Miller on Scalia and "Catholic" judges

Over at the First Things blog, Villanova law prof and MOJ-friend Robert Miller has this post, discussing Justice Scalia's lecture at Villanova and also my own post about that lecture, in which I suggested that Scalia, his protests to the contrary notwithstanding, really is a "Catholic judge."  Here's some of what Miller has to say:

. . . Scalia’s conclusion: A person’s moral values are generally irrelevant to the interpretation of legal texts—even when those values are Catholic values.

If he were not a textualist and an originalist, if he thought he ought to rely on substantive moral notions not found in the text, then, Scalia said, his Catholic faith would make a large difference in how he judges cases. Similarly, if he had to judge common-law cases—cases that do not involve texts enacted by a legislature but only judge-made law, cases of the kind that sometimes come before state courts but rarely come before federal courts—things would likewise be different. In making common-law decisions, a judge has to make normative judgments about which laws are best, and so the judge’s values are properly in play. So, too, in the voting booth. Indeed, when the question switches from which laws we actually have to which laws we ought to have, then a person properly relies on moral values, whether they be Catholic or anything else.

Many Catholics, even ones who are fans of Scalia, might find this surprising, even unacceptable. In my view, however, it’s perfectly correct . . .

Responding to my suggestion that Justice Scalia, whether he likes it or not, is a "Catholic judge", Miller writes:

We can take any profession and point out that Catholics who engage in that profession have special reasons, based in Catholic teaching, to do their jobs well in accordance with the standards applicable to all who do such jobs.  Nevertheless, we do not speak of “Catholic physicists” and much less of “Catholic third-basemen” or “Catholic real-estate agents” or “Catholic short-order cooks.”

And with good reason. A man may be a Catholic and a physicist, but this doesn’t make him a Catholic physicist. Some adjectives, when put into attributive position (“a heavy drinker”), combine with a substantive to yield a peculiar meaning (“some one who drinks a lot”) different from the mere conjunction of meanings of the adjective and the substantive (“heavy and a drinker”).

So it is, commonly, with the adjective Catholic. A Catholic theologian is not merely a Catholic who is also a theologian but a theologian who studies Catholic theology; and a Catholic writer is not merely a Catholic who is a writer but a writer who writes on Catholic themes. By parity of reasoning, a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic—and this is exactly what Scalia denies he does.

There is no peculiarly Catholic way of judging. And thus Justice Scalia is right when he says, “There is no such thing as a Catholic judge.”

Maybe so.  Certainly, like Miller, I do not think that the Catholic faith does, or should, supply a Catholic-who-is-a-judge with the substantive content of her rulings.  Still -- and I am entirely open to the possibility that I'm just being stubborn or sloppy -- I do not yet see why I need to agree that "a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic".