From Roper to Rosie to . . .

For some time now, I’ve been kicking around a draft paper about the Catholic Justices on the Roberts and Rehnquist Courts. Its genesis was a somewhat jarring liturgical experience, when the Prayers of the Faithful included a prayer of thanksgiving for a Supreme Court decision interpreting the Eighth Amendment that was authored by one Catholic Justice (Kennedy), with a dissent authored by another Catholic Justice (Scalia) and joined by yet another (Thomas). Over time, the paper morphed into a response to what one might think of as the Rosie O’Donnell or Geoff Stone view of the Catholics on the Supreme Court. (See here, around the 4:45 mark, for O’Donnell; here for Stone.) Reconceived in such a manner, however, I later realized that the paper had drifted in the wrong direction, for it is difficult to say something new, true, and interesting in direct response to a position already widely believed to be old, false, and uninteresting. But the lines of inquiry I had been pursuing may yet yield some insights into the Roberts Court’s approach not only to the sorts of issues that draw the institutional interest of the Catholic Church, but also to constitutional (and related statutory) decisions more generally.

The principal methodological move that I have made in developing the paper has been to consider the views of the Justices in conjunction with the amicus curiae briefs filed on behalf of the United States Conference of Catholic Bishops over the past twenty-five years (from the beginning of the Rehnquist Court in 1986 through the first six years of the Roberts Court, ending in spring 2011). The personnel changes over the last quarter-century on the Supreme Court make direct comparisons of Justices difficult, but the set of cases is large enough to yield interesting insights that I aim to share in my next few posts.

Thanks to Ashley Berner

We at CLR Forum want to thank Ashley Berner for absolutely superb, thoughtful, and deeply interesting commentary.  She has enriched our reflections and discussions immensely.  Her posts may be accessed here.  She may stay on for a bit to wrap up a few thoughts.  And hopefully she will agree to come back sometime soon.

CLR Forum Welcomes Kevin Walsh!

We are delighted to welcome Professor Kevin Walsh to CLR Forum for the next few weeks.  Kevin is a law professor at the University of Richmond School of Law, where he teaches courses in constitutional law, federal courts, and religion and the Constitution, among others.  Kevin is a graduate of Harvard Law School, after which he clerked for Judge Paul V. Niemeyer and Justice Antonin Scalia.  He writes primarily in the areas constitutional law and federal courts, and he also has scholarly interests in law and religion.

Garnett on the Ministerial Exception

The on-line interview series, Dialogues on Law and Justice, first noted by my colleague Mark, has posted a very useful and informative dialogue with Rick Garnett (Notre Dame) about the ministerial exception; the Hosanna-Tabor case and the several positions of the government, the legal academy, and the Court; some of the mechanics of Supreme Court cert. review; the relationship of the ME to other free exercise issues; and the various meanings of church-state “separation.”  Check it out.

“The Theological Aspirations of Secular Politics”

This is an interesting short review of a new book by Simon Critchley.  Here’s a paragraph which was particularly eye-catching (h/t Sam Bray):

The thinker who has done most to expose the theological aspirations of secular politics, and especially its infatuation with some version of providential design, is John Gray. Like Critchley, Gray thinks of modern politics as “a chapter in the history of religion”. What begins with the millenarian thinking of the Hebrew scriptures finds its expression in the bloody utopianism of the Jacobins, the Nazis and Stalin. Here, the book of Revelation is the surprising template for modern political action. “What is essential to neoliberal millenarian thinking is the consolidation of the idea of good through the identification of evil, where the Antichrist keeps assuming different masks: Saddam Hussein, Osama Bin Laden, Kim Jong-il, Mahmoud Ahmadinejad, and so on,” Critchley writes. For Gray, the reason to expose the theological underpinnings of political discourse is to exorcise its power. Only tragic pessimism can free us from the violence of the theologian’s ambition. But there are no votes in tragic pessimism. So the bloodshed continues.