Judging justices, Catholic and otherwise

When Samuel Alito was nominated to the Supreme Court by President Bush in 2005, there was a great and frequently uncivil hoo-rah to the effect that Alito would give the Supremes a “Catholic majority.” In this case, “Catholic” was code for “anti-Roe v. Wade”—and if you doubt that, consider that there was precious little noise out of the folks who fretted about Alito and the Catholic “majority” when President Obama nominated Judge Sonia Sotomayor, of Puerto Rican and Catholic ancestry, to fill the slot on the Court being vacated by Justice David Souter.

From what little was disclosed about Judge Sotomayor’s religious convictions and practice immediately after her nomination, it seems fair to say, at a minimum, that she’s not been particularly ardent in the practice of the faith. But that’s entirely beside the point when considering what her accession to the Court would mean—

as it should have been entirely beside the point with Sam Alito, who by all accounts is a seriously practicing Catholic. To grasp what counts, think back to the Winter Olympics during the heyday of the Cold War.

Olympiad after Olympiad, there were bitter protests over the behavior of Soviet and other communist-bloc judges in events—like figure-skating—that were be rule-governed, but in which certain judgments calls were inevitable. No one denied the latter; the problem was that the communist judges always seemed to give higher marks to athletes from their own countries. Everyone knew this was going on. Most people thought it grossly unfair, and a lot were outraged. But the communist judges likely thought they were doing their patriotic duty (or saving their jobs, and perhaps in some cases their scalps) by tilting toward those with whom, by their ideological lights, they were supposed to empathize.

If, however, you thought it bad practice in sports that a rule-governed contest into which judgment calls inevitably intruded had been turned inside-out, such that the rules were regularly bent to subjective considerations, you might want to ponder something Judge Sotomayor said in 2001: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better [judicial] conclusion than a white male who hasn’t lived that life.”

In a political culture in which “narrative” is now all, there may be an inclination to think that there’s wisdom in that claim. But Justice Clarence Thomas—whose riveting memoir, “My Grandfather’s Son,”tells a tale of achievement against great odds at least as compelling as Judge Sotomayor’s—would disagree. Why? Because Justice Thomas thinks it his duty to extrude his personal experiences from his judging, and to interpret the law according to his best understanding of what legislators intended. Judge Sotomayor, who once said that “policy is made” by the courts, has a far more expansive idea of the appellate judiciary’s role in our system.

“Empathy” is an admirable quality in a judge in certain legal circumstances—sentencing, for example—but not in determining what the law means. If ours is to remain a system in which the people govern themselves through elected representatives, federal appellate judges and Supreme Court justices cannot act as if they were a Super-Legislature. Judges are not appointed to make law; that’s what state legislators and members of Congress do. No claim to superior “empathy” ought to change that constitutional fact. Indeed, the federal judicial oath itself enjoins a dispassionate commitment to equal justice on all judges.

There‘s nothing new about this argument, save that this time it’s likely to be submerged beneath the nominee’s personal story. What might be new, though, and what should certainly be put to Judge Sotomayor in her confirmation hearings, is the question of whether she regards as settled law those elements in the 1992 Casey decision that permit regulation of the abortion industry (by such measures as informed consent and parental notification in the case of a minor seeking an abortion). If she doesn’t, then the door will have opened wider to the de facto enactment of FOCA—the Freedom of Choice Act—through judicial rather than legislative action.

COMING UP: On Fathers and Christian Masculinity

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The Year of St. Joseph points us to Jesus’ adoptive father, Joseph, as the essential model for fathers. Joseph not only manifests genuine masculinity, he also images God’s own fatherhood, as Pope Francis makes clear in his apostolic letter, Patris Corde: “In his relationship to Jesus, Joseph was the earthly shadow of the heavenly Father: he watched over him and protected him, never leaving him to go his own way.” Jesus, though the Son of God, obeyed Joseph, learned from him, and worked with him, acknowledging Joseph as a true expression of God’s own fatherhood.  

God does not just use fatherhood as an image of himself, because he himself is Father, even within his own triune life. Earthly fatherhood comes forth from him and should manifest his life and love. St. Paul speaks of honoring the “Father, from whom all fatherhood in heaven and on earth is named” (Eph 3:15). God wants everyone to be able to see his own fatherly love and called certain men to share in his own paternal gift of bringing forth life and caring for others. Every father is called to be liked Joseph, “an earthly shadow of the heavenly Father” for his own family. 

Our culture, however, often denigrates masculinity, sometimes viewing even its proper expressions as toxic. We too often see maleness in its fallenness — dominating and selfish — rather than showing self-sacrificial service. In fact, later in Ephesians, Paul speaks of the true vocation of the husband and father: “Husbands, love your wives, as Christ loved the church and gave himself up for her” (Eph 5:25). He also speaks of the role of fatherhood: “Do not provoke your children to anger, but bring them up in the discipline and instruction of the Lord” (Eph 6:4). Paul shows us the goal of fatherhood — sacrificing himself for the flourishing of the family by putting the good of his wife and children before his own desires.   

No matter what the contrary voices of our culture say, we need strong men and fathers. God created man and woman in complementarity, and they need each other to thrive, helping the other in relation to their own strengths and weaknesses. Children need the strong presence of a father to discipline and teach, as Paul reminds us. Study after study has shown that fathers have the largest impact on the faith of their children. Christian Smith explains in his sociological study, Young Catholic America, that “the faith of Catholic fathers is powerfully determinative of the future faith of their children (125). The same can be said for general wellbeing and success. When fathers are absent or refuse to exercise their role, a moral and spiritual vacuum appears. A strong majority of felons, for instance, grew up without fathers in the home.  

St. Joseph helps us to understand the strength of Christian fatherhood. First, like any good husband, Joseph listened — not just to his wife but also to God. Woken up frequently by angels, he demonstrated obedience and trust, quickly leaving everything behind to follow God’s instructions and to protect his family. We also know Joseph for his work as a carpenter and builder, content to live simply and to work hard. Importantly, he also taught Jesus how to work, showing that fathers model and teach by drawing their children into their life and work. And we can also learn from Joseph’s humility, serving the Incarnate God and his Mother without even a single recorded word in the Gospels.  

This humility points us to the essence of Christian fatherhood. Although living with two perfect people, Joseph was still called to lead. He quietly and humbly did what was needed for his family and taught his own maker how to share in his work. Fathers do not lead in order to be in charge or to get their own way. They lead because God asks them to care for and protect their families. Fathers and mothers share in the great and beautiful partnership of family life, although fathers cannot simply sit back and let mom take the lead in the spiritual life, as they are often tempted to do. Like Joseph, fathers should act firmly and lovingly to put God and the family before self, obeying God and leading the family in the right direction. They are called to model faith, work, and sacrifice to their children. 

On Father’s Day we can affirm that masculinity and fatherhood are not just good — they are essential to understanding God and his plan for human flourishing. If our culture turns around, it will be because, in large part, Christian men stand up and fight. As Christians, we cannot give in to the culture’s attempt to denigrate masculinity and fatherhood or to pit men and women against each other. We can use this celebration to affirm the essential role that our fathers play, leading their families like St. Joseph.