Joyce Appleby, Catholic Conscience, and the Supreme Court

In a week that included the murderous attack of a crazed anti-Semite at the Holocaust Museum in Washington, and the reported complaints of President Obama's former pastor Jeremiah Wright that "them Jews" in the White House won't let him talk to the president, it took a distinguished historian of early America to round out the news with an expression of that much more respectable old American prejudice, anti-Catholicism.Emerita UCLA professor Joyce Appleby, writing an op-ed for the McClatchy-Tribune newspapers, asks in her title, "Should Catholic justices recuse themselves on certain cases?"

You see, Judge Sonia Sotomayor, if confirmed to the Supreme Court by the Senate, will bring the total of self-identified Catholics among the current justices to six. These six would be two-thirds of the Court's membership -- and half of the Catholics who have ever served on the Court in its entire history.If we include Judge Sotomayor, the three most recent appointments have all replaced Protestant justices with Catholic ones.

So what? Can Catholics not properly perform the duties of Supreme Court justices? Professor Appleby isn't so sure they can:

[B]ecause of the Catholic Church's active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants. . . .

[R]eligion is not a factor in the majority of decisions that the court will make each year. It might not be relevant at all had not the Catholic Church, with some other denominations, taken public stands on issues of great political significance today.

Abortion comes immediately to mind, but it's not the only constitutional matter where religion and politics clash. . .

For instance, a case might make its way to the Court challenging the validity under the federal Constitution of California's state-constitutional ban on same-sex marriage. Should the Catholic justices all recuse themselves because of their church's stand on this issue? Appleby writes:

Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. . . .

[W]ho will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?

We might well ask, what of those justices whose "ingrained convictions" cause them to fear they will not be made welcome in the most fashionably correct circles if they do not vote in favor of abortion, same-sex marriage, or the restriction and ultimate elimination of the death penalty? Should they not recuse themselves in cases where they might risk losing the most desirable invitations? But Appleby is evidently serious about this matter, so let us attempt a serious reply.

Perhaps Professor Appleby imagines this can be solved by having a maximum "quota" for Catholic justices on the Supreme Court -- say a maximum of three, so that their recusal in itself does not prevent a quorum. No such quota could be formally adopted without running afoul of the Constitution's ban (in Article VI) on any "religious Test" as a qualification for serving in public office.

For starters, has she noticed that the rules of the Supreme Court require a quorum of six justices for the Court to function in any way? If, in any case in which a "Catholic position" was evident on the issues, all or even most of the Catholic justices were to recuse themselves, the Court would be unable to act at all, leaving the issue where it lay with the state or federal court below whose ruling one of the parties petitioned the Supreme Court to review. In instances where conflicting decisions had been made by different federal circuit courts or state supreme courts, this would leave constitutional questions having different answers in different parts of the country -- precisely one of the eventualities the Supreme Court exists in order to prevent.

Perhaps Professor Appleby imagines this can be solved by having a maximum "quota" for Catholic justices on the Supreme Court -- say a maximum of three, so that their recusal in itself does not prevent a quorum. No such quota could be formally adopted without running afoul of the Constitution's ban (in Article VI) on any "religious Test" as a qualification for serving in public office. Informally, as an understanding among our political elites who nominate and confirm federal judges, it would still violate the spirit of that noble provision and gravely insult the sensibilities of millions of American Catholics -- and millions more of their non-Catholic neighbors who find them worthy fellow citizens.

But there are already five Catholic justices, and there may soon be six. So perhaps Professor Appleby is interested in learning which of the Catholic justices really feel themselves bound by their church's strictures when it takes "positions binding on its communicants." Perhaps it is only these Catholics who should recuse themselves. We know, for instance, that President Obama has managed to staff his administration with self-identified Catholics, from his vice president to his Health and Human Services secretary and beyond, who find themselves at odds with the church's hierarchy on matters of grave moral importance like abortion. Surely Appleby is aware that Justice Anthony Kennedy, one of the Catholics on the Court today, voted in the 1992 Planned Parenthood v. Casey ruling to uphold the abortion regime set in place by Roe v. Wade in 1973 -- and that he has also voted twice since then to uphold state and federal bans on partial-birth abortion, but without repudiating his earlier vote in Casey. Would she count Kennedy among those justices who should recuse themselves in "Catholic-sensitive" cases? Or is he, in her view, a "good" Catholic justice because he is not too good a Catholic? We read that the White House is giving Democratic senators assurances that Judge Sotomayor (an infrequent churchgoer) will be "safe" as a vote to maintain the abortion regime in constitutional law -- so maybe she will get a pass on the Appleby standard.

But clearly this kind of inquiry only recapitulates the problem of a religious test for public office. Indeed, it intensifies the problem. Litigants before the Court would somehow gain an entitlement to request the recusal of those justices whose Catholicism the litigants believed to be of such a character as to bias their decision of the case at hand. Thus the justices' theological and doctrinal commitments, their faith and their doubts -- not merely their self-identification as members of a church -- would become fodder to be chewed over by the parties and counsel to cases before the Court, as well as by public and media speculation.

