Gerhardt on the Catholic-Majority Court

Courtesy of Mirror of Justice comes a link to a paper by Michael Gerhardt of UNC, titled Why the Catholic Majority on the Supreme Court May Be Unconstitutional.  Here are some relevant snippets from the introduction:

In this Essay, I examine two ways in which our national leaders may have damaged the rule of law in the ways in which they appointed the current Catholic majority on the Roberts Court.  First, [in] their zeal to control the Court through their appointments to the Court our national political leaders demonstrated (perhaps unintentionally) a regrettable faith in the rule of law. . . . The problem with insisting that the maintenance of a government of laws depends on appointing people with the right kinds of ideological commitments is that it sacrifices another principle on which our faith in our system of government of laws in turn depends.  I call this other principle the golden rule of constitutional law: On the Supreme Court, justices recognize that they must treat others' precedents as they would like their precedents -- the ones with which they approve -- to be treated.

A second, serious problem with the current Catholic majority on the Court is that the appointments which made it possible may have been unconstitutional.  The selections of some if not all of these justices may have violated several constitutional prohibitions -- Article VI's express prohibition of religious tests for federal office, the Fifth Amendment's Due Process Clause, and perhaps the First Amendment's prohibition against the establishment of religion -- especially as these prohibitions would likely be construed by the current Catholic majority of the Court. 

A short but interesting and provocative paper.  I'm especially interested in the second argument, given that I have an article on similar themes, but which comes to very different conclusions, coming out shortly in the William & Mary Bill of Rights Journal, in a symposium convened by our own Rick Garnett.  My own view is that the Religious Test Clause does not prohibit the kinds of activities Gerhardt talks aboout -- essentially, Presidents or others using religion as a proxy for or indicator of a particular kind of character, jurisprudential or otherwise, when selecting and approving Justices.  I won't elaborate on that argument here.  Suffice it to say for now that Gerhardt's argument here relies substantially on the view that the current majority would rely on a plain meaning reading of the Religious Test Clause, and that this clause unambiguously forbids the kind of conduct he is discussing here.  I disagree that the clause is unambiguous in a plain-meaning sense.  Like many constitutional provisions, it is a term of art, whose meaning must be filled in at least partially by a sense of the historical understanding of the phrase.  And that history, along with a variety of policy arguments, counsel a narrower reading of the clause, and certainly don't suggest that Presidents or Congresses are forbidden to consider the moral and personal character of judicial nominees, for which religion is one valid indicator. 

[a little more after the jump]

Those who are more sympathetic to his argument might consider that he generally appears to believe that Presidents and Congresses engaging in the fully discretionary selection and approval of Justices (and other government officials) are bound by not just the Test Clause, but by Fifth Amendment Equal Protection, at least in a Constitution-outside-the-courts way.  So are Thurgood Marshall, Clarence Thomas, and Sandra Day O'Connor also potentially unconstitutional?  Not to mention all the white male Justices throughout history who were chosen in the context of a broader unwillingness to consider members of certain races or genders as potential Justices?  Or the Clinton cabinet, which its designers said should "look like America?"  Or the Bush 43 cabinet, which actually does look like America?

I have less to say about his rule of law argument.  To the extent that he wants to make a strong-form argument here, I'm not sure I find it wholly persuasive; to the extent he wants to make a weaker argument, I find it somewhat unexceptional.  And once one acknowledges that a President can and perhaps must select a nominee in line with a particular vision of what the rule of law requires, and that Justices who adhere to the golden rule of precedent are in turn allowed at least some room to consider which precedents they approve of, a lot of the bite is taken out of the argument.  Still, the argument is much stronger and less extreme than Gerhardt's introduction leads one to anticipate. 

In both cases -- both the rule of law argument and the religious test argument -- Gerhardt has much that is wise to say about what how politicians and lawyers should conduct themselves -- by abandoning "coded rhetoric in public discourse" and speaking plainly, by being plain about the extent to which ideology or character play a role in their selections, and by encouraging "academics interested in speaking truth to power" (a phrase I'm decidedly uncrazy about) to adopt a similar candor in speaking about judicial nominations and the rule of law.  These are commendable and important arguments even if you don't buy all of Gerhardt's central arguments; I might add that I've spoken about some of these ideas in arguing in my William & Mary paper for a set of rules of "constitutional etiquette" for the use and discussion of religion in the context of judicial nominations.

Read the whole thing!  As they say.  And take a look at my piece as well; baby needs a new pair of shoes.