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Our Brothers On The Court

It is a peculiarity of the current moment in American politics that the Supreme Court has six Catholic and three Jewish justices when Catholics and Jews make up only 22% and 3% respectively of the US population. (Justice John Paul Stevens, who retired in 2010, was the last remaining Protestant on the Court.)In the comparative lull today before the Court releases its final decisions of this term tomorrow, and in the wake of a flurry of decision in recent days, I've found myself thinking of the aftermath of Hurricane Katrina.Watching the the devastation that followed after the levees broke in New Orleans, and the ongoing collective failure by our government (my government!) to respond effectively, brought a mix of anger, shame, embarrassment and grief that, I think, was shared by many Americans.Regardless of what the Court decides tomorrow about the Affordable Care Act, I expect that I---and some minority of American Catholics---will feel some of those same emotions (more muted because Court decisions are themselves more "muted" actions than the flooding of a city), just as I have with many of its recent decisions.

My grief comes from the all-but-certain knowledge that the justices who favor striking down this nation's first attempt at something approaching universal health care will be the some of same justices who think life-without-parole is not "cruel and unusual punishment" for juveniles, or that Arizona should be able to create its own immigration laws, or unlimited corporate campaign spending is protected by the Constitution, or favor imposing unprecedented barriers to collective action by labor unions.* And from the knowledge that all of those justices (Alito, Kennedy, Roberts, Scalia and Thomas) are our Catholic brothers (my Catholic brothers!) in faith.My Catholic brothers may well be right in their interpretation of the Constitution. They may be right as a matter of law and legal philosophy. (They certainly know more about it than I do.) They may be right in how they apply our Catholic faith to their roles as civil justices. They may be better (far better!) Catholics than I.But I was raised in the practice of the faith by people who taught, in word and deed, that to be Catholic was to be on the side of the prisoners, the immigrants, the workers, the poor. Partly (the larger part, at least intellectually) that was because those were the teaching of the Church---starting with the Law and the Prophets, most centrally with the Gospels and Jesus' life and teachings, continuing with all manner of catechisms, conciliar documents, encyclicals and the examples of the saints.Partly (the smaller part, but very powerful on a gut level) it was because those were our people. If we (mercifully) weren't necessarily imprisoned, or new immigrants, or oppressed workers, or impoverished, our ancestors had been one or more of those---and we were not to shame them by forgetting where we came from.So now I look at my brothers on the Supreme Court. They have risen to the highest positions that exist in this country for their chosen profession, their vocation. Some of them have risen from humble beginnings, overcoming every obstacle of racial, religious and ethnic prejudice that stood in their paths.They embody, to some significant degree, great American stories and great Catholic stories---the kind of stories we tell to inspire ourselves and our children in the belief that anything is possible. And yet they keep making decisions (or issuing dissents) that sure look---from my poor vantage point---like betrayals of much of what I was taught growing up Catholic.As I said, this isn't an intellectual argument I'm making. It's an emotional reaction---one that I recognize says more about me than it does about my brothers on the Court. Over the years I've learned (slowly, painfully) that on balance I do better when I acknowledge those emotions then when I don't. In the current moment, I guess the best I can do and hope for, is that we all (me, you and our brothers on the Court) continue praying for each other.*By the way, if you're not already following SCOTUSblog for its great reporting, analysis and opinion writing on all things SCOTUS (Supreme Court Of The United States), I commend it to you.

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"Partly (the smaller part, but very powerful on a gut level) it was because those were our people. If we (mercifully) werent necessarily imprisoned, or new immigrants, or oppressed workers, or impoverished, our ancestors had been one or more of thoseand we were not to shame them by forgetting where we came from."Ah, but that has passed and now assimilation into the great conservative milieu is very important. We have made it and now we have to raise the draw bridge and become more whatever. Religious principles are, after all, a matter of prudential judgment.

