Catching Up and the Catholic SCOTUS

On the (interminable) flight back from Rome, I tried to catch up on my magazine reading -- mostly Commonweal of course, but also the New Republic. The latest issue of issue of Commonweal contained Rick's characteristically insightful review of three relatively new books on Church/State, including Noah Feldman's, which was discussed at length here on MOJ, and Marci Hamilton's GOD VS. THE GAVEL, which we did discuss, although not at as great length. I suspect that the strict limits on the length of reviews in my favorite mag kept Rick from a longer critique of Marci's book (Rick -- am I wrong?). While I like and respect Marci an awful lot, I think she has gone a bit over the top in her willingness to chop back constitutional protections for religious practices. After all, the First Amendment has been of little use to dioceses in sexual abuse litigation--so why reduce its scope even further?

      In any event, the other piece that pulled me out of my flight-induced torpor was a TRB by Franklin Foer in the November 14 New Republic entitled "Brain Trust," which was ostensibly about the phenomenon of an increasingly Catholic dominated SCOTUS, but was  actually an interesting discussion about the relationship of evangelicals and Catholics in politics and the growing split among Catholic intellectuals.

              Coincidentally, Justice Scalia gave an interesting talk before the American Catholic Historical Association here in Phila about three years ago on the history of Catholics on the SCOTUS. He summarized his historical analysis by saying that we've moved from essentially excluding Catholics, to guaranteeing a Catholic "seat", to making it irrelevant whether a candidate is Catholic. It looks like we have to add a fourth step: under the Bush administration, being a Catholic is a positive plus (at least a certain kind of Catholic). In trying to explain why this was so, Foer began with a discussion of Mark Noll's well-known THE SCANDAL OF THE EVANGELICAL MIND, and the trend among conservative evangelicals to turn to Catholics for "intellectual aid." As Foer put it, evangelicals did not just need Catholic votes and political resources "they needed Catholic minds to support them with rhetoric that relied more on morality than biblical quotation." Foer emphasizes the political implications of this convergence by pointing out the increased use of Catholic CST rhetoric in Bush's last presidential campaign (solidarity, the common good, protecting the weakest member of society, etc.) I'll let the readers decide for themselves whether that use of this rhetoric meant anything or whether it was just cant --you can imagine where I stand on that.) Now, Foer is savvy enough to point out that the "scandal of the evangelical mind" and its resulting turn to the Catholic moral and social tradition did not "inevitably lead Republican presidents to appoint Catholics [to SCOTUS]." His explanation for why that did happen is threefold. First, there's just so dang many Catholic lawyers. Even when ethnic Catholics could not get into "top law schools, they could attend places like Fordham and Villanova," and now many of them such as Roberts and Alito are products of the "top" schools.(Ouch! I guess that was intended as a kind of compliment though I'm not sure. Foer also does not seem to recognize that even after the "top" schools [ie, the ones where the rich and blueblooded went] opened up in the 50s and 60s, many bright young Catholic kids chose to go to Catholic law schools such as Fordham and Villanova anyway.) Second, many Catholic lawyers "wended their way into the arms of conservatism" as a reaction to the tumult of the 60s and Roe, and to assiduous courting by Nixon and Reagan. Third, appointing Catholics is just good politics, as the Republicans continue to pry Catholics away from what is left of the New Deal connection to the Dems. I don't know if any of this really accounts for the (potential)presence of five Catholics on SCOTUS. Political happenstance may be as good an explanation; if Miers had made it we'd have an ex-Catholic evangelical, and Alito hasn't been confirmed yet, and could be replace by a non-Catholic.

The more interesting part of Foer's analysis is his recognition that the five Catholic "economic libertarians" appointed by Republican presidents do not represent an uncontested version of Catholicism. He says, "At the same time Catholic conservatives joined the evangelicals in battle, they have simultaneously waged a war against their co-religionists in an attempt to alter the Church's traditional preference for a strong state...Led by [Richard John] Neuhaus and ...Michael Novak, these conservatives want to realign papal teaching with support for an unrestrained market. As Neuhaus...has put it, 'Capitalism is the economic corollary of the Christian understanding of man's nature and destiny.' " As MoJ readers know, I believe that is nonsense, but i do not want to fight that out again now. What I found useful in Foer's piece is the recognition, rare in the non-Catholic press, that the  heavy "Catholic" presence on SCOTUS is mostly (I don't know abt Kennedy) the presence of a particular kind of American Catholic, and that our understanding of the significance of their "Catholicism" for what they do on the Court should take into account what I regard as the highly tendentious and contested nature of their Catholicism, particularly with respect to the social and economic issues. In fact, their Novak-inspired "Catholic" view of the proper relationship between the market  and the state may ultimately have broader practical significance than their Catholic views on abortion, as they bring it to bear on the many important cases involving federal regulation of business and economic life they will confront over their careers.

--Mark