Could there possibly be a greater intrusion into the religious liberty of American Catholics than to promise them this kind of scrutiny should they ever think of serving in public office? And why should we think it would stop with Catholics? Appleby alludes to "some other denominations" that make moral demands on their faithful adherents where certain public policy questions are concerned. So who will be next? Mormons? Orthodox Jews? Quakers? Muslims?

Let us acknowledge that for Catholics, the possibility exists of a fatal conflict between the duties of the faithful and the duties of a judge. Justice Antonin Scalia discussed this possibility several years ago in a widely-reported speech on the death penalty that he gave in Chicago (later published as "God's Justice and Ours" in First Things magazine). There he said:

[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own.

Not mere recusal but resignation from the Court would be in order! But of more interest here is that Scalia was sure of this duty because he was equally sure the Constitution permits the death penalty -- and so the judge who "sabotag[ed] death penalty cases" with "rules of his own" having no source in the Constitution would be frustrating the document's purposes and betraying his oath. And if his moral views on capital punishment could not in good conscience be put to one side, then in Scalia's view he would have to choose his conscience over his oath -- and resign. (There are Catholic thinkers who believe Scalia was wrong to reach this conclusion -- that as an appellate judge, he should view himself as not implicated in the imposition of the death penalty in the way that a trial judge with more discretion would be -- but it is instructive to follow Scalia's lead here because he takes the toughest line a Catholic can reasonably take about the possibility of his conscience being at odds with the duty of an appellate judge.)

Justice Scalia was thankful that, as a son of the Catholic Church, he was not bound by any categorical moral strictures on his conscience, either in catechism or in other dogma, against the death penalty, "because I like my job, and would rather not resign." Professor Appleby is misinformed about Church teaching if she believes that a position against the death penalty per se is enjoined on every one of the faithful. But what of the other issues that concern her -- abortion, which is categorically condemned by the Church as the destruction of innocent human lives, and same-sex marriage, which contradicts the Church's fundamental theology of sexuality and family, not to mention one of its sacraments?

Here too it behooves us to be as sure of the Constitution as we are of the Church's binding moral commitments. As Justice Scalia put it in his Chicago speech, "I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion." We would go still farther, and say that no one even today believes the Constitution "contains" such a right as a matter of its text, history, or fundamental principles -- but that some people in the political, legal, and academic communities are highly invested in a power of the Supreme Court to say the right exists nonetheless. The same can be readily said of same-sex marriage: no one until quite recently advanced any form of constitutional argument for such a "right," and the only thing that will bring it about is a "living Constitution" approach that regards our fundamental charter as a thing to be captured by the acquisition of political power in the hands of willful judges.

Let us put the matter plainly. It is possible for a Catholic judge -- but not only a Catholic one -- to find his conscience at war with his duty under the Constitution, but only in those instances when his conscience calls him to be false to the Constitution.

So the justice who votes to sustain democratically enacted laws restricting or even proscribing abortion, or forbidding the "marriage" of same-sex couples, is not even arguably flouting his oath as a judge; he is fulfilling it. Professor Appleby may like to suppose that a Catholic justice can have only "Catholic" reasons to vote to sustain such laws. But -- to put it most charitably -- this is at best a failure of imagination on her part. Assuming -- which we should not but she perhaps does -- that Supreme Court justices are moral philosophers with political power, can she not conceive of any rational account of justice, wholly without reference to revelation or religious dogma, that would result in the protection of innocent human life from conception, or in a view of the conjugal family as the proper preserve of marriage? Or, if she understands the proper role of the judge, can she not conceive of a conventional understanding of constitutional law that would conclude that there is no warrant to overturn reasoning such as this when it is made by legislatures?

Does Professor Appleby imagine that only a Catholic can be brought to think along these lines? What then of the Protestant justices William Rehnquist and Byron White, originally the only dissenters from Roe v. Wade in 1973 (while the only Catholic then on the Court, William Brennan, voted in the majority)?

Let us put the matter plainly. It is possible for a Catholic judge -- but not only a Catholic one -- to find his conscience at war with his duty under the Constitution, but only in those instances when his conscience calls him to be false to the Constitution. Whether guided by a hierarchy and a magisterium or not, it is the job of the judge to know clearly both what his conscience requires and what his judicial duty demands -- in this case, to know the Constitution's demands on him. If these conflict in an intractable way that goes to the heart of both obligations, then perhaps he had better resign, as Justice Scalia says. But if they coincide, there is no problem. For if the judge has gotten the Constitution right, what does it matter how he came to be motivated to get it right? And if he has gotten the Constitution wrong, we have much bigger problems than whether there are "too many" Catholics on the Supreme Court.

Professor Appleby might say it is naïve to claim the Constitution can be "gotten right" -- that the judiciary is just the scene of another form of power struggle of the sort we see in legislatures, this one over a Constitution with no fixed meaning. But if that were so, then, as Justice Scalia understood, there can be no possibility of a conflict between conscience and judicial duty: "a proponent of the living Constitution,' . . . believes that it means what it ought to mean," and so can in good conscience push constitutional law in any direction he wants.

Professor Appleby seems to know what direction she wants the Constitution pushed in, and she may think she knows as well what direction certain sorts of Catholics would push it in -- if they were Constitution-pushers. There is little else she appears to know about the weighty matters she took up in her article.