Thank you, Luke, for this reflection.We are in a strange era when the Cardinal begins a celebration of religious liberty with the pledge lof allegiance and mixes in patriotic songs and hymns and bendiction? The amalgamation of symbols and the apparent attempt to appropriate patriotism while disparaging the president and process is a strange scene. I wonder if by the election, depending upon what happens tomorow, a number of bishops or their sycophants will cross the line into such partisanship as to make it apparent that the episcopacy is, as Richard Riohr as others piut it, sounding like "the Republican party at prayer." Or in Court.

They are not the first who " Some of them have risen from humble beginnings, overcoming every obstacle of racial, religious and ethnic prejudice that stood in their paths.' We all know the too many who got a taste of the 'best' in country clubs and schools and immediately forgot where they came from.. Every culture has a name for that type.. In Dublin they call them Castle Catholics. What is the Italian expression? we got two on the SC.

"But I was raised in the practice of the faith by people who taught, in word and deed, that to be Catholic was to be on the side of the prisoners, the immigrants, the workers, the poor."Luke--I hate to say this, but I expected more from you than the implicit accusation that those who disagree with you are not on the side of the prisoner, the immigrant

Mark, perhaps Luke's "implicit accusation" is because those who disagree usually express everything but concern for the prisoner, immigrant, etc. Ed, right again.

Luke, it's a very poignant reflection. (And I'm quite pleased that you're posting here).I just think that the role of justices, whether they're Catholic or not, is to dispense justice, and justice itself is a very Catholic value. They aren't utterly free to imagine what justice is - they are constrained by the Constitution, and by the case law that has provided the common interpretation of what the Constitution means. They don't have the ability to just set aside the Constitution in pursuit of a Catholic ideal or any other ideal.I think that we have come to view the justices as gods, as the ultimate arbiters of what can and cannot be, and whose pronouncements we just need to accept. In fact, the people are really supreme. You've named some things in our society that may seem unjust. If the Constitution is preventing us from realizing that vision of justice - we the people have the ability to change it. It's hard work, but it can be done.

For Jim Pauwels and anyone else who's not a lawyer but is interested in the Court's interpretation of the Constitution, let me suggest Noah Feldman's "Scorpions" It tells the story of the court from the days of FDR through the 1954 decision on integrating the schools. This book is well written and accessible. In the course of it one see's the conflicting approaches to interpretation, e.g., strict constriction, legal realism, living constitution, etc. As Feldman shows, it's hard to find any judge, and some of these were great ones, who have rigorously followed some single interpretative course.

"They embody, to some significant degree, great American stories and great Catholic storiesthe kind of stories we tell to inspire ourselves and our children in the belief that anything is possible. And yet they keep making decisions (or issuing dissents) that sure lookfrom my poor vantage pointlike betrayals of much of what I was taught growing up Catholic."Funny, I feel that way about the Kennedys.

@Jeff Landry (6:27, 9:56 pm) I have relatives who agree with you....

"I have relatives who agree with you."Common ground, Luke. To be Barthian about it, a sign of the fact that the Faith stands in judgment of both (and all) political positions.

No WASPS. Goes to show you what happens when you educate the poor.

I don't think anyone here would say that the justices should impose Catholic values (whether lefty or right-wing) on society, Constitution be damned. But make no mistake -- the arch-conservatives on the Court today are activists, not passive interpreters of the Constitution. The Citizens United decision, to take one example, was much broader than it had to be even under a very traditional conservative interpretation of First Amendment constraints on campaign finance reform -- much broader than the petitioners had originally even argued for. And if the justices throw out Obamacare tomorrow, they will be throwing out well-settled Commerce Clause precedent, as I'm sure a dissent will explain in clear and scathing terms. Any principled judge will and should make decisions that he would not have made if s/he had been a legislator. But the four true arch-conservatives on the Court today err on the side of Republican doctrine a little too often to make it plausible that they are simply applying a neutral methodology and not effectively legislating their personal policy views, IMO. (Which is not to say they never depart from conservative orthodoxy. Scalia, for example, has written some significant pro-Fourth Amendment decisions.) Liberals clearly have been activists on the Court, too, but I'll take Brennan's activism over Scalia's any day, because I agree with Luke that siding with the poor and disenfranchised is the more genuinely Catholic (and humane) thing to do. If one is going to be an activist, why be an activist on the part of the entrenched and powerful?

