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Wednesday, October 21, 2009

Alito on the "Catholic" "Majority" "Issue"

Here's a story on an issue we've written about quite often at Prawfsblawg.  In it, Justice Samuel Alito complains about the recurring nature of "what he called persistent questions about the [Supreme Court's] Roman Catholic majority.  He complains about "serious people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs."  Our own Rick Garnett is quoted in the story, arguing: "[I]t's not the calling of a Catholic judge to enforce the teachings of the faith. It's the calling of a Catholic judge, as well as he or she can, to interpret and apply the laws of the political community."  Rick also points out, quite fairly, that "[n]o one thinks the moral commitments of a judge are irrelevant. I don't think anybody can completely put aside who they are."

This seems right to me.  My view of this "issue" and its complexities is evident from where I chose to place my scare-quotes in the title to this post.  Rick might also have pointed out that, for better or worse, there is no guarantee that any individual Catholic will understand himself or herself as having any particular Catholic mission, no matter how anodyne, to carry out, which raises the question whether one can even talk about a Catholic majority for any purposes other than census-taking without knowing a lot more about the justices in question.  At the same time, Rick is also right that, just as no rule of law or public discourse should restrict the ability to stock the Court with Catholics or anyone else, no rule of law or public discourse should absolutely foreclose people from asking -- but in a sound and fine-grained manner, not a crude or bigoted manner -- about the fundamental commitments, religious or otherwise, of any judge, Catholic or not.  To that extent, while I agree with Alito in marveling at some of the rather silly arguments on this question that have been made by serious people in serious publications, I do not think it is impossible or impermissible for serious people to ask serious questions in serious publications about these issues (Sandy Levinson being exhibit A here).  The questions, like the Justices, need to be examined on their own merits, although in my view some of them fail to pass muster.  In any event, you give good quote, Rick.

Bill Donahue, of the Catholic League for Religious and Civil Rights, is also quoted in the story, and he is also in typical Donahue form.  He argues that this is all about abortion: "The people who are complaining about Alito and Roberts are the same people who would have nine Nancy Pelosis on the Supreme Court who are pro-choice Catholics."  That may be right for some individuals who have raised these questions in a crude fashion, but of course Donahue fails to reflect on the old saw about what's good for the goose. 


Posted by Paul Horwitz on October 21, 2009 at 02:08 PM in Paul Horwitz | Permalink


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People who point out and talk about personal stuff like the religion of the Supreme Court justices creep me out. Were they raised by wolves?

Posted by: Anon | Oct 21, 2009 3:38:53 PM

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