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I agree with Sandy that issues involving values that the Catholic Church supports arise often in statutory contexts, which as I said perhaps should receive more attention than they do in nomination debates. But constitutional issues get more attention, in part because they're just better known (not a good reason) and in part for what is a good reason: a statutory ruling is much easier to correct than is a constitutional invalidation of a law, and a statutory ruling still leaves it possible for human values that the Church supports to be pursued through the legislative process.
So I think it plays out as follows: There are several areas of great concern to traditional Catholics, and even in some cases Catholic progressives, in which liberal justices are likely (or much more likely) to vote that the human values that the Church emphasizes cannot be pursued through the legislative process. These include protection of unborn life, parental choice in education, the preferred status of traditional opposite-sex marriage, opposition to euthanasia, and the general question whether "moral disapproval" of some conduct is a permissible basis for legislation. By contrast, on those areas where the thrust of Catholic teaching is for values that we'd call "liberal" in today's politics, the "conservative" justices might not vote in a way that promotes those values, but they very seldom would vote to bar those values from being legislated. Scalia and Thomas will vote to uphold the death penalty, but they also certainly let Catholics and others push to eliminate it through legislation. They might vote against vigorous readings of civil-rights statutes, but this still leaves it open to Congress to expand the statutes (as it has sometimes done after conservative Court opinions). The fact that one could see these values as having constitutional overtones, in Michelman-like fashion, does not change the fact that the issues are statutory and therefore the cost of wrong decisions is less severe than with wrong constitutional-invalidity rulings.
There are a few exceptions to this. The thrust of the Catholic bishops' teaching on race relations is pro affirmative action, and the more conservative justices would vote to bar it constitutionally (based on, I'd add -- and I know Sandy agrees with this -- the same kind of free-floating moral analysis that they commonly condemn in liberals). And the 11th Amendment jurisprudence is another area where conservative rulings not only don't mandate protection of civil rights, but actually constitutionally bar it (again on the basis of a strained interpretation). But these particular questions -- state damages liability for civil rights violations, affirmative action programs as such -- do not have anywhere near the prominence or fundamental status in Catholic social teaching that the basic issues of abortion or euthanasia do. (Race relations and civil rights are pretty fundamental, but those particular applications aren’t.)
If the conservatives on the Court were to major attacks on congressional regulatory power over the workplace or the environment by shrinking the Commerce Clause, then the tradeoff might get tougher for many who tried to follow all Catholic values. But to date, the Court has mounted such an attack: and the awful Justice Scalia cast a key vote to blunt it n Raich, the medical-marijuana decision. (Maybe a "national security" Court that constitutionally immunized unlimited executive detentions or coercion by the administration would raise similar issues.)
My point is not to defend whatever mix of constitutional and political policies traditional Catholics choose to support, only to show that currently, for a significant range of such packages of policies, they have quite colorable reasons to be more leery of "liberal" justices than of "conservatives."
This argument depends a lot on a distinction between blocking a policy constitutionally and refusing to mandate it constitutionally or by statute. One might claim that this distinction is overrated. But I know that Sandy (like Mark Tushnet) is among the liberals who, after Bush v. Gore, the 11th Amendment cases, etc., have articulated a principled leeriness about judicial power.
Tom Berg University of St. Thomas (Minnesota)
----------------------- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: [EMAIL PROTECTED] -------------------------------------------------------
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Tom Berg writes in his very interesting post:
Moreover, although there are plenty of political issues on which official Catholic teaching tends to lean more to the left than to the right -- for example, active government involvement in poverty and welfare programs -- many of these are not constitutional issues that are really "in play."
Tom is certainly right if "in play" means the active consideration of Frank Michelman's "Protecting the Poor Through the 14th Amendment." But, of course, these issues are "in play" in lots and lots of statutory interpretation, and one can and should interpret statutes against notions of background constitutional values. Even if one believes that the courts should not be in the affirmative rights game for institutional reasons, that does not entail that congressional statutes shouldn't be generously construed with regard to protecting the poor.
sandy |
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