The Constitution was invented by and instituted by WASPS. They can't be all bad.

From a lecture Scalia gave:

"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."

Even though I have at times disagreed with Justice Scalia's opinions, I happen to agree with the position that he articulated in the lecture quoted by George D @06/28/2012 - 8:00 am.The Justices of the U.S. Supreme Court should interpret the relevant laws as they understand them to the best of their ability in each case that comes before the Court, regardless of their religious beliefs.

"the arch-conservatives on the Court today are activists, not passive interpreters of the Constitution."Actually, if by "activist" what you mean is a judge who overturns an act of Congress, the actual evidence shows that the Roberts court has been the LEAST activist courts in recent history, as the New York Times noted: "Since some have asked, here is the direct link to the NYT article. Here is the relevant quote: The Roberts court is finding laws unconstitutional and reversing precedent two measures of activism no more often than earlier courts. The data accompanying the article shows this is an understatement. Specifically, the data show the following: - The Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term. - The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term."As for the claim that "The Citizens United decision, to take one example, was much broader than it had to be even under a very traditional conservative interpretation of First Amendment constraints on campaign finance reform much broader than the petitioners had originally even argued for."- This is a false characterization on several levels. First, the author of the decision - Anthony Kennedy - is hardly an "arch-conservative" by any measure. Secondly, as the transcript of the oral argument and the briefs themselves made clear, constitutional issues WERE raised from the very beginning. Apparently what happened is that Chief Justice Roberts - someone who is often described as an "arch-conservative" - fashioned an opinion finding in favor of Citizens United on narrow, statutory grounds (namely regulation or direct-TV networks was not covered), and it was Kennedy who pushed the Court to rule on the constitutional issue. Finally, the position the Court took on the Constitutional question was argued and briefed by, among others, the ACLU. All that doesn't mean that the decision is right or wrong, but it weakens the argument floating around that Citizens United is (perhaps until today) proves that the Court is in the midst of a far-right-wing power grab.The Supreme Court has - since Marbury - struck down precedent, federal and state laws. Indeed, most opinions that liberals champion today struck down laws and precedent - Roe, for example, invalidated the laws of all 50 states when it was rendered. I don't hear liberals saying that Roe is some invalid, overreach on the part of the unelected judiciary.

To validate my last paragraph - the Supremes just invalidated an act of Congress, the Stolen Valor Act - on First Amendment grounds. It was signed by Pres. Bush. The majority included all 4 liberals, with Roberts and Kennedy.

And Roberts saves the day.(Mr. Toobin, call your office please.)

Jeff --Hmm. I wonder if Roberts is starting to pull a Teddy Roosevelt and move out of the super-conservative corner. Yes, Toobin just said on CNN, "I blew this one". He also said that the most extraordinary thing is that Kennedy wrote an opinion that could have been written by Scalia! If he's finally turning right, then we'd be back where we started.

"I wonder if Roberts is starting to pull a Teddy Roosevelt and move out of the super-conservative corner."Or maybe the "corner" was a wholly contrived notion that never existed from the beginning?

Roberts wasn't conservative? Teddy Roosevelt was conservative?

It would be nice if Ms Olivier would stop pontification about presidents who lived a century ago and apologized for her vicious misrepresentation of fellow bloggers on the gay pride thread.

Ann said: "The Constitution was invented by and instituted by WASPS. They cant be all bad."Don't forget that it took 27 amendments to correct for a lot of their WASPishness.

After reading E.J. Dionne's "Justice Scalia must resign" while I was on vacation, it occurred to me that we Catholics should take the lead in ushering Anton into retirement before he really embarrasses most Italian Americans and Catholics.I noted that above that ed gleason was asking for the Italian equivalent to the Irish, "Castle Catholics." [That's a good one ... I had never heard of it before!] I don't think it is the Italian equivalent, but my grandpa [usually after his morning shot of whiskey] would often say (in his Calabrian dialect): "Even Big Shots also have to take a s _ _ t at least once a day."