We've had some discussions of this over at the Catholic lawprofs' weblog http://www.mirrorofjustice.com <http://www.mirrorofjustice.com> , if anyone is interested. I would suggest that this development -- five conservative Catholics on the Court, generally supported by evangelical Protestants -- is no mystery at all once one recognizes what many scholars of religion have noted: that more and more, the major religious divide in America is between "traditionalists" and "progressives" and cuts across the once-crucial denominational differences such as Protestant-Catholic. (At least, that's true for American Christianity in its relationship to public affairs, which is what we're discussing.) Protestant and Catholic conservatives have united to a large extent in opposition to abortion, widened protection or acceptance of homosexuality in the law, stricter separation of church and state, and so forth. At the least, they agree with each other that the federal courts should not mandate these things, and (as Mark suggested) that popularly elected bodies should be able to go the other way based on traditional moral positions. As a result of this realignment, conservative Protestants will have plenty of reasons to support nominations of conservative Catholics (or to be precise, of Catholic nominees who will let these conservative/traditional moral values be enacted by legislatures). There are certainly a lot of liberal Catholics who could have been nominated in recent years, and who would have been welcomed by liberal Protestants. But Democratic presidents haven't had many chances -- not nearly as many as Republicans -- to nominate justices since the 1970s. And before the 1970s, the Protestant-Catholic divide that Professor Newsom emphasizes was still central. (It's just not the major divide now.) 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." Only if the Republicans nominated someone who, like Justice Thomas, is committed to rolling back the welfare state in a big way (by limiting the Commerce Power, etc.) would those constitutional issues take on the prominence that abortion, gay rights, and state-religion relations have had. Janice Rogers Brown might have been such a nominee, but Alito (like most other potential Republican nominees) seems likely to be more cautious on those issues. However, there are still a number of issues on which the American Catholic bishops, at least, indicate concern with positions that a "conservative" justice would be likely to take. The chair of the bishops' conference wrote a letter to President Bush in July 2005 asking him to consider, in addition to pro-life justices, those "who are also cognizant of the rights of minorities, immigrants, and those in need; respect the role of religion and of religious institutions in our society and the protections afforded them by the First Amendment; recognize the value of parental choice in education; and favor restraining and ending the use of the death penalty." See http://www.usccb.org/comm/archives/2005/05-155.shtml. <http://www.usccb.org/comm/archives/2005/05-155.shtml> Some of these questions arise mostly in statutory contexts and as a result don't get the attention in SCT nomination battles that perhaps they should. Tom Berg, University of St. Thomas School of Law (Minnesota)
_____ From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Wed 11/2/2005 1:24 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FYI: An Interesting "See You at the Pole" Case I will defer to others on whether the judicial philosophies of the four (soon probably to be five) Roman Catholics on the Court are more consistent with official Catholic teaching on justice than are the views of Senator Kennedy. I'd think that preservation of the right of society to make law based on natural law principles and on moral principles would be very consistent with Catholic teaching. It seems to me that the Catholic members of the Court are much more likely to believe that the Constitution preserves such a right than are the non-Catholic members of the Court. Michael's post reproduces my earlier post in which I suggested that overt anti-Semitic acts likely were unusual (in Oklahoma and perhaps elsewhere). Later posts and off-list discussions have convinced me that such acts are not so unusual. My apologies. Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Wednesday, November 02, 2005 10:54 AM To: Law & Religion issues for Law Academics Subject: RE: FYI: An Interesting "See You at the Pole" Case Mark, if you will recall, I said in my first Protestant Empire article that I thought that the Protestant Empire was kept alive, that it continued to have a Real Presence, in part through the efforts of some non-Protestants. I find that behavior to be perhaps self-destructive given the historical meaning of Anglo-American evangelical Protestantism It is indeed probable that we will have five right-wing Roman Catholics on the Court, an astounding event. One way to think about this is to ask whether they represent "normative" American Catholic social, legal, and political thought. If they do then one might conclude that they will advance the interests of the Church at least as much as the interests of the Protestant Empire. If they do not represent "normative" American Catholic social, legal, and political thought, then one might reasonably conclude that they were selected by evangelical Protestants to do the work of the Protestant Empire, work which may not necessarily advance the interests of the Church. The question is what is the nature of the interest-convergence here. (This is a subject about which I intend to do some writing.) If these conservative-to-reactionary justices were selected by conservative-to-reactionary Republican presidents (two - Reagan and the younger Bush - being evangelical Protestants and one - the elder Bush - being an Episcopalian, although I suspect that he tends to be Low Church and therefore something of an evangelical himself, but I don't know for sure what his churchmanship is) in order to do the work of and otherwise to advance the interests of the Protestant Empire, then the case is very much like the one where right-wing former Dixiecrats like Strom Thurmond supported the nomination of Clarence Thomas to the USSC. I have no doubt but that Thurmond was convinced that Thomas would vote the way that Thurmond would have wanted. The largely evangelical Protestant Religious Right is convinced that first Roberts and now Alito will vote the way that they want them to. Again, it is the nature or the parameters of the interest-convergence that is all-important in assessing this remarkable turn of events: five Roman Catholics doing the work of the Protestant Empire (whether or not they are also doing the work of the Church which in and of itself is an important question) and two Protestant/Protestant-heritage justices and two Jewish/Jewish-heritage justices seeking to keep the Protestant Empire in check. Again, at the cost of sounding like a broken record, the question for me depends on what the normative teachings of the American Catholic Church happen to be. Is Anthony Kennedy closer to that normative position than Edward Kennedy? _____ From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Monday, October 31, 2005 3:13 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FYI: An Interesting "See You at the Pole" Case I would like to know how solid Paul's information is on this occurrence. I don't live in Oklahoma (though my father's family left there during the Depression), but I'd think such blatant anti-Semitism would be very unusual there. I'd also be interested in Michael's reaction to the nomination to the Supreme Court of another Catholic by our evangelical Protestant President. If the Protestant empire is alive and well, why no Protestant outcry after the replacement of an evangelical Protestant nominee (Harriet Miers) with a Catholic nominee who, if confirmed, would give Catholics an absolute majority on the Court? Mark S. Scarberry Pepperdine University School of Law
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