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Pondering a `Catholic majority' on high court -- would it matter?

By Gerald F. Uelmen, professor of law at SCU
The San Jose Mercury News
Nov. 6, 2005

With the nomination of Judge Samuel F. Alito, it is entirely possible that the U.S. Supreme Court will include a majority of five Roman Catholic justices: Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Alito.

For the better part of a century, there was traditionally one ``Catholic seat'' on the court, along with one ``Jewish seat.'' Rarely have two justices shared the same religious faith, much less a majority of the court.

It is fair to ask whether this lack of religious diversity is likely to make a difference in how cases are decided.

In nominating Chief Justice Roberts, the White House insisted his religion was irrelevant. In nominating Harriet Miers, the White House suggested her religion should reassure evangelical Christians that she would pursue a conservative agenda. The nomination of Judge Alito injects a religious question into the process that cannot be avoided: is the court likely to pursue a ``Catholic'' agenda?

The Catholic Church has adopted a strong moral stance opposing both abortion and the death penalty. Are Catholic justices likely to reflect the moral position of their church on these hot-button issues?

The answer appears to be no. Catholic justices have appeared on both sides of the most contentious cases presenting these issues to the court. In Planned Parenthood vs. Casey, the 1992 challenge to Pennsylvania's restrictive abortion law, the Supreme Court majority which reaffirmed Roe vs. Wade to strike down the law included Justice Kennedy, while the dissenters included Justice Scalia.

The Casey majority upheld a 3rd Circuit opinion from which Judge Alito had dissented. In Roper vs. Simmons, the 2005 case in which the court held that the Eighth Amendment prohibition of cruel and unusual punishment precluded the imposition of the death penalty where the defendant was under the age of 18 at the time the crime was committed, Justice Kennedy wrote the majority opinion, while Justices Scalia and Thomas dissented.

Justice Kennedy also joined the majority striking down the death penalty for defendants who are mentally retarded in Atkins vs. Virginia, while Justices Scalia and Thomas dissented. In that case, Justice Scalia went out of his way to heap scathing disdain upon the position of the U.S. Catholic Conference of Bishops, opposing the execution of the mentally retarded:

``The attitudes of that body regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national (and entirely ecumenical) criticism.''

In a remarkably candid presentation to a Pew Forum on Religion and the Death Penalty in 2002, Justice Scalia described his ability to ``compartmentalize'' his religious views, and separate them from his judicial task:

``I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws, which is what my job is about. I read texts. I'm always reading a text and trying to give it the fairest interpretation possible. That's all I do. How can my religious views have anything to do with that?''

Unquestionably, justices differ widely on what the fairest interpretation of the Constitution or of a statute might be in a given case, but those differences have little to do with differences in religious affiliation. They have a lot to do with differences in life experiences and social attitudes, however.

Thus, the relevant question is whether Roman Catholics are likely to bring such similar life experiences and social attitudes to the court that the traditional diversity of backgrounds will be undermined.

Again, the answer appears to be no. The American Catholic Church is itself such a diverse body that very few assumptions should be made based merely on Catholic upbringing. Current polls indicate, for example, that American Catholics are evenly split on the appropriateness of the death penalty, despite strong papal opposition. And 84 percent of American Catholics reject the church's teaching on birth control.

There is every indication that Judge Alito is most likely to align himself with Justices Scalia and Thomas, however, on issues like abortion and the death penalty. His dissent in Planned Parenthood vs. Casey endeared him to the religious right, and had much to do with catapulting him to the front ranks of the White House short list.

While he has occasionally reversed death sentences, he was recently himself reversed in a death-penalty case by a 5-4 vote in which Justice Sandra Day O'Connor cast the deciding vote. Justices Scalia and Thomas were in the dissent in Rompila vs. Beard, in which the court concluded the defendant was deprived of competent assistance of counsel at his death-penalty trial. If Judge Alito had been on the court instead of Justice O'Connor, the case would have come out the other way.

Judge Alito's attitude toward precedents like Roe vs. Wade, Roper vs. Simmons, and Atkins vs. Virginia are clearly relevant considerations for the Senate to take into account in deciding whether he should be confirmed to a seat on the United States Supreme Court. His affiliation with the Catholic Church, however, is irrelevant. The White House had it right the first time.

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