Sunday, October 4, 2009

Red Mass

When I saw this photo of my former law partner John Roberts standing beside the Roman Catholic Archbishop of Washington, DC, three questions occurred to me.

First, how come lawyers don't get to wear those fancy robes? In England at least the barristers wear wigs. Here, the Chief Justice of the United States wears a plain old suit. Bah.

Second, should we be concerned, as some people apparently are, that justices of our highest court annually attend a Roman Catholic religious service specially intended for lawyers and judges? Should we, indeed, be concerned that the Supreme Court, although diverse in judicial philosophies, in gender, and in race, is dominated by one religious denomination?

Third, should the religious makeup of the Supreme Court make loyalist Episcopalians comfortable or uncomfortable when looking forward to an eventual judicial resolution of the property disputes and related issues that have arisen out of the current schisms within our church?

I have no answers to these questions. I invite comments.

By Eric Von Salzen


  1. Eric

    Interesting post, thanks for posting it. I would suggest that the primary reason he is in his "civies" is that he is in attendance in his individual capacity and not on behalf of his role as CJ, etc.

    Having attended a Jesuit law school, we held Red Mass every fall and it was a great time of reflection, contemplation and (for those of us so inclined) a true search for God's direction in the pursuit of justice (or at least trying to learn about it). Most of our law school administration was Jewish (dean and the vast majority of professors) and we all attended together and gained from it immensely.

    As to the religious affiliation domination query you pose, I submit that we are only to be concerned with those who state that any such affiliation is not reflected in the decisions of the Court. I hope we're all smart enough to agree that all prejudices and predispositions affect our decisions and the decision-making process--certainly the same is true of the Court.

    To suggest that the Court, which is comprised not just of institutions, history or archaic processes but also of people, is immune to these prejudices and predispositions would be folly.

  2. I think I share your concern at the number of RCs on the current court. I hope I won't be disappointed in Sotomayor.

    I do think that RCs will be more interested in the Free Excerise half of the Non-Establishment/Free Exercise coin. That a court can overturn how a religious denomination chooses to order its common life is an issue that I think would be of great significance.

    But, I thought I read that Thomas was connected with Truro. He's listed as one of the Catholic justices, but I have no reason to believe that he is still one.

  3. The Episcopalian side in these cases has a pretty good chance if the decision is made on the courts precedents; SCOTUS has made several decisions that would support the property rights of hierarchical churches; these include at least one famous case that directly involved the Episcopal Church: and which included a direct SCOTUS recommendation that TEC adopt what we now refer to as the "Dillon" rule.

    The fact that a number of the justices are Romans could also actually a good thing from the point of view of TEC; the Romans on the court are likely to have a good understanding of the Episcopal church's hierarchical organization - since it is so similar to that of Rome.

    I, for one, am far less concerned about the denominational affiliation of the majority on the court, than I am about what seems to be a substantial and growing tendency for the court to decide cases based on partisan considerations.

    For example, in Gore vs Bush the court basically made no bones about deciding the case on their own partisan political ambitions rather than on precedents, the rule of law, or the constitution. In fact, they made sure to issue their opinion with the clarification that it, too, should not be regarded as precedent for any other case; by implication, they admitted that the decision was not made on any precedent nor was it even consistent with their own prior stated and practiced judicial philosophy. Instead, they decided the case on pure, barely disguised, political partisanship. Although most people would agree this is not the ideal vision of justice in our culture, pretty much everyone would also agree that Bush vs Gore was not the first nor will it be the last case decided in this way; some historians would suggest, for example, that this kind of partisan politically based decision dates back to Marbury Vs Madison and before.

    What bothers me about this in the cases of TEC's property is that, as the other commentary has noticed, several of those in the conservative majority are either associated with some aspect of the case (e.g. Thomas with Truro), or are associated with conservative aspects of the Roman denomination (Scalia and Roberts), which have already taken partisan political positions on social issues which directly or by implication support the positions taken by the secessionists.

    It's possible, even likely, that some of the justices may see an "opportunity" to deal a blow to what they see as "social liberalism" and will decide the case based on that opportunity for scoring partisan political points.


  4. Eric:

    In response to your third concern, I just read in another blog that the U.S. Supreme Court has refused to hear a property dispute case involving a parish in the Diocese of Los Angeles. I don't know if this will serve as a precedent with regard to whether or not SCOTUS will consider future cases of this type (you'd know the answer to that better than I). But I would think that it MIGHT dissuade other suits from making it beyond a state Supreme Court.


  5. I thought only Scalia and Alito were "Romans" but that six of the nine were Catholics.
    Seriously, aren't we all just a little too old for this "Apostolicae Curae" paranoia? Phillip II and Louis XIV have been dead centuries; do you talk about the Orthodox as "Constantinopolitans" or "Moscovites"?
    You didn't protest seriously when the number of Catholics was grossly disproportionate to their number on the Court (or anywhere else, for that matter). There are two Jews on the court. Jews don't make up 2/9ths of the US population. Any worries about their "disproportionate influence"?
    I'm not a Catholic (lapsed Protestant)and even I think that this is stupid.

  6. Thanks to all who took the time to comment on this post.

    My own view, for what it's worth, is that the religious convictions of Supreme Court Justices have no significant effect on the outcome of cases -- and neither does their race, gender, or ethnicity.

    And I'm personally glad that American lawyers don't have to wear robes and wigs.