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Posted January 31, 2007

Law, Lawyers, the Court, and Catholicism

The Supreme Court’s 2005-06 term was marked by a number of important, even land mark, decisions. The Justices considered a First Amendment challenge to Vermont’s campaign finance regulations. They divided sharply over Kansas’s capital sentencing procedures. They stirred up our public debate over physician assisted suicide and agreed to decide whether the federal ban on partial birth abortion is constitutional. And, of course, on the last day of the Term, a Court majority concluded that the military commissions created by the Administration to try suspected terrorists were unauthorized by law.

At least as significant as the Court’s high profile rulings, though, were the retirement of Justice Sandra O’Connor, the death of Chief Justice William Rehnquist, and the nomination and confirmation of their successors, Samuel Alito and John Roberts. Justices Rehnquist and O’Connor were law school classmates and close friends for more than 50 years. They were judicial colleagues and allies for a quarter century.

Between the two of them, they provided the Nation with 57 years of judicial service on the high court. Their departure marked the end of the Court’s longest run without a vacancy since the Monroe Administration, and finally ended Justice Stephen Breyer’s 11 year stint as the junior justice charged with answering the conference room door.

The Court’s two new Justices are strikingly accomplished, relatively young, and thoughtfully conservative in their approach to the work of judging. And, both are Catholic. This means that, as of January 31, 2006, when Justice Alito was sworn in, a majority of the Justices sitting on the Court that is constitutionally vested with the judicial power of the United States profess and practice a faith that many prominent Founding Fathers believed cannot coexist with liberty or free government. How did this happen, and what does it mean?

The Supreme Court first met in 1790, in New York City, under the leadership of John Jay. Jay had, along with Benjamin Franklin and John Adams, negotiated the Treaty of Paris, and later collaborated with Alexander Hamilton and James Madison in the powerful tracts that became The Federalist Papers. The Court’s first Catholic did not join the bench for almost fifty years, when Roger Taney succeeded John Marshall, our greatest Chief Justice, in 1836. It would be more than another half century– fifty eight years – until the elevation of the second, Edward White.

For the first two decades of the twentieth century, there were actually two Catholics – White and Joseph McKenna – sitting together on the Court. Pierce Butler served fro m 19231939, and then Frank Murphy took over in 1940 what had become regarded as the “Catholic seat.” However, between Justice Murphy’s retirement in 1949 and William Brennan’s joining the Court in 1956, that “seat” was briefly empty. (Justice Sherman Minton, of Indiana, who served from 1949 until 1956, became a Catholic after he retired from the Court.) Justice Brennan was the Court’s sole Catholic – and also one of the more dominant and influential justices in the nation’s history – until 1986, when President Reagan elevated Antonin Scalia. Anthony Kennedy’s confirmation in 1988 brought the number of sitting Catholic justices to three, where it remained for the most part – with Justice Brennan’s retirement and Justice Clarence Thomas’s return to full communion with the Church – until the Roberts and Alito confirmations.

The creation of a Catholic majority on the Court is more than a matter for cocktail party chatter or games how trivia. (That said, a humorous “Top Ten” list of the changes coming to the now Catholic Court made the internet and email rounds and included “oral arguments in Latin,” “collections between argument sessions,” and “Wednesday night bingo.”) It serves as, among other things, an occasion for reflecting on America’s changing demographics, the politics of Supreme Court nominations and confirmations, and the country’s long, complicated history of anti Catholicism.

It also provides an opportunity to engage and explore broader questions relating to law, lawyering, faith, and the future.

Looking back, the fact that only one of our first 54 Justices was Catholic should come as no surprise. From the Puritans to the Framers and beyond, “anti popery” was thick in the cultural air breathed by the early Americans, who were raised on tales of Armadas and Inquisitions, Puritan heroism and Bloody Mary, Jesuit schemes and Gunpowder Plots, and lecherous confessors and baby killing nuns. Monsignor John Tracy Ellis proposed, in his seminal 1956 work American Catholicism, that a “universal anti Catholic bias was brought to Jamestown in 1607 and vigorously cultivated in all the thirteen colonies from Massachusetts to Georgia.” Indeed, as Notre Dame’s John McGreevy has observed, “anti Catholicism is integral to the formation of the United States.” Certainly, Thomas Paine’s diagnosis would have enjoyed broad support, when he lamented in 1775 that those in “the popish world at this day by not knowing the full manifestation of spiritual freedom, enjoy but a shadow of political liberty.” Throughout the nineteenth century and well into the twentieth, it was regularly charged and widely believed that there is something un American about Catholic clergy, teachings, practices, structure, traditions, and adherents.

