these judges. They are the featured speakers in the lucky law schools around the country who can persuade them to visit. The Court, outside of governmental clemency hearings and pardons, is just about the last arbiter on all death penalty cases in the Unite States. The judges are assisted by law clerks, a job that lasts about a year and a position once held, leads to the most prestigious choice of jobs in private practice and government after the clerk finishes his or her clerkship. A long term Justice may appoint 30 to 50 law clerks over the period they are on the bench, thirty to fifty or perhaps even more of the future leaders of the bar, the attorneys, in the United States. These are the people who handle the most influential governmental and private legal matters, may influence the various judicial appointments, making up many of the future judges (The most recent appointment as Chief Justice, John Roberts, besides formerly being a Judge on the Court of Appeals and high civil servant in the Executive branch of the government, was the law clerk of the former Chief Justice). These people set the tone of administration of justice in the United States not only in Constitutional Law, but in all federal law, which includes being the final arbiters in many, perhaps most disputes between citizens of different states and citizens and foreigners, matters concerning foreign and interstate commerce, trademarks, patents, copyrights, Federal taxes customs and duties, Indian (Native American) affairs, laws covering most securities and national banking, and many taxation matters and disputes between the states, such as boundary and water rights, just to name a few example. These are the people who apply or do not apply the law that may or may not be favorable depending on which side may win or loose in the courts. Their decisions dictate how future contracts will be drawn, how businesses will operate to comply with laws, and have an impact on the operation of every other governmental body in the United States. They are the interpreters of these laws as well as occasionally passing on constitutional questions. So you see, the power of the members of this court, while circumscribed as are supposedly the powers of all elected and appointed governmental officials in the United States, is enormous. They can only be removed by impeachment (like an indictment) by the House of Representatives followed by a trial and conviction by the Senate, a very seldom ever used procedure.

    Why doesn’t the media honestly report this very reasonable and certainly not bigoted objection to Judge Alito? We do not ask any one to abandon his or her conscience when accepting an appointment to the Supreme Court, and we should suspect any appointee who infers or promises to set his or her conscience aside when acting as a judge on this body. There are nine justices so we can be assured of a diversity of opinion while each exercises his or her conscience in interpreting, understanding and applying the law to individual cases before the court. We should work to preserve that diversity, fair parity and honesty in representation in that branch of the United States Government. The constitution is capable of many interpretations, as any honest student of history who has read the notes of the Federal Convention, the Federalist papers and the various Anti-federalist papers well knows. We may often not really fathom the original intent of the law as much of the Constitution was a compromise. The words strict construction is a coded political cry that has little to do with reality. what may be a strict construction in the eyes of one will be the most ghastly ;legislation form the bench in the eyes of others. We must go back to the very moral fiber as well as intellectual acumen of the nominees who are to sit on the bench, and their affiliations, including their religious affiliations, as they help us to achieve some parity on the court, are fair considerations for all of us and absolutely necessary consideration for each and every senator who must vote on the nominees and then go back to their constituents and tell them why they voted to confirm lopsided courts by race, gender, ethnicity or religion. No Senator can pass this test and vote to confirm Judge Alito.

    Ed Campbell.

    You may freely share this opinion. Afterthought:

    One would have expected a sensitive Judge would have anticipated this reasonable objection to more roman Catholics on the U.S. Supreme Court at this time and would had declined the appointment for the good of the nation.

  • You may freely share this opinion.

    Only if one wants to seem vaguely unhinged.

    Have you been keeping this standard text going for three Supreme Court nominations, now?

  • Ed’s comment reads like comment spam, and I assume it has been posted at quite a few venues. By the way Ed, in regard to the phrase “First Cannon of Judicial Ethics” in your comment, I assume the word should be “Canon” and not “Cannon” unless there are judicial ethics rules that apply to the use of artillery pieces.

    Are you the same Ed Campbell out in Seattle who is an attorney and does palm reading?

    http://www.edcampbell.com/

    That is a unique combination to be sure! Perhaps some of the Catholic justices on the court are palm readers too? Would that cast a different light on the situation?

    Catholics come in all different shapes, sizes and ideologies as you would quickly find out by reading this blog and then reading the blog Vox Nova. So relax. We Catholics on or off the Court pose no threat to you, unless we are albino assassins, in which case all bets are off.

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