If the newly nominated Judge Samuel Alito is confirmed, the US Supreme Court will have “five out of nine” justices who are Catholics — Alito, Scalia, Thomas, Kennedy, and Roberts. What does that say about the state of things?
Well, in one sense it says something we all already know. Socially and politically, Catholics have “arrived.” It isn’t simply, as it was in John Kennedy’s day, that a Catholic could get elected President of the United States. Catholics can actually be in the majority at the highest levels of what is perhaps America’s most powerful branch of government.
But what kind of Catholicism do the Catholics on the Supreme Court exemplify? We can’t be sure. And that’s part of the problem.
By that I don’t mean that a Catholic justice’s position on any or most cases likely to come before the court should be predictable. Not at all. We can suppose that on a number of issues two or more well-informed and well-formed Catholic justices might differently interpret and apply the Constitution. In theory, the Supreme Court decides cases, not issues. And cases often involve fact patterns about which reasonable and thoroughly Catholic judges may differ in judging the law's relevance to them.
Nevertheless, we should also be able to suppose that on the major issues — issues touching literally on matters of life and death or on the nature of marriage — a Catholic justice’s position should be fairly easy to guess, at least when it comes to his general principles.
SCOTUS veteran Catholics Scalia, Thomas, and Kennedy have made their judicial philosophies clear enough. Those of Scalia and Thomas, if not mandated by a Catholic worldview, are at least generally in sync with it, although some Natural Law folks will quibble with this or that element of Scalia and Thomas’s approaches. Reagan nominee Justice Kennedy’s decisions are all over the map — often contrary to Catholic teaching, to be sure, but even contrary to sound constitutionalism. Of course, it’s too soon to say where the newly confirmed Chief Justice Roberts will come down. And no one knows about Alito, should he be confirmed.
The point is, we should all know where anyone identifying himself with the Catholic Church stands on basic issues. There is no judicial philosophy worthy of a Catholic jurist that would allow any reasonable person a moment’s hesitation regarding where, as a justice on the Supreme Court, a Catholic jurist would generally stand on the Constitution and such matters as, say, the right to life for unborn children or the nature of marriage.
If clarity would make it harder for Catholics to be confirmed as Supreme Court justices by even supposedly Catholic senators, that’s a pity. But better to be rejected for being a genuine Catholic than to be confirmed as an ersatz one. Blessed is he who is persecuted for righteousness' sake.
How many justices does it take to render a decision of the Supreme Court? Five out of nine, as your high school civics teacher insisted. But how many Catholics does it take? And what kind of decision will they render? Right now, no one but God knows.
Mark Brumley is President of Ignatius Press and Vice President of Campion College of San Francisco. He lectures widely on apologetics and other theological subjects. He is author of 3mil.net .