For many people and for many years, the Roman Catholic Church served as a kind of foil for “American” values and ideals. And so, in a cultural context where even Supreme Court Justices worried over American Freedom and Catholic Power, Paul Blanshard’s best selling 1949 warning about the “Catholic problem,” it was perhaps to be expected that politicians and commentators alike demanded assurances that Catholic judicial nominees would not be “Catholic” justices.

President Roosevelt, for example, was promised that Frank Murphy would “not let religion stand in his way,” and Murphy himself made it clear that his faith and his vocation were kept “in airtight compartments.” Much more recently, when then Judge Clarence Thomas was nominated to succeed Justice Thurgood Marshall, Virginia’s Governor, Douglas Wilder, wondered aloud whether Thomas, who had attended Catholic schools, would be sufficiently independent of the Pope. (At the time, Tho mas was attending services at an Episcopal church.) These familiar questions were raised again when now Chief Justice John Roberts was nominated, though perhaps more artfully and cautiously. Indeed, the media’s reticence on the matter prompted the rarely reticent Christopher Hitchens to challenge his colleagues in the press to “quit tiptoeing around John Roberts’ faith.” After all, he observed, the Catholic Church is a “foreign state” and “claims the right to legislate on morals [.]” More common, though, were sunny press profiles of the no minee telling us about his parish in suburban Washington, D.C., his all boys Catholic boarding school in northern Indiana, and so on. True, some wondered what Roberts’s Catholic faith would mean for hot button cases about abortion, same sex marriage, and capital punishment. Would he craft opinions and decide cases in a way that was consistent, or at least consonant, with what many in the press regarded as the “Catholic” line? Senator Dianne Feinstein, worried about the “dictates” of Roberts’s religion, and Senator Arlen Specter asked the nominee to endorse John F. Kennedy’s famous assurance that “I do not speak for the Church on public matters – and the Church does not speak for me.” (He did.) In the end, though, the opposition to both Roberts and Alito fizzled, and sounded less in anti Catholic tropes than in familiar, if overheated, warnings about the threats their judicial conservatism allegedly poses to civil liberties and federal power.

The question remains, however: What does the Court’s new Catholic majority mean? What developments does it reflect? Perhaps, as Notre Dame Law School’s Cathleen Kaveny noted, the nomination and confirmation of two more Catholic justices represents a “victory over historic prejudice” and “shows that Catholics have come fully into their own in the United States.” This is not to deny, of course, the truth of Arthur Schlesinger, Sr.’s claim that anti Catholicism is “the deepest held bias in the history of the American people.” Nor is it to dispute the claim that, for all of the nation’s progress toward respectful pluralism, anti Catholicism remains the “last acceptable prejudice,” one that, in Rev. James Martin’s words, is “more than simply a historical legacy. It is the result of inherent tensions between aspects of the Roman Catholic world view and a democratic, post Enlightenment, postmodern American culture.” Still, the Court’s current composition certainly suggests the long distance traveled since, for example, the presidential campaign of Al Smith and indicates that Catholicism is no longer regarded – or, at least, may not publicly be regarded – as particularly anti American.

One might also ask, more specifically, why these five Catholics? That is, why is it that the Court’s five Catholics are also its most “conservative” members? It is far from obvious that Catholic commitments, or a Catholic sensibility, translate neatly into one jurisprudential camp or the other. (Consider the very different approaches of Justices Brennan and Scalia.) No, that the Court’s Catholics are, at present, also its conservatives probably has more to do with the prosaic fact that Republican presidents have controlled the White House for thirty of the last forty years and appointed 11 of the last 13 Justices.

What’s more, the pool from which any president seeking conventionally well qualified candidates is more likely than before to include many Catholics, who will have varying views – “conservative” and “liberal” views – about statutory and constitutional interpretation or the role of federal judges. The barriers that, until relatively recently, existed for Catholics to the kind of credentialing positions and degrees that are now thought necessary for service on elite courts have fallen. Justice Alito is a Yale Law School graduate, and Chief Justice Roberts attended Harvard Law School. In the early twentieth century, by contrast, the President of Harvard University refused to admit graduates of most Jesuit colleges to its Law School.

