Balkinization  

Wednesday, August 03, 2005

Not Catholic Enough?

Mark Graber

Liberals concerned with Judge John Roberts might act on the basis of deeply held Catholic values when deciding whether to overrule Roe v. Wade might consider the virtues of having Judge Roberts act on Catholic values in other areas of the law. The Catholic church, after all, opposes capital punishment, has little good to say about our adventures in Iraq, particularly the torture issue, and is committed to far greater economic redistribution than takes place in the United States. I'm not Catholic (or even Christian), and I gather that there may be a difference in the nature of Catholic opposition to abortion and Catholic opposition to capital punishment. Still, if Judge Roberts took his orders from the Pope, I suspect he might frequently vote differently than he actually does and will.

One interesting question is how both the left and the right would react to a judicial nominee who they believed would overrule Roe, Griswold v. Connection, Lawrence v. Texas, and every decision sustaining capital punishment, as well as provide far greater protection for welfare rights and far stricter judicial supervision of torture than is presently the case. The other point is that Catholocism seems as interpretable as the constitution. Both Roberts and John Kerry and probably sincere Catholics yet they bring very different values to the public sphere (in this light one might note that Frank Murphy and William Brennan, possibly the two most liberal justices of the 20th century were Catholics). Simply saying one is a person of faith, therefore, says no more about one's values that the claim that one will not legislative from the bench. Roberts is not conservative because he is Catholic. Rather, he interprets Catholocism and the constitution in a certain way because he is a conservative. It is those conservative values that need exploring, not his religious faith.

Comments:

Mark,

Thanks for your post.

I'd like to see more judicious use of the term "conservative." Continuing to refer to corporate pimps like Roberts as 'conservatives' gives them a legitimacy and a mainstream acceptability they do not deserve.

I realize that we're talking semantics here, but IMHO it's a big deal. An entire faux-fascist movement is being built under the guise of conservatism.
 

Well, I'd like to see more judicious use of the word "pimp" than we see here.
 

Very insightful Peter. Shouldn't you be smashing windows at a WTO summit or making "No Blood For Oil" posters or something? Believe it or not, even corporations are entitled to representation in court.

As to Mark's post, I can't think of a better example of the left's unifying theory of constitutional interpretation, what I call the "We want the cases decided solely in accordance with our ideology and we're not particularly concerned with how that happens, so long as it happens" Theory.

An overtly religious judge would be a "vitrue[]" to liberals so long as he was helping the court reach the "correct" results, even if he was doing it because of his religion.

If that's not an ends-justifies-the-means argument, then I've never seen one.
 

Mark, with all due respect, it is a mistake to assume that for Judge Roberts to "act on Catholic values" when acting as a judge would mean that he would, or should, reach outcomes that promote or enable policies that align with the social teaching of the Catholic Church. Lots of people are making this assumption, but I really think it's wrong. "Catholic values", in this context, mean reason, transparency, and civility. So, I don't think the invocation of the old chesnut about "taking orders from the Pope" is all that illuminating or fair here. You say that "if Judge Roberts took his orders from the Pope, I suspect he might frequently vote differently than he actually does and will." Actually, I suspect not. I have read nothing by Ratzinger / Pope Benedict to suggest that he is confused about the role of a judge in a constitutional democracy.

Best wishes,

Rick Garnett
 

How clear is it that corporations are entitled to counsel? What would the Founding Fathers have said about this?
 

I guess I need to make points more clearly. My comment was intended not to raise questions about whether Roberts should substitute Catholic values for constitutional values, but simply to note that a) if he did his conclusions would sometimes be liberal as well as conservative, and then b) to suggest that the way people in good faith interpret religious and constitutional scripture seems influenced by deeper vaue commitments.
 

No Mark,

I understood your point. Mine is that liberals would not be appalled at a judge who uses his faith as a basis to reach outcomes in cases, so long as those are the outcomes that liberals desire.

I understand your post was somewhat tongue in cheek, but I think it does reveal an underlying attitude among a lot of liberals that judging/constitutional interpretation should be outcome-oriented.

That was my point.
 

mjh21 makes a fair point that liberals will not be appalled at judges who use, among other factors, their own faith to reach a decision, provided they agree with it. i dare say that the same standard applies to conservatives. it all goes back to a post i made several weeks ago when i said that i never saw anyone who screamed that a decision was an unconscionable exercise of judicial activism when they agreed with the result. to say that this only happens on the liberal side of things (and it does) is to be entirely disingenuous and self-righteous.
 

"Roberts is not conservative because he is Catholic. Rather, he interprets Catholocism and the constitution in a certain way because he is a conservative."

Reminds me of Plato's "Euthyphro." Which does Robert hold to be true?

p is good because it is pleasing to God.
or
p is pleasing to God because it is good.

Religion cannot add any normative content to that attainable through man's own heart. Revelation can merely confirm that which the heart is already telling us.
 

There may well be a much stronger case for accusing conservatives of being unprincipled and result-oriented. Take, for example, conservatives' bend-over-backwards attempts to leave the door open for "Intelligent Design." Today's National Review Online editorial, for example, blames Supreme Court meddling for the controversy and concludes that the Evolution-versus-Intelligent-Design debate ought to be a matter decided by the states. I don't believe for a minute that the bright people over at National Review have a lot of confidence in Intelligent Design. But since those who line up with ID also line up with conservatives in general, National Review isn't about to call ID-niks a bunch of lunatics who ought to leave their zealotry out of high school textbooks.
 

Prof. Graber--

just a small request.

Could you go back and proofread your post? I think it has several errors in it. If I am wrong about the errors, then I have to say I can't understand the syntax, which might also give reason for further proof-reading.

Line 1: "Liberals concerned with Judge John Roberts" I assume that should read "concerned *that* JJR", unless you want to tell us how the *Liberals* "might act".

Second para: "Both Roberts and John Kerry and probably sincere Catholics"

I assume this should read "*are* probably", or this clause has no verb.

"no more about one's values that the claim"

you mean "*than* the claim".

thank you
 

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