Addressing three problems in commentary on Catholics at the Supreme Court by reference to three decades of Catholic Bishops' amicus briefs.

• Author: Walsh, Kevin C.

Introduction I. The Catholic Justices in Contemporary Commentary II. The Bishops' Conference and the Catholic Justices on the Rehnquist and Early Roberts Courts A. The Rehnquist Court B. The Roberts Court Through October Term 2013 III. The Complexity of Catholic Influence Conclusion INTRODUCTION

Catholics have commanded a majority on the Supreme Court since early 2006 when Justice Alito joined the Court as its fifth sitting Catholic Justice. (1) The Court's Catholic ranks swelled to a supermajority in August 2009 when Justice Sotomayor ascended to the Court. (2) These developments have resulted in plenty of commentary over the past several years linking the religious identity of the Catholic Justices with their votes and opinions. This commentary will continue as long as there are enough Catholics on the Supreme Court to make a difference in how cases turn out.

There are three principal problems with much of this commentary. First, it pops up--and will continue to pop up--in the same way that the Supreme Court decides cases: one case at a time. As a result, commentary on Catholic Justices voting for the outcome supported by the Catholics bishops in an abortion case, for example, is not linked to commentary on Catholic Justices voting against the outcome supported by the Catholic bishops in a death penalty case. And the commentary on Catholic Justices voting for the outcome supported by the Catholic bishops in the contraceptives mandate cases will not be linked to commentary on Catholic Justices voting against the outcome supported by the Catholic bishops in deciding on a constitutional right to same-sex marriage.

Second, there is a curious asymmetry in causal attributions. It is not deemed news- or noteworthy that Catholic Justices sometimes vote against outcomes advocated by Catholic bishops. And yet commentators somehow think it plausible to assert that when these Justices vote for an outcome supported by the Catholic bishops, they do so because they are Catholics. For example, if Justice Kennedy votes to uphold a ban on partial-birth abortion, he does so because he is a Catholic; but if he votes to find a constitutional right to same-sex marriage, he does so despite being a Catholic. This asymmetry was on display most recently when some commentary used Justice Sotomayor's Catholic background to explain her grant of an injunction to protect the Little Sisters of the Poor from the contraceptives mandate, while coverage of her dissent from a different injunction regarding the same mandate focused on her gender rather than her religious background. (2)

Third, this commentary tends to ignore the legal and ideological coherence of the particular Justices' votes considered apart from their identity as Catholics. Justice Scalia's votes in abortion and death-penalty cases are explained by similar jurisprudential commitments that align him with the Bishops' Conference's position in one set of cases and against their position in the other. The same may be said of Justice Kennedy's votes in death-penalty and same-sex-marriage cases, to pick another example. Academic attitudinalists, who view Justices' votes as a function of the Justices' attitudes, attribute little significance to religion as an ideological variable. Y et armchair attitudinalists nevertheless insist on ecclesial affiliation as explanatory.

This Article addresses these problems in a new way. It assesses the relationship between the religious identity of the Catholic Justices and their votes in Catholic-salient cases by drawing on an overlooked resource setting forth an institutional Catholic position in a wide range of cases--the Supreme Court filings of the United States Conference of Catholic Bishops. The Bishops' Conference is a corporate body that includes all the Catholic bishops in the United States and speaks on matters of public importance, such as the relationship between morality and law. (4) The Conference's briefs supply the closest thing one can find to the Catholic position on questions of constitutional law, but it is important to note at the outset that there is no such thing. To be clear: there is no "Catholic answer" to questions of federal constitutional law (or any questions of federal law, for that matter). There is, for example, a Catholic teaching about the morality of the death penalty. (5) But there is no Catholic teaching about the legal meaning of the Eighth Amendment. There is, to pick another example, a Catholic teaching about the necessity for the Church to have the freedom to be a Church: to administer sacraments and to gather the People of God. (6) But there is no Catholic teaching about the meaning of the Free Exercise Clause of the First Amendment. And so on. When bringing Catholic teaching to bear on questions of federal law before the Supreme Court of the United States, the Bishops' Conference makes prudential, strategic, tactical, and legal judgments in deciding whether to file a brief and what to include in it. (7)

