Public Catholicism

THE Church, Judge Roberts & The Common Good

Catholics are everywhere. John Roberts is likely to become the first Catholic Chief Justice of the Supreme Court since the Civil War, bringing the Court’s denominational lineup to four Catholics, two Protestants, two Jews, and a vacancy. The president’s team to win endorsement of the Roberts nomination is headed by Ed Gillespie, Catholic-vote hunter for the GOP in the last election, and enthusiastic Senate backers include a self-identified pillar of Catholic orthodoxy, Pennsylvania Senator Rick Santorum. When the fight gets going, we will see daily comments by Democratic Senators Kerry and Kennedy, Leahy, Biden, and Durbin, Catholics all. A few years ago a candidate’s religion would most likely not have come up in the confirmation process. Now we wonder what form “Catholic questions” will take.

Last year, in debate about the confirmation of a conservative Catholic for the Court of Appeals, Republican Senators accused Richard Durbin (Ill.) and Patrick Leahy (Vt.) of being anti-Catholic when they questioned the nominee’s views on abortion. When Durbin in an early interview asked Roberts a question about their shared faith, another firestorm broke out. The intensity arises from the last election cycle, when the Vatican and some media-savvy bishops made the question of abortion a “litmus test” for Catholics in public life. Some bishops even threatened to withhold Communion from Catholic politicians who did not toe the line. A few even made that threat against presidential nominee John Kerry, fueling the unprecedented efforts of Republican strategists and conservative Catholic activists to win the votes of faithful Catholics. In November a crucial 5 percent of Catholic voters moved into the GOP column. Excited by their success, Karl Rove and his Catholic collaborators can hardly wait for a prochoice challenge to their impressive prolife nominee, John Roberts.

If some bishops don’t like this, they have no one to blame but themselves. While the church speaks out regularly on many important issues, it is unequivocal opposition to abortion that Rome and its favorite American bishops have chosen to define American Catholic political integrity, and no one in authority has challenged them. Moderates try to broaden the Catholic agenda, but they almost always assign priority to the so-called life issues. This was clear when, well before the Roberts nomination, the president of the United States Conference of Catholic Bishops, Bishop William S. Skylstad, asked President George W. Bush to consider nominees for the Court who “are cognizant of the rights of minorities, immigrants, and those in need, respect the role of religion and of religious institutions and the protections afforded by the First Amendment, recognize the value of parental choice in education, and favor restraining and ending the use of the death penalty.” But beyond these broad concerns, Skylstad urged selection of “qualified jurists who, pre-eminently, support the protection of human life from conception to natural death, especially of those who are unborn, disabled, or terminally ill.”

With Roberts now proposed for chief justice, moderate bishops will stress Skylstad’s wide list of concerns but, as in 2004, they may be brushed aside by the new breed of conservative bishops and Catholic politicians playing for high stakes. Commentators will find Skylstad’s official statement boring, moderate bishops will not return reporters’ phone calls, and the press will search out the same cast of characters who shaped Catholic politics last year. As a result, many Catholics will ask whether the bishops will apply the same “all or out” standard to Judge Roberts that they applied to Kerry or, more disgracefully, to longtime Congressman David Obey (D-Wis.), a thoughtful critic of abortion who failed to support the whole prolife agenda.

The church has its own politics, less obvious than the GOP strategy of building a Catholic-Evangelical religious coalition. Months ago our Worcester-area pastors asked us to sign postcards warning our Massachusetts senators not to make support for Roe v. Wade a “litmus test” for selection of a new Supreme Court justice. Instead our senators should apply the other “litmus test” of opposition to Roe. As a strategy for ending, or even reducing, abortion, such cards, used across the country, have even less to recommend them than threats to deny Communion. But these high visibility campaigns are primarily exercises in internal church politics. Saying no to abortion, embryonic stem-cell research, gay marriage, and other “non-negotiable” issues—war, torture, or our nuclear addiction are not included—is a way for Catholics to stand up for life amid what the bishops, echoing Pope John Paul II, call the “culture of death.” Many Catholics are persuaded that prolife and promarriage campaigns will help their church recover its integrity, badly damaged not only by incompetent leadership but by the allegedly spineless accommodation of politicians and most parishioners to the supposed individualism, hedonism, and permissiveness of our American society.

