During some of our discussions, we have touched indirectly on what sort of impact our respective beliefs will have in other areas of society. Now, in having recognized the current and historical number of Catholics on the United States Supreme Court (6 of 9), we thought it would a worthwhile endeavor to explore how the Catholic tradition provides a framework for judicial decision-making. Given our respective shortcomings on general legal scholarship, we have decided to have our discussion grounded by the insights of Sheldon Goldman in the article The Politics of Appointing Catholics to the Federal Courts. As our resident Catholic, Dr. Luke Murray will provide his reflections on both the article and the general question being raised.

A reflection by Dr. Luke Murray

With the appointment of Neil Gorsuch to the Supreme Court in 2017,  6 of 9 current Justices on the court are Roman Catholics (Gorsuch was raised Catholic but also attends an Episcopal Church).  This is striking and leads to the question of whether this is simply a coincidence or if there is something about Catholicism that has contributed to two-thirds of the court being Catholic.  One article that addressed this issue directly was Sheldon Goldman’s article “The Politics of Appointing Catholics of the Federal Courts” in 2006.  In the work, Goldman used three concepts to explain a president’s nomination to the supreme court: a “policy agenda” (the substantive policy goals of an administration driving his nomination), a “partisan agenda” (the use of presidential power to achieve political results for the president/ party by rewarding a group of supporters), and a “personal agenda” (when a president appoints a personal friend or close associate). Using these concepts, Goldman gave a long history of Catholics being appointed to the Supreme and lower courts, showing how the percentage of Catholics has changed throughout the years. Three of the more helpful observations of Goldman was that the percentage of Catholics appointed slowly grew, from the 18th to 20th century, as anti-Catholic bias waned;  that politicians generally courted Catholics as large immigrant populations in the early 20th centuries (predominantly by Democrats), and then later in the century to those favoring more traditional or conservative policies (usually Republican presidents); and finally, Goldman credits the change as coming from the breakdown of the traditional party machine and the transition to “issue-oriented party organizations” that were guided by policy-oriented activities, especially after the legalization of abortion and the rise of the “culture wars.”

Now I am not a legal scholar, but as a Catholic theologian, I wanted to share few thoughts about the article. First, as Goldman admits, attempting to surmise the reason or motivation behind a nomination is elusive and subjective, to say the least. Furthermore, his three categories eliminate any discussion of the quality of education, philosophy, or training of judges, effectively eliminating any substantial influence Catholicism might have on the quality of potential nominees. With only arbitrary ideologies as the ‘real reasons’ for a nomination and without any discussion of the nature and purpose of a federal judge, the article at first seems a bit hollow.

To be fair, Goldman does admit he is limiting his scope. However, it was disappointing for him to ignore any discussion of Catholic theology. He chooses to ignore how Catholics can be found on both sides of the policial isle, supporting key positions of both Democrats and Republicans, or why it is primarily only  Republican presidents in the recent past who have appointed Catholic nominees. importance of philosophical studies, traits, perhaps, that could contribute to a higher percentage of Catholic judges reaching the pinnacle of their profession.

Finally, as a Catholic academic, I believe that Catholicism does provide the framework and tools to contribute positively to the formation of a federal judge. While a thorough discussion is not possible here, I would only say that a judge raised in the Catholic tradition should have a greater confidence in the power of reason, an awareness of the natural law and its reliance on eternal law, a greater respect for legitimate authority, and a deeper awareness of the dignity and rights due to human persons as created in the image and likeness of God.

A reflection by David Tamez

As a naturalist who does not believe in any sort of deity, the question posed above is interesting in a number of ways. The article written by Sheldon Goldman addresses the historical development of previous administrations SCOTUS nominations, his insights appear to suggest that judges were not chosen on the basis of their religious affiliation - especially not of recent nominees. Rather, judges were chosen depending on how well they mapped on to the President’s partisan or policy initiatives. But, our question here is: what about the Catholic tradition and its culture yields so many successful nominees to the Supreme Court bench? The current list of candidates to replace Justice Kennedy (also a Catholic) is topped by two judges that are practicing Catholics. Now, three of the most recent Catholics (Scalia, Gorsuch, and Thomas) are also textual originalists. Textual originalism, not to be confused with original intent originalism, is an interpretive framework that relies heavily on established legal dogma and tradition. Originalism of Scalia’s and Thomas’ kind has been criticized for being suspiciously consistent with conservative ideology. Scalia nor Thomas might be able to point out that judicial conservatism ought to be championed given the court's established history of judicial activism. If its conservative, it is only because previous courts have interpreted the constitution so liberally as to have served more as a supreme legislature than as a supreme judiciary. Any ideology that seeks to scale back such activities is going to inevitably appear conservative. 

But, as to the question at hand, it can be argued that much of Catholicism is defined (to some extent) by an adherence to a certain set of dogmatic claims and to an apostolic tradition. With all this being said, it should be noted that not all the Catholics (or formerly Catholic in Justice Gorsuch’s case) agree all the time. The other Catholics currently on the bench are Justices Sonia Sotomayor, Anthony Kennedy, Samuel Alito and John Roberts, tend to also disagree with each other a great deal - most recently in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. What might be concerning for most reading the article, is that policy concerns factored greatly in an administration's judicial choice. Ideally, virtues such as fairness, objectivity, and consistency are sought for in a particular judge. Unfortunately, these virtues cannot be interpreted without utilizing ideology to some degree. This is to say that a conservative judge might have a different idea of fairness than a more liberal-leaning judge. All this is to ask: what brings about judicial disagreements amongst justices who identify as Catholic or as formerly Catholic? This is also part of a much more general debate for general legal disagreement. Why do judges disagree about what the text means? What could be behind this disagreement? One possible answer is a judge’s particular view of political justice and rationality. So, although this doesn’t appear to be too concerning, it also isn’t quite the same as “calling balls and strikes as I see ‘em.” If anything, it is more like calling balls and strikes based on what I consider a rational framework for determining balls and strikes.

A naturalist (whether atheist or not) judge may be more inclined to employ a sort of legal pragmatism when deciding on a particular interpretation. Given naturalism’s general emphasis on what can be empirically verified, pragmatism provides a solid framework to take empirical data and apply it to the possible consequences of a given judicial decision. Further, legal dogmas emphasized by originalists will be given less weight (but not totally insignificant) if their employment entails consequences that might prove significantly detrimental to a certain social group or institution or to society in general. While this might appear to be an appealing judicial philosophy or approach, pragmatists are not particularly popular in getting nominated to Appellate or Supreme Court positions given the perception that they give little no weight to established legal dogma and therefore, are unpredictable - another desired virtue of judicial decision-making. There is one sitting  justice that identifies as a pragmatist - Justice Breyer, and a well-known Appellate Court justice in Richard A. Posner (the “father” of judicial pragmatism).