Even while affirming that there is no single "Catholic answer" to questions of federal law, it is important not to overemphasize this point. Catholic social teaching guides the Bishops' Conference's amicus briefs, and all of these briefs ask the Court to implement the insights of that teaching in some way. Moreover, it is hard to imagine the Bishops' Conference weighing in on the opposite side of most of the cases in which they file. Take, for instance, a case involving the constitutionality of a capital sentence or a law restricting abortion. As a potential amicus curiae, the Conference's principal decision is whether to file or not. In these cases, there is little doubt what outcome the Conference would advocate in any contemplated filing. When filing on something like immigration law, by contrast, the Bishops' Conference's judgment about what side to support is likely to be more heavily influenced by prudential considerations relating to which particular governmental actors and policies are more likely to align more consistently with Catholic social thought.

The Bishops' Conference does not file an amicus curiae brief in every case in which Catholic social teaching has something to say about the subject matter. But every case in which the Conference has filed an amicus curiae brief is one such case. And considering these cases as a group provides a way of getting beyond the single-issue focus that too often results from the episodic way in which questions about the relationship between religious faith and role fidelity typically arise with respect to Catholic Justices. Taking these as a group, one can also see that virtually every Catholic Justice now on the Court has voted against the outcome advocated by the Bishops' Conference at least once (Chief Justice Roberts is currently the sole exception). By comparing the majority-Catholic Roberts Court to the Rehnquist Court, which included both non-Catholic conservatives like Chief Justice Rehnquist and Catholic liberals like Justice Brennan, one can see that the high rate of agreement between the Catholic Justices and the Bishops' Conference during the Roberts Court is largely a function of ideology rather than ecclesial affiliation. And one can also see how the Justices' votes in cases in which the Bishops' Conference has participated as amicus curiae make sense given the Justices' broader ideological and legal commitments. Their identity as Catholics may have shaped those commitments in some way, but one does not need to look through or underneath those commitments to explain the Justices' votes. In short, this Article's identification and exploration of areas of consonance and dissonance at the level of outcome in the cases in which the Bishops' Conference participated as amicus curiae provides a new and useful way to examine complex matters about which too many simplistic observations have too often been made.

This Article has three parts. Part I locates the Catholic Justices in recent popular and academic commentary and reveals the three problems highlighted above. Part II examines the votes of the Justices (Catholic and non-Catholic alike) in cases in which the Bishops' Conference filed an amicus curiae brief over an approximately thirty-year period that begins with the opening of the Rehnquist Court and ends with the October 2013 Term of the Roberts Court. Part III analyzes the results of Part II's assessment in light of the distinctive and limited roles of both the Bishops' Conference and the Catholic Justices.

1. THE CATHOLIC JUSTICES IN CONTEMPORARY COMMENTARY

   One knock on American Catholics historically has been the suspicion that they do not think for themselves, a suspicion reinforced by the hierarchical nature of the institutional Church and the initially uncertain position of American Catholics in public life. (8) This suspicion has had less purchase over time, but still lingers in some quarters. Indeed, some continue to express a version of this suspicion with respect to the six Catholic Justices now on the supreme Court of the united states when some salient issue or case brings the Catholic Justices' religious identity to the fore.

   When Justice Sotomayor granted temporary injunctive relief in response to an emergency application filed by the Little sisters of the Poor, for example, many news reports noted that Justice Sotomayor is Catholic. (9) In a U.S. News and World Report posting titled, "The Catholic Supreme Court's War on Women," one particularly strident commentator explicitly asserted that Sotomayor "is a Catholic who put her religion ahead of her jurisprudence." (10) This commentator went on to speculate that "[t]he seemingly innocent Little Sisters likely were ... not acting alone in their trouble-making." (11) Instead, they were acting in cahoots with (or maybe under the direct control of) "[t]heir big brothers, the meddlesome American Roman Catholic Archbishops," who "seek and wield tremendous power and...