I wrote some guest posts for CLR Forum on "the Catholic issue" a couple of years ago. They were based on a draft paper I have been kicking around for too long. Perhaps there is no time like the present to finish that paper up. In the meantime, my old posts are available at http://clrforum.org/author/kevincwalsh/. For some sense of the problems I sought to address in the paper, I've pasted in below the opening paragraphs from the introduction to the most recent version. The paper looks at Justices' votes in cases in which the United States Conference of Catholic Bishops filed an amicus curiae brief (whether alone or with other groups).
Some interesting tidbits: There was only one justice on the Rehnquist Court with a record of complete outcome agreement with the Bishops' Conference -- Byron White (appointed by President Kennedy in part because he was not a Catholic). And although I have not updated the statistics for the past three terms yet, I believe that there is only one Justice on the current Court with a similar record -- John Roberts. Catholic Justices Scalia, Kennedy, Thomas, Alito, and Sotomayor have all voted against outcomes supported by the Bishops' Conference as amicus curiae. Among recent cases, see Arizona v. United States, in which the USCCB argued that Arizona's law was completely preempted, and United States v. Windsor, in which the USCCB defended the constitutionality of DOMA. If anyone is interested in offering critical comments on my paper after I update it to account for recent Terms and before I post it to SSRN, just email me off-list. Kevin ---- Catholics have commanded a majority on the Supreme Court since early 2006 when Justice Alito joined the Court as its fifth sitting Catholic Justice. And the Catholic ranks swelled to a supermajority in August 2009 when Justice Sotomayor joined the Court. These developments have resulted in plenty of commentary over the past several years linking the religious identity of the Catholic Justices with their votes and opinions. This commentary will continue as long as there are enough Catholics on the Court to make a difference in how cases turn out. There are three problems with much of this commentary. First, it pops up—and will continue to pop up—in the same way that the Supreme Court decides cases: one case at a time. As a result, commentary on Catholic Justices voting for the outcome supported by the Catholics bishops in an abortion case, for example, is not linked to commentary on Catholic Justices voting against the outcome supported by the Catholic bishops in a death penalty case. And, predictably, the commentary on Catholic Justices voting for the outcome supported by the Catholic bishops in the HHS Mandate cases will not be linked to commentary on Catholic justices voting against the outcome supported by the Catholic bishops in deciding on a constitutional right to same-sex marriage. Second, there is a curious asymmetry in causal attributions. It is not deemed news- or noteworthy that Catholic Justices sometimes vote against outcomes advocated by Catholic bishops. And yet commentators somehow think it plausible to assert that when these Justices vote for an outcome supported by the Catholic bishops, they do so because they are Catholics. For example, if Justice Kennedy votes to uphold a ban on partial-birth abortion, he does so because he is a Catholic; but if he votes to find a constitutional right to same-sex marriage, he does so despite being a Catholic. This asymmetry was on display recently when some commentary attributed Justice Sotomayor’s entry of an injunction to protect the Little Sisters of the Poor from the contraceptives mandate to her Catholic background, while coverage of her dissent from the Wheaton College injunction regarding the same mandate focused on her gender rather than her religious background. Third, this commentary tends to ignore the legal and ideological coherence of the particular Justices’ votes considered apart from their identity as Catholics. Justice Scalia’s votes in abortion and death-penalty cases are explained by similar jurisprudential commitments that align him with the Bishops’ Conference’s position in one set of cases and against their position in the other. The same may be said of Justice Kennedy’s votes in death-penalty and same-sex marriage cases, to pick another example. Academic attitudinalists, who view Justices’ votes as a function of the Justices’ attitudes, attribute little significance to religion as an ideological variable. Yet armchair attitudinalists in the commentariat nevertheless insist on ecclesial affiliation as explanatory. ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu] Sent: Friday, July 11, 2014 3:34 PM To: Levinson, Sanford V; Law & Religion issues for Law Academics Cc: CONLAWPROF Subject: RE: Is Discussion of Justices' Religion "Off Limits"? Agreeing with Sandy, I would just add that none (I believe) have even been in a courtroom prosecuting an ordinary person. Have any been involved in a plea bargain? interviewed a witness in a holding cell? or a police station? Except Ginsberg have have they dealt the day-to-day legal issues that most Americans face? ************************************************* Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com> ************************************************* ________________________________ From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Friday, July 11, 2014 3:02 PM To: Law & Religion issues for Law Academics Cc: CONLAWPROF Subject: Re: Is Discussion of Justices' Religion "Off Limits"? Paul is correct on all counts. I'd be even stronger in emphasizing that none of the current justices has ever seen the inside of a courtroom while representing an " ordinary" criminal defendant. Presidents disproportionately appoint prosecutors and disdain defense lawyers. To engage