The social media site Facebook offers users the option of identifying their relationship status with a vague descriptor: “It’s complicated.”
That phrase might come in handy as we sort through the impact of the retirement of Supreme Court Justice Anthony Kennedy. The 81-year-old Irish Catholic jurist from Sacramento, California, turned the political world on its head when he announced last week that he was retiring after three decades on the High Court.
It’s always a big deal when there is a vacancy on the Supreme Court. Because these are lifetime appointments we’re talking about, helping to put a particular judge in such a prominent position can be a president’s most important legacy.
But, filling the vacancy caused by Kennedy’s retirement will be a bigger deal than usual because — since the retirement of Sandra Day O’Connor in 2005 — the center-right Irish-Catholic was the crucial “swing” vote on a variety of issues ranging from gun control to same-sex marriage to capital punishment.
President Trump isn’t wasting the opportunity — or wasting any time in coming up with a replacement. He says that, on or before July 9, he’ll announce his pick from a short list that he claims has five names on it — two of which are those of women.
Look at the math. Just a few years ago, before the death of the late Justice Antonin Scalia — the High Court seated, among its nine members, six Catholics: Scalia, Clarence Thomas, Sonia Sotomayor, Samuel Alito, John Roberts and Anthony Kennedy.
This is a stunning demographic fact when you think about it. After all, you have to remember that — of the 113 justices to be nominated or appointed and confirmed to the Supreme Court in the 229 years since the body was founded in 1789 — most of them were Protestant.
The first Catholic on the Court — Roger B. Taney, appointed chief justice by Andrew Jackson in 1836 — is perhaps best forgotten, given that he wrote the majority opinion in the infamous Dred Scott decision which declared black Americans the property of slaveholders.
Others Catholic justices followed, and soon it became something of a tradition to have at least one “Catholic seat” on the High Court. Yet, it’s worth noting that, over the years, there was usually only one Catholic on the Supreme Court at a time.
There is speculation that one of the names on Trump’s list is that of Amy Coney Barrett. A U.S. Appeals Court Judge, Barrett is a graduate of Notre Dame Law School, where she later served as a law professor. She is also a practicing Catholic.
During Barrett’s confirmation hearing for the federal bench, the abortion issue loomed large. Democratic Sen. Dianne Feinstein accused the nominee of being unable to judge abortion cases fairly because of her faith. “The dogma lives loudly within you, and that’s a concern,” Feinstein lectured Barrett.
“It’s never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law,” Barrett cooly responded.
Good for her. But what an outrageous attack by Feinstein. Talk about bias. It’s hard to imagine a prospective jurist who practiced another religion getting that sort of treatment. But with Catholics, it’s par for the course.
In fact, until July 9, we can expect to hear the word “abortion” quite a bit from Democrats and the media — and for that matter, Democrats in the media. After a few days of this, some Americans might even conclude that no other issues ever come before the Supreme Court.
Already, CNN Senior Legal Analyst Jeffrey Toobin has predicted the end of Roe v. Wade, the notoriously creative 1973 Supreme Court decision that somehow found a right to privacy in the Constitution and then extended that right to cover a woman’s decision to have an abortion.
That is certainly taking the long way home. It’s not hard to see why that decision has remained so controversial — no matter who is in the White House, or who sits on the Supreme Court. It’s not resting on firm ground.
But is it fair to assume that a Catholic justice — or even a largely Catholic High Court — would automatically disregard the law, the precedent and the facts of a case because of an adherence to dogma that supposedly “lives loudly” within them?
No, it’s not fair to do that. Nor is it logical.
Judges might decide that continuity counts for something and that young women should have the same Constitutional rights to end a pregnancy that their mothers and grandmothers did.
Consider the example of the man whose decision to retire set all this drama in motion: Anthony Kennedy.
Although he is a Catholic, Kennedy voted with the liberal majority in the landmark 1992 decision in Planned Parenthood v. Casey, which upheld Roe and struck down a handful of restrictions on abortion passed by the state legislature in Pennsylvania.
That vote doesn’t make Kennedy a bad man, or a bad Catholic. But it does serve as a good example of how some public servants can separate their faith from their duty.
You see, trying to predict what a judge might decide in a case that has not even yet reached his or her desk yet is tricky business — especially when that judge has the job security of a lifetime appointment, an independent streak, an appreciation for judicial restraint and a dose of common sense.
No matter who replaces Justice Kennedy — and even if his replacement is a Catholic — we can expect him or her to decide cases according to the law and the facts and not much else.
You see, regardless of individual religious views, that person is likely to think of himself or herself as a judge first. With most members of this tribe, it is — above all — professionalism that lives loudly within them.
Ruben Navarrette, a contributing editor to Angelus News, is a syndicated columnist with The Washington Post Writers Group, a member of the USA Today Board of Contributors, a Daily Beast columnist, author of “A Darker Shade of Crimson: Odyssey of a Harvard Chicano” and host of the podcast “Navarrette Nation.”
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