First Things on Scalia and "Catholic Judges"

(Hat tip: Custos Fidei)

Robert T. Miller writes at the First Things blog On the Square:

On October 16, Antonin Scalia gave the keynote address at Villanova Law School’s second annual Scarpa Conference on Catholic Legal Studies. Speaking on “The Role of Catholic Faith in the Work of a Judge,” Justice Scalia reached a conclusion many readers of First Things may find surprising: “There is no such thing as a ‘Catholic judge,’ he declared. “The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge. . . . Just as there is no ‘Catholic’ way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”

Nothing he does as a judge, Scalia insists, is in any significant way determined by his being a Catholic. The argument is straightforward. With limited exceptions, federal judges decide only cases involving laws that are enacted texts—statutes enacted by Congress or the constitutional text enacted indirectly by the American people through their state legislatures. Since Scalia is a textualist and an originalist, he thinks a judge should simply give effect to the text of the law—to the values the text enunciates, not the values the judge himself might hold.

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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, and I would remind such Catholics of the political cartoon that Tony Auth published back in April when all five Catholic justices on the court voted in Gonzales v. Carhart to uphold the Partial Birth Abortion Ban Act of 2003.

The cartoon (which I wrote about at the time) showed the five Catholic justices wearing bishops’ miters, and its point was that their decision was illegitimate because it sprang from their Catholic religious convictions rather than from legitimate legal argument. At the time, many Catholics found the cartoon outrageous and bigoted, and I think they were right to do so.

But if we reject Scalia’s view that the Catholic faith is irrelevant to how Catholic judges should decide cases, then it’s hard to see what’s wrong with the Auth cartoon. After all, if being Catholic really does make a difference to how judges decide cases, then Auth was perfectly right to point out the connection. It’s precisely because Justice Scalia is correct about the irrelevance of his Catholic faith to how he decides cases that Auth was wrong. We can’t say both that the Catholic faith makes a difference to how judges decide cases and that Catholic judges aren’t doing something specifically Catholic on the bench. Indeed, the very rule of law—that there should be one law for everyone, administered impartially, by whoever sits on the bench—requires that Scalia’s view, or something very much like it, be right.

[Read the whole thing]

Previous Pro Ecclesia posts on this subject:
Scalia Reflects on Catholic Faith, Work Life at Villanova