At the Huffington Post, U-Texas grad student William Blake writes about a study he conducted on the impact of the justices’ religious views on Supreme Court decisions. (The study, published in the Political Research Quarterly, is here). Although not as important as other factors, Blake maintains, the justices’ religious views do have a limited impact on their decisions. In cases “connected to religion,” he writes, Catholic justices are “more likely to support the position of the Catholic Church” than their Protestant and Jewish colleagues.
Now, I’m no expert in statistics, so perhaps I’m missing something. But the main example of religious influence Blake cites in his Huffington Post piece is a bit surprising. It’s Justice Anthony Kennedy. According to Blake, the Catholic concept of “human dignity” has influenced Kennedy’s jurisprudence. For example, “Kennedy has written two important majority opinions in support of gay rights using dignity as a concept”:
In Roemer v. Evans, Kennedy viewed a Colorado constitutional amendment that prevented gays from seeking discrimination protection as a disadvantage imposed out of “animosity” to gays. In Lawrence v. Texas, the Supreme Court struck down a state law criminalizing gay sexual conduct. Justice Kennedy began his majority opinion in Lawrence with the following observation: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
It’s not at all clear that the Catholic concept of human dignity, which informs so much of international human rights law, has very much in common with the understanding of autonomy in cases like Lawrence. And things get even stranger when Blake turns to Kennedy’s abortion jurisprudence:
Justice Kennedy’s record on abortion, on the other hand, is more conservative. Biographer [Frank] Colucci describes some of Kennedy’s abortion opinions as containing “paternalistic and moralistic language.” In one abortion case, Justice Kennedy wrote: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child. Whether to have an abortion requires a difficult and painful moral decision…[S]ome women come to regret their choice.”
The case Blake quotes is Gonzales v. Carhart, in which the Court upheld the constitutionality of the federal partial-birth abortion ban. That’s certainly a “conservative” decision, as the Court’s abortion jurisprudence goes. But it’s difficult to see how the statement Blake quotes reflects a specifically Catholic sensibility. Plenty of secular-minded judges would say similar things. And there’s the even more glaring fact that Justice Kennedy co-wrote the joint opinion in Casey, with its famous “sweet mystery of life” passage–an opinion that hardly reflects a Catholic view of abortion.
Maybe Blake has better evidence in his paper. Actually, it wouldn’t shock me if religion had some influence on the justices’ decision-making in Religion Clause cases–though I suspect it would be very hard to disentangle religion from factors like upbringing and general worldview. But Anthony Kennedy as a Catholic jurist? Not too convincing. (H/T: John Barrett).