To the extent recent Republican presidents have sought qualified and experienced nominees thought to be welcoming of religion in public life, or open to the regulation of abortion, that more narrow pool has, in recent decades, been particularly well stocked with Catholics. This is not because well credentialed and intelligent Catholic lawyers are all, or even predominantly, conservative in political or judicial outlook. It is, instead, that many of those who would have such an outlook are, at present, Catholic. (This could change, though, as gifted Evangelical Protestants, such as Judge Michael McConnell, follow the Catholic path into elite law schools and legal jobs.) What of the concern, expressed in some quarters, that the new Catholic justices might prefer their faith or the Church’s teachings to the nation’s laws? For example, the Constitution has for several decades been understood by a majority of the justices as prohibiting most regulations of abortion, and as permitting governments to impose – subject to a number of constraints, of course – capital punishment. A Catholic justice is taught by the Church, though, that abortion is a grave moral evil and the death penalty permissible, if at all, only in cases of the most pressing necessity. In hot button cases, will Catholic justices, because they are Catholic, substitute revealed morality for the will of We the People?

Such questions and concerns seem misplaced. Remember, all judges – Catholic or not – have views, commitments, and experiences that shape their decision making and reasoning. There is no reason to demand of Catholic judges specifically that they “put aside” their faith when they put on their judicial robes. Instead, we can and should ask of every judge that she work conscientiously in every case to identify not her own preferred outcome but the answer that is given by the relevant legal texts, rules, and precedents. The Catholic understanding of vocation, and of justice under law, extends to Catholic judges the same invitation. Considering and answering the questions raised by the nomination and confirmation of two new Catholic justices has been good for our public conversations about the craft of judging, the nature of law, and America’s religious pluralism. However, the changing composition of the Supreme Court is only one of several developments in the legal arena that involves and should be of interest to Catholics.

First, the law schools: There have been Catholic law schools in the United States for some time, starting with the Notre Dame Law School, founded in 1869, and Georgetown’s law center, established the next year. As Professor Thomas Shaffer has described, though, most of what are today the best known Catholic law schools were established in the early twentieth century with the goal of providing upward mobility to the children and grandchildren of Catholic immigrants – Fordham (1905), Loyola Chicago (1908), St John’s (1925), Boston College (1929), and so on.

These urban law schools educated in the law thousands of Catholic politicians, judges, civic leaders, and “main street” lawyers for who m the elite schools and white shoe firms were not an option. And, these schools were thoroughly Catholic, in the sense that the overwhelming number of their students and faculty were professing Catholics. There was, for the most part, little need for reflection or hand wringing about “Catholic identity” or the requisite “critical mass” of Catholics. These schools were effortlessly “Catholic,” primarily because they were full of Catholics.

The situation today, of course, is different. Many religiously affiliated institutions, and Catholic ones specifically, now have tenuous connections to their roots in faith traditions and religious communities. In keeping with the recent resurgence of interest in the identity and mission of Catholic universities, there is a rich ongoing conversation not only about what it means to be a Catholic law school, but about the special place and role of such schools in the legal academy.

Law schools, students, and faculty increasingly appreciate the extent to which a deep, critical, and intellectual engagement with the teaching and intellectual tradition of the Church can be liberating, and enriching, not constraining or confining. More and more, a law school’s Catholic mission and projects are recognized as strengths – to say nothing of marketing advantages.

This is not, it should be emphasized, a reactionary or nostalgic conversation. The idea is not a return to an imagined past of richly and thoroughly Catholic law schools. It is, instead, to rethink an approach that is content to locate a Catholic law school’s identity in a few liturgical offerings,

clinical programs, and abstract concerns for “ethics.” The goal is not simply to produce competent lawyers who are Catholic, and it is not to protect Catholic law students from the allegedly pervasively hostile environment at secular law schools. It is, instead, to be a place where Catholic legal scholars and law students work through the claims that the Catholic faith and intellectual tradition make about, and contribute to, law and the legal development.

So, there are new Catholic law schools, like Ave Maria School of Law and St. Thomas University School of Law, both of which – while different in approach– were formed recently and consciously to be deeply Catholic law schools, not simply by virtue of heritage or student demographics, but in order to enrich the education of their students and the legal profession more generally. At the well established schools, which might once have been content merely to acknowledge the historical religious affiliation, there are searching conversations about the mission of a Catholic law school, a sharper focus on identifying and hiring productive Catholic scholars, and creative new initiatives for putting that mission into practice. The Journal of Catholic Legal Studies at St. John’s, the Scarpa Chair in Catholic Studies at Villanova, Catholic University’s new required first year course in the Catholic intellectual tradition, and Fordham’s project on faith and the professions are just a few examples.

