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Opinion
Catholics and the Supreme Court

By Dwight G. Duncan
Posted: 2/23/2007

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On Feb. 26, I’ll be accompanying a group of my law students to the U.S. Supreme Court. The trip, which involves a few other faculty of Southern New England School of Law, was arranged by fellow professor Lisa McElroy, who wrote a children’s biography of Chief Justice John Roberts. (Earlier, she had written one about the first female justice, Justice Sandra Day O’Connor.) We’ll be hearing a couple of oral arguments in cases that morning, touring the court, and meeting with Chief Justice Roberts.

Both of those Supreme Court justices, Chief Justice Roberts and newly-retired Justice O’Connor, were interviewed on the recently broadcast PBS documentary entitled “The Supreme Court.” The two-part, four-hour documentary gave a fascinating history of the nation’s highest court, which now for the first time in its history has a majority of justices who are baptized, indeed practicing Catholics: John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito (five out of nine justices). It wasn’t so long ago that there was talk of a (meaning one) Catholic seat on the court, but evidently times have changed.

Interestingly, there have been Catholic chief justices before. Edward Douglass White was a chief justice from Louisiana appointed to head the court by President Taft in 1910, though he had served many years prior to that as an associate justice appointed by President Cleveland. Roger Brooke Taney, the chief justice appointed by Andrew Jackson, was a Catholic from Maryland. He wrote the infamous Dred Scott decision for the court on March 6, 1857, which declared that African-Americans were not persons within the meaning of the Constitution and that the Missouri Compromise of 1820 was unconstitutional because it outlawed slavery in some territories. (We are fast coming up on the 150th anniversary of that momentous decision, which hastened the coming of the Civil War.)

Dred Scott was only the second time that the Supreme Court declared an act of Congress to be unconstitutional; the first was the 1803 case of Marbury v. Madison, in which Chief Justice John Marshall explained the court’s power of judicial review: to judge whether laws implicated in deciding cases and controversies are consistent with the Constitution, and if not, to invalidate them. If Marbury was a victory for the court, Dred Scott was a disaster for the court and the country.

More recently, if the 1954 decision of Brown v. Board of Education, which declared segregation in the public schools to be a violation of the 14th Amendment’s guarantee of “equal protection of the laws,” was an unqualified judicial success, the 1973 decision of Roe v. Wade, which like Dred Scott declared a category of human beings, this time the preborn, to be non-persons under the law and thus not entitled to the protection of the law, was an unmitigated disaster for the court and the country. Once again, it was a Catholic justice, William Brennan, who was instrumental in that miscarriage of justice. And in 1992, when the Supreme Court considered whether to overturn Roe v. Wade, it was another Catholic justice, Anthony Kennedy, who provided a swing vote to uphold the Roe court-ordered regime of effective abortion on demand.

For the Supreme Court is not infallible. It has obviously made mistakes, and it is “supreme” only in the sense that for the present it has the ultimate word on the meaning of laws and the Constitution in cases before it. All human justice is necessarily provisional, and Catholic judges are as liable to injustice as anyone else, perhaps more culpably because they should know better.

“Presidents come and go, but the Supreme Court goes on forever,“ said William Howard Taft, who succeeded his appointee Chief Justice White as chief justice himself in 1921--the only president to become a chief justice. As Catholics, of course, we know that no merely human institution will last forever. And constitutional precedents can be undone by overruling at some future date or by constitutional amendment.

In the final analysis and in the long run, we are all dead--though our faith assures us that if we truly hunger and thirst for justice we shall live forever and ultimately be satisfied in a kingdom without end, that really does go on forever--‘‘per omnia saecula saeculorum.”

Beginning the penitential season of Lent, we might ask ourselves if we have that abiding passion for justice that really should be supreme in our lives and in our country. For what does it profit a man to be called a “justice” or a Catholic, for that matter, unless he really and truly is trying to be just and to do justice?

Dwight Duncan is a professor at Southern New England School of Law. He holds degrees in both civil and canon law.