I sometimes forget that catholics have a not unwarranted chip on their shoulders due to the anti-catholic special pleading they often face. Such as that which says a catholic is by necessity more governed by his or her faith than say a protestant or a buddhist or an atheist.

I contend only that Scalia cannot fail to be influenced by his catholicism. The nature and extent is unknowable and immeasurable, but I feel sure it’s there. And when I say that, I only say so because Scalia is human. I don’t single him out. Every other justice is influenced by his or her faiths, religiously philosophical or otherwise philosophical.

I think there is aline somewhere between the acceptable and the improper. On the accptable side is the folks whose rulings are informed by or suffused with their formative experineces, of which religious faith is often an important component. On the improper side is the folks whose rulings are, as you say, governed by their religious convictions.

What I think I hear you saying is that for a judge, his rulings and actions can be informed by experience and convictions but MUST be governed by the written law, especially by the constitution. That seems uncontroversial in the abstract, and much more difficult in the application. Which brings us back round to the good-faith effort, and back round to that word again. Faith. Here I think we are talking about legal faith. I guess a judge must belong first to the church of law, right?

Certainly, Catholics in public office are called on to follow the teachings and laws of the Church, see 1983 CIC §§ 11-12 (”Merely ecclesiastical laws bind those who have been baptized in the Catholic Church or received into it, possess the efficient use of reason, and, unless the law expressly provides otherwise, have completed seven years of age. … Universal laws bind everywhere all those for whom they were issued.”). You don’t punch out of the Catholic clock when you punch into the Government clock. That is why, for example, some argue that pro-choice Catholic politicians should be denied communion under Canon 915 (that’s a whole other debate that we needn’t get into now).

Consider, however, that while a Catholic who walks into McDonalds is still a Catholic, is still bound by the teaching and laws of the Church, her choice from the menu is not dictated by Rome. The Church has no teaching applicable to the age-old question of McNuggets vs. McRib. So it is with Catholic judges. Clarity on this issue, as I’ve suggested, is obscured by imprecise understandings of what courts are doing (or at least, what judges like Scalia are doing). If the role of the court in a case like Casey is to decide whether abortion is good or bad, or whether abortion should be legal, a Catholic would indeed be called to follow the Church’s teachings. But that is not the issue in Casey. The issues in Casey were about the content of American law: how the doctrine of stare decisis interacted with an earlier case, and whether the Fourteenth Amendment prohibited states from prohibiting abortion. These are questions of what states can do, not what they should to do, and the Church does not have teachings on those questions. Only by assuming that the court is deciding the fundamental moral issues rather than particular legal issues — a mistake even the best of laypeople often make — does it make sense to conclude that Scalia is being influenced by his Catholicism. That assumption is necessary to bridge the gap between the conduct (deciding cases in the court) and issues on which the Church has teachings – a point I tried to make humorously above in asking what the Church’s teaching on ERISA is.

I suspect that Scalia was influenced by his religious upbringing in the sense that it has a lot to do with his having become an originalist, a textualist, and a conservative. And his jurisprudence is certainly suffused with those things – hence the name of Ralph Rossum’s book on Scalia’s jurisprudence, Text and Tradition. But there is nothing improper in being influenced by those things (indeed “the sources of legal interpretation generally thought to be most authoritative[ are] the text, structure and history of the constitution and laws and the court’s own precedents,” Diane S. Sykes, Reflections on the Wisconsin Supreme Court, Hallows Lecture at Marquette Law School at 22 (2006), and there are other routes to them than Catholicism.

I say inevitably because all I expect is a good faith effort by folks to overcome whatever inherent biases come along with their lifetime experience package. I expect failure or at least imcomplete success, but I expect a good faith effort.

For me, it’s about metacognitive awareness…”I tend to lean towards x, so I’ll try to take that into account… .” But in the end, formative is formative. Scalia is informed by his catholic upbringing. I am fine with that absent evidence suggestive of overt favoritism to papal policy.

Alan Stewart Carl, a moderate blogger, writes about Judge Sonia Sotomayor’s controversial speech about race, gender, life experience, and law: “The worry is that Sotomayor doesnÂ’t believe in immutable law but believes the Constitution and precedent …

You remember some kid said a 13-year-old honor student had Ibuprofen, and as part of their investigation into this allegation the school strip-searched her. Every single Justice talked about their personal experience. The only Justice who seemed sympathetic to the young woman was also the only female Justice.

Most of the time this won’t matter. But we don’t hire the Supremes to decide most cases. They get the tough ones. Such as figuring out whether strip-searching 13-year-old girls for Advil is a reasonable violation of privacy rights.

We all have ideals with blind spots. Not throwing Sotomayor under the bus. Just wondering. Because it seems to me that some of her conservative-sounding statements of ideals may not be in consonance with some of her decisions.

Which makes her human. What else it makes her is each person’s mileage, I guess.

In this case, I think the proper adverb, one which goes to the very crux of the argument, is inevitably.

Charges that Scalia is improperly influenced by his Catholicism are easy to make, but only by generalizing and abstracting the issues in cases to the point of distortion. Moreover, they fail to account for two highly salient facts. First, Scalia is not the only Catholic on the court, and the charge that he simply follows Rome fail to account for cases where he splits from other Catholics on the Court. What should we make of those cases? Assuming, dubitante, that there is a “Catholic” answer to the legal issues, why assume that Scalia’s position represents it, rather than, say, Brennan’s, or Roberts’? Second, Scalia rarely writes for himself alone, and the charges that he simply follows Rome fail to explain — indeed, cannot explain — why, if there are not good non-Catholic reasons for his conclusions, non-Catholic justices have joined those opinions. Rehnquist, Souter, Ginsburg, and Breyer have joined Scalia’s opinions, but are not Catholics, and Thomas was joining Scalia’s opinions long before he returned to the Church in the late 1990s. And if there are good non-Catholic reasons for a result, on what basis do we conclude that Scalia’s conclusion arises from improper personal considerations?

I suppose that one advantage of the nomination is that it obliterates the left’s (always diaphanous) talking point about a “Catholic majority.” Remember those editorial cartoons we saw after Carhart with five Justices wearing mitres? And Prof. Stone’s comments? Those don’t work when there are Catholics on both sides of the decision, as there assuredly would have been in Carhart had Sotomayor been on the court, and as there assuredly will be in the next controversial abortion case. (No matter which side of the abortion and Roe-Casey issues one falls, one must recognize the realpolitik that, had Sotomayor not sworn a blood oath to uphold Roe-Casey, she would not be the nominee. This most savvy of Presidents would not leave such a matter to chance.)