Next, the legal profession. Throughout the 1990s, the complaint was common that lawyers had lost their way, and that law practice was no longer a learned profession so much as a ruthlessly bottom line oriented business. Lawyers’ salaries – and workloads – skyrocketed, but they were less and less happy in their vocations. As Patrick Schiltz – a former law professor at Notre Dame and St. Thomas, and now a federal judge – showed, the lawyers’ lives were less like those of literature’s hero attorney’s and more like those of bored checkout clerks. The dean of the Yale Law School, Anthony Kronman, wrote, in TheLost Lawyer, of a “spiritual crisis” among lawyers, and lamented the declining prestige among lawyers of prudence, practical wisdom, and public spiritedness.

Other, equally eminent lawyers and scholars voiced similar concerns. At the same time, and perhaps in response, an amorphous, loosely connected, but provocative and inspiring group of practitioners and lawyers developed what has come to be known as the “religious lawyering movement,” which arose to explore and nurture the relationship between lawyers’ religious commitments and communities, on the one hand, and the practice of law, on the other. This movement was not confined to Catholics, though Catholics were and are among its more prominent advocates. Notre Dame’s Thomas Shaffer, in particular, built the movement’s foundations in his many writings that resisted the reduction of lawyers’ morality to a “hired gun” adversary ethic and that urged religious lawyers to learn from, and draw upon, the more communitarian moralities of their respective traditions.

Today, this religious lawyering movement is thriving, particularly in Catholic schools and among Catholic lawyers. Organizations like the Catholic Lawyers Guilds and Thomas More Societies support and encourage lawyers hoping to rediscover a faithful understanding of law as vocation. Young scholars like Robert Vischer and Amy Uelmann, following in the footsteps of Shaffer and Russ Pearce, are developing an account of lawyering that incorporates, and does not wall off, the lawyer’s whole person, including her identity shaping faith.

Lawyers and law students everywhere struggle with “balance” and resist the alienation that can accompany legal education and practice. The Church has always held out the goal of personal integration, and resisted disintegration and pulverization. Catholic law schools, scholars, and lawyers are offering the profession a rich, and perhaps re-energizing, understanding of work, its dignity, and its significance.

Finally, legal scholarship. Across a range of disciplines, in Catholic and non Catholic law schools alike, a diverse and growing group of scholars are drawing explicitly on the resources and experiences of the Church for insight, questions, and challenges. Some of this work, of course, is in the areas of “law and religion,” jurisprudence, and church state relations but, increasingly, it ranges more broadly, to corporate and business law, immigration, punishment theory, international and human rights law, torts and contracts, and on and on.

The aim of this work is not only to explore and understand well the Church’s teachings and tradition, but to engage issues of common interest to legal scholars in new, illuminating ways.

A growing number of legal scholars – most, but not all, Catholics – are working with the Church’s Social Tradition, and bringing its principles to bear on questions of jurisprudence, legal theory, public policy. Indeed, some of the best, nonCatholic law schools – including Harvard, Yale, and the University of Chicago – have offered or will soon offer “Catholic Social Thought and the Law” classes. Villanova now publishes the Journal of Catholic Social Thought. And, for the past few years, a politically diverse and shifting group of Catholic law professors have contributed to the “Mirror of Justice” weblog, which is “dedicated to the development of Catholic legal theory.” From First Amendment matters to the minimum wage, from just wars and presidential elections to the anthropological premises of family law and a Catholic legal feminism, the conversation has been rich, provocative, and civil.

It is an exciting and auspicious time for this scholarship. Legal scholarship in recent decades has been enhanced and enriched by an interdisciplinary turn, an increased emphasis on comparative and international work, and by an effort to identify and elaborate the normative foundations for the every more salient body of international human rights law. Catholic legal scholars can make, and are making, crucial contributions.

It has been observed since Tocqueville that America is law soaked and litigious. It might seem strange, then, that our thinking about the law, its structure, the legal profession, and so on tends to be confined to the annual end of term flood of opinions from the Supreme Court and the partisan politics surrounding judicial nominations. There is, after all, more to law than this.

Maybe the dustup about the significance of two new Catholic Justices, and a Catholic majority on the Supreme Court can serve as a kind of teaching moment.

We can educate our fellows about the law, drawing on the tradition, and also renew our commitment, as Catholic lawyers and legal scholars, to a new and exciting project.

Richard W. Garnett
Lilly Endowment Association Professor of Law, University of Notre Dame