in zealous representation of a non-white-collar defendant can put a serious crimp in one's hope to be appointed to the federal judiciary. Sandy Sent from my iPhone On Jul 11, 2014, at 1:33 PM, "Finkelman, Paul" <paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>> wrote: Religion is not the only aspect of the Justices that should be considered. I would argue that this Court is dramatically odd in many ways. Except for Thomas all of the Justices come from the northeast or California (or in Breyer's case both). There is no one from the midwest (although Roberts lived there a bit); One southerner (Thomas) even though the South has more than twice the population of the Northeast. There no Protestants even though they are the plurality of the nation. Moreover, I am pretty sure that no one on this court has ever run for office or held any elective office. I do not believe any have actually been involved in electoral politics at all. None (I believe) ever attended a public university of college; they are all graduates of private elite northeastern ivy league law schools. There is nothing wrong with those schools, but it has created a court that is in-bred. The justices are elite not only in education but in their distance from the average American (Ginsberg is the major exception, Sotomayor a bit) in their careers and professional backgrounds. There is no one like Warren or Black who dealt with law and the individual level as a local prosecutor or judge. No one like Powell or Blackmun who had local clients and were involved in business. No one like White who did something before law school. None have even served on a state court or been involved in state law. Historically the Court was "representative" body even if the justices were not elected. Today that is no longer the case. This is not ideological, but more about a culture that has separated the Court from the nation and its people in rather profound ways The position of the Court in Town of Greece illustrates this disconnect. Clearly, no one in the majority has ever represented someone before a city council, town council, or local government board. ************************************************* Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com> ************************************************* ________________________________ From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>] on behalf of Richard Friedman [rdfrd...@umich.edu<mailto:rdfrd...@umich.edu>] Sent: Friday, July 11, 2014 1:52 PM To: Law & Religion issues for Law Academics Cc: CONLAWPROF Subject: Re: Is Discussion of Justices' Religion "Off Limits"? Well, one thing that might follow is a discussion of the extent to which we want the Supreme Court to be demographically representative of the nation. In the early years of the Republic, there was a clear understanding that it would be geographically representative -- one member from each Circuit. That eventually washed away, as geography became less salient. There are clearly some other demographic expectations now, concerning gender and ethnicity. I suppose the biggest group not represented on the Court now is Protestants. I'm not advocating religion being a criterion for selection, but I do think that's an interesting issue. Rich Friedman On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: If I might be so presumptuous as to shift the question somewhat: Of course Justices' religion, and their experiences and learnings as adherents of particular religions, affects their perspectives when they decide cases, especially (but not limited to) cases involving religion (e.g., Town of Greece; Hobby Lobby). If a religion had no such effect on its adherents, it would hardly be worthy of the name, right? So I don't think discussions of this question are or should be "off limits," yet I wonder . . . to what end? If we were all to agree that the Catholic and Jewish Justices on the Court have very different perspectives on these questions, in part (but not entirely) owing to their experiences and understandings as Catholics and Jews, what, exactly, follows from that? On Fri, Jul 11, 2014 at 1:17 PM, John Bickers <bicker...@nku.edu<mailto:bicker...@nku.edu>> wrote: When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not limited to Christianity but is simply the default memorial because it is "the most common symbol" of the dead, how can it not be the case that the justices' life experiences--jobs, schools, politics, faith--are playing a role in how they decide cases? John Bickers Salmon P. Chase College of Law Northern Kentucky University ________________________________ From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>] on behalf of Myron Moskovitz [mmoskov...@ggu.edu<mailto:mmoskov...@ggu.edu>] Sent: Friday, July 11, 2014 1:04 PM To: CONLAWPROF Subject: Is Discussion of Justices' Religion "Off Limits"? .... I replied that a judge's life experiences form at least part of his or her approach to resolving cases, and it is naïve to ignore this. Some Justices expressly pepper their opinions and speeches and books with this fact. Thomas does, Sotomayer does, and so do many others. A Justice of a minority religion (whether Judaism, Muslim, Hinduism, or any other) might have had life experiences that make him or her more likely to identify with citizens faced with government-sponsored explicitly-Christian prayers. Tribe apparently believes that such a discussion is "off limits." I don't. Who is right? Myron Myron Moskovitz Professor of Law Emeritus Golden Gate University School of Law Phone: (510) 384-0354<tel:%28510%29%20384-0354>; e-mail: myronmoskov...@gmail.com<mailto:myronmoskov...@gmail.com> website: myronmoskovitz.com<http://www.myronmoskovitz.com/> _______________________________________________ To post, send message to conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
