Oh, I don't know, how many are Jews? Episcopalians? Methodists? Or Rastafarians?
I didn't think this kind of question was asked anymore in polite society. Maybe the number of Catholics on the Supreme Court is a matter of concern at the odd KKK meeting. But there was Rosie O'Donnell on ABC's "The View," ventilating her "concerns" after the high court upheld the Partial-Birth Abortion Ban Act of 2003. "How many Supreme Court judges are Catholic, Barbara?" she asked Barbara Walters before answering: "Five. How about separation of church and state in America?"
Say this about Richard Nixon: At least he confined his "concerns" about the number of Jews at certain federal agencies to private mumblings with aides. Rosie was counting Catholics on national television. But then, this kind of anti-Catholicism seems to be the last acceptable prejudice.
Witness University of Chicago Law School professor Geoffrey Stone's equally offensive take on the court's recent abortion ruling. He could find no reasonable explanation for the court's decision in Gonzales v. Carhart. Nothing in Anthony Kennedy's majority opinion or Antonin Scalia and Clarence Thomas's concurrence. So he offered his own reason the court affirmed Congress' right to ban partial-birth abortions: "All five justices in the majority are Catholic."
Yes, the court's four Protestant and Jewish justices voted in accord with "settled precedent"—or, at least Stone's view of "settled precedent" and his preferred outcome—in dissent. By contrast, Stone argued, the five Catholics upheld Congress' partial-birth ban because the procedure seems to "resemble infanticide" and is therefore "immoral."
"By making this judgment," Stone wrote, "these justices have failed to respect the fundamental difference between religious belief and morality. ... As the Supreme Court has recognized for more than thirty years ... it is not for the state—or for the justices of the Supreme Court—to resolve that question [of the fetus' moral status], and it is certainly not appropriate for the state or the justices to resolve it on the basis of one's personal religious faith."
In brief, the court's Catholics violated their oath to uphold the Constitution and heeded the catechism of the Catholic Church instead.
It's easy to brush off Rosie's rant as just another bit of the ill-informed craziness she was prey to before departing "The View." But what are we to make of the professor's upholstered bigotry? One, that it is bigotry pure and simple. Two, that, like all bigotry, Stone's poisoned thesis cannot stand up to even minimal scrutiny.
For starters, Kennedy was one of the majority justices in Planned Parenthood v. Casey, which in 1992 reaffirmed Roe v. Wade's abortion right and affirmed states' ability to regulate in this area. If he was so keen on imposing his religion and ignoring precedent, he probably would have started doing so back then. As it stands, his opinion in this abortion ruling was a painstaking effort to heed Casey's precedents.
The majority justices were not imposing their religious views on anyone. Far from it. Gonzales is really about the proper deference courts owe legislatures. As Notre Dame Law School professor Richard Garnett wrote in reply to Stone, the court was simply saying that "the Constitution does not disable legislatures entirely from regulating what most people (not just Catholics, fideists, and sexists) regard as a particularly gruesome abortion procedure."
If Stone is worried about the court's Catholics, he should look up Judge Diarmuid O'Scannlain. He's a Catholic and a judge on the 9th U.S. Circuit Court of Appeals since 1986. Last fall, he spoke at the University of St. Thomas School of Law in Minneapolis. His topic: "Must a Faithful Judge be a Faithless Judge?" His answer: an elegant "no."
It's a rich speech that examined St. Thomas Aquinas' "Treatise on the Law" and St. Thomas More's commitment to the rule, the separation of powers and the separation of church and state, the proper and modest role of judges and respect for the role of legislatures. "[A]s I understand what my faith tradition teaches me about jurisprudence, it amounts to the most unexciting and non-threatening jurisprudence one can imagine: one committed to the rule of law," O'Scannlain said. "If we have the rule of law, rather than of judges, then the faith of the judge should not matter much."