Riding this wave of Catholic assertion is a new generation of John Paul II bishops. They are not in the mold of the late Cardinal Joseph Bernardin, who helped the U.S. church offer modest but influential moral commentaries on American nuclear strategy and economic policy in the 1980s. Now some Catholic leaders argue that Bernardin’s multi-issue “consistent ethic of life,” his high-level consultations with his fellow Catholics, and his dialogue with political leaders across the ideological spectrum helped get the American church into its present difficulties. Bernardin’s open approach supposedly made the church appear uncertain. Far better the militant righteousness of those bishops who make the so-called life issues the test of Catholic integrity, whatever the cost. If the results of that strategy are harmful, or if many people seem not to listen, that is just further evidence of how bad Americans have become.

It does not have to be this way. The nomination of a genuine, intelligent, responsible conservative like John Roberts can occasion an important national conversation about abortion, privacy, the family, and about the role of government in overseeing the economy, regulating corporate behavior, and protecting civil rights and liberties. On all these issues Catholic social teaching and pastoral experience could be helpful. And on each there are important questions about Judge Roberts’s record and his judicial philosophy. Will a Chief Justice Roberts join “originalist” justices such as Clarence Thomas, committed to eighteenth-century ideas about government and liberty? Some early reports associated Roberts with the Federalist Society and its hankering to return to pre–New Deal restrictions on federal powers. That position is at odds with important elements of Catholic social teaching. Even on abortion Roberts may surprise some of his conservative backers. Moderates hope Roberts will follow retiring Justice Sandra Day O’Connor and Justice Anthony Kennedy in taking things case by case and refusing to get caught in ideological or moral pigeonholes. But Kennedy got blasted by Catholic conservatives when his convictions about “settled law” overrode his personal opposition to abortion. Roberts has used that phrase, and perhaps he shares his wife’s commitment to both human life and the moral agency of women reflected in the group Feminists for Life, in which she has been active. If so, Roberts could be in trouble with the church. But he could also inspire Catholics to speak up and consequently spark a more useful and intelligent dialogue, in and out of the church, than we have seen in the past few years. That would be a great public good.

A useful public conversation is likely, however, only if moderate and liberal Catholics recover a sense of genuine shared responsibility for our common public life. If, as in 2004, the only Catholic voices we hear during and following the Roberts hearings are lock-step bishops and their supposedly orthodox supporters attacking Roe, ignoring questions of governmental responsibility for the public interest and for economic and social justice, and mouthing platitudes about the family and sexual morality, then the strategic alliance of conservative Catholics and conservative Evangelicals may emerge stronger than ever. But Catholics are not bound to follow their bishops’ dictates on judicial choices mindlessly, any more than they are required to support Dr. James Dobson and his wing of Evangelical Christians. In fact, if a nominee is prolife but supports a judicial philosophy likely to produce results at odds with Catholic teachings on human rights, social justice, or the common good, that nominee should not receive Catholic support.

The American public is composed of many smaller publics. The church, like all communities of faith in a pluralist democracy, is required to help form a public moral consensus on the basis of which we can make the decisions we need to make as a people. That sharing of responsibility for the common life is an educational and pastoral task of enormous significance. At times the community may fail; dialogue and compromise may threaten basic values. Then, for its own integrity, the church must register its dissent and its members may have to seek exemptions or engage in civil disobedience. Integrity is a matter of commitment, not a posture without cost. So at times community leaders must take bold stands, but at other times they may have to work to dampen passions and ease divisions, even if it requires temporary accommodation to morally ambiguous situations. To carry out these responsibilities each community, and each citizen, must develop qualities of faith, moral seriousness, and political intelligence. The Catholic community, with its own diverse constituencies ranging from immigrant outsiders to establishment insiders, has the potential to enrich our public debates greatly. If the church fails to do so in this crucial moment in our political history, it will not be the fault of an American “culture of death,” but the result of the decisions bishops and all Catholics make. A lot rides on those decisions.

Published in the 2005-09-23 issue: 

David O'Brien is University Professor of Faith and Culture at the University of Dayton.

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