The "Catholic majority" possibility became the instant-reaction fun fact of this nomination. "Catholics could get majority on High Court," the Associated Press headline announced. The New York Times and Cox News Service ran similar stories. Conservatives issued their now-traditional warning that the confirmation process had better be "free of any attack on Judge Alito's Catholic faith and personal beliefs." Liberals pointed to a potential Catholic majority as proof of the imminent overturning of Roe v. Wade. Both sides appeared to automatically equate "Catholic" with "pro-life."
Yet, as anyone who followed last year's presidential election knows, that calculation is not always accurate. Running throughout John Kerry's campaign was the question of whether or not he would be denied Communion on any given Sunday because of his pro-choice views. Over the past 20 years, dozens of Catholic politicians-mostly Democratic, but including some Republicans such as former Pennsylvania Governor Tom Ridge-have been targeted by Catholic leaders for their pro-choice views in a conscious strategy to enforce adherence to Catholic teaching.
With the issue of abortion resting primarily in the province of the courts, and with the prevalence of Catholic judges in the judiciary system now highlighted, the specter of a majority-Catholic Supreme Court raises an obvious question: How long will it be before U.S. bishops begin applying pressure to Catholic judges who strike down abortion restrictions?
The mere posing of that question would probably turn Bill Donohue, president of the Catholic League, several shades of crimson and mauve, and will likely prompt cries of "anti-Catholic bigotry!" to ring forth from conservative press conferences. And yet an honest look at the Church's statements on the special responsibility of Catholic public officials to uphold Church teaching on abortion must conclude that they do not exempt officials in judicial positions.
The roots of the Church's efforts to influence the decisions of Catholic public officials on the issue of abortion can be traced back to the early 1970s, when the Church was struggling to define its post-Vatican II role as a more public institution at the same time that the Roe decision made abortion a federal issue. The combination of specific Catholic teaching on abortion, the bishops' new mission to communicate such teaching to the world, and external efforts to liberalize abortion laws was a provocative one. Within days of the Roe decision, the sitting president of the National Conference of Catholic Bishops, Cardinal Krol of Philadelphia, condemned the decision as "bad logic and bad law" and proclaimed it "an unspeakable tragedy for the nation." In quick succession, the NCCB issued a statement calling passage of a pro-life constitutional amendment "a priority of the highest order," established the National Committee for a Human Life Amendment, and sent four cardinals to testify before a Senate subcommittee on the issue of constitutional amendments.
This strategy of making examples of Catholic politicians was codified in a way in the 1998 NCCB statement "Living the Gospel of Life." The bishops did not mince words: "Catholic public officials who disregard church teaching on the inviolability of the human person indirectly collude in the taking of innocent life." In an ominous note bordering on a spiritual threat, the bishops wrote, "We urge those Catholic officials. to consider the consequences for their own spiritual well-being, as well as the scandal they risk by leading others into serious sin." Catholic public officials are appropriate targets of attention and pressure, they explained, because their high-profile status puts them in a position to influence ordinary Catholics. They have a special responsibility to be model Catholics and to uphold the Church's teaching.
This is the logic that some Catholic officials have continued to apply when arguing that pro-choice Catholic senators should not "consider themselves Catholic." But if Catholic politicians are considered prominent models in the community, why not Catholic judges? Justice Anthony Kennedy weighed in with the majority in 1992 when Casey v. Planned Parenthood reaffirmed the legality of abortion. Surely his actions had no less impact on abortion politics than the votes