Stone on Sotomayor, Scalia, and Our Six Catholic Justices

Stone on Sotomayor, Scalia, and Our Six Catholic Justices
Geoffrey R. Stone
The Huffington Post
August 28, 2009

Now that Justice Sotomayor has officially donned her robe, I'd like to muse a bit about the extraordinary fact that we now have six Catholic justices. This is a great testament to our nation's capacity to grow more tolerant over time. For most of American history, anti-Catholic prejudice was severe in the United States, and the idea that we would one day have six Catholic justices was about as likely as the prospect that we would one day have an African-American president.

But does the religion of the justices in any way matter to the business of the Supreme Court? A lot of attention was paid during the confirmation hearings to Justice Sotomayor's Hispanic heritage and the impact it might have on her jurisprudence, but her faith was largely backgrounded, as if being Latina matters but being Catholic doesn't.

Several years ago, I posted a piece (Our Faith-Based Justices) about the Supreme Court's decision in Gonzales v. Carhart, in which the Court, in a five-to-four decision, held constitutional a federal law prohibiting so-called "partial birth abortions." Several years earlier, in Stenberg v. Carhart, the Court, also in a five-to-four decision, had held unconstitutional a virtually identical state law.

What interested me most about Gonzales was that, in my judgment, the Court had no reasonable basis for not following its own prior decision. Not much had happened in the law in the years between the two decisions. The only really significant change was that Justice Alito, who voted with the majority in Gonzales, had replaced Justice O'Connor, who had voted with the majority in Stenberg.

Ordinarily, in the face of such a clear and recent precedent, we would expect the justices to follow the prior decision. What intrigued me about Gonzales was that the five justices in the majority couldn't bring themselves to apply the early decision. Instead, they purported to distinguish Stenberg, on grounds that just were not persuasive.

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Geoffrey R. Stone