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Thursday, October 18, 2007

Is Justice Scalia a "Catholic" judge?

He says no.  I say, "actually, yes."

Posted by Rick Garnett on October 18, 2007 at 09:16 AM in Religion | Permalink


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Prof. Garnett, if you meant that Scalia's Catholicism explains "the kind of judge he aspires to be," then it appears you're saying that the way of judging that Scalia aspires to is "the way a Catholic, like everyone else, should be a judge." (your emphasis). Do you really think that every judge should be the kind of judge Scalia aspires to be?

Posted by: anon | Oct 18, 2007 5:02:05 PM

C. Zorn -- I appreciate your paraphrase. I think I meant only to say that *Justice Scalia* thinks the way he does (in part) because he is a Catholic, formed by the kind of "Catholic" reasons that exist for being the kind of judge he aspires to be. I just wanted to avoid suggesting that, because there are "Catholic" reasons available for being (what Justice Scalia thinks) are good judges, it is the case, generally, that Catholics make better judges than others.

Posted by: Rick Garnett | Oct 18, 2007 3:59:28 PM

I read your phrase: "and, I'm confident, he thinks this way (at least in part) because he is a Catholic" to mean not that Justice Scalia's Catholicism was either necessary or sufficient for his "thinking that way," but rather to suggest that -- in an all-else-equal sort of way -- Catholic judges are more likely to "think that way" than are others.

In other words: If your last phrase has any sort of causal - or even correlative - force beyond Justice Scalia (and my strong hunch is that you believe it does), then it runs counter to your claim about how likely Catholics (as against non-Catholics) are to judge in a particular way. If the order of the phrases are reversed and juxtaposed, the issue is perhaps a bit clearer (paraphrasing): "Justice Scalia believes what he believes about judging in part because of his Catholicism, but Catholics are no more likely to believe what Justice Scalia believes than are non-Catholics"). The point is really that either (a) the two points are, if not incompatible, at least at some tension with each other, or (b) you believe Justice Scalia to be an exceptional case, an "outlier" in this regard.

(FWIW, I'm as convinced as you that Justice Scalia's Catholicism shapes the way he views both the law and his role as a jurist. But I'd go even farther, and say that -- again, in an all-else-equal sort of way -- Catholic judges in general are more likely to "think that way;" I'd also be likely to add a few additional points to your trio of judicial desiderata while I'm at it).

Posted by: C. Zorn | Oct 18, 2007 3:11:12 PM

Ordinarily, to say that X is "because" of Y means that X would not be the case if not for Y or at least that Y makes X more likely.

Posted by: anon | Oct 18, 2007 2:23:47 PM

C.Zorn -- I guess I don't see the "fly in the face" aspect of the last phrase. Could you (or someone else) say more? To say that there are "Catholic" reasons for being the kind of judge I describe (and Scalia claims to aspire to be) is not to make the empirical, and certainly falsifiable, claim that, in fact, "Catholics are more likely to judge in this way than others are." I can say that I suspect Justice Scalia has, in fact, been formed by these "Catholic" reasons without saying that only such reasons could form such a judge.

Posted by: Rick Garnett | Oct 18, 2007 1:48:19 PM

As I read you, your position and Scalia's aren't that far off after all. There seems nothing distinctively "Catholic" your argument; if I reread your second paragraph, and substitute "Italian-American," or "brunette," or "Pisces" for "Catholic," it seems equally valid. Valid, that is, right up to your last phrase, which in turn seems to fly in the face of your assertion that you're not "saying that Catholics are more likely to judge in this way than others are."

So, which is it?

Posted by: C. Zorn | Oct 18, 2007 12:39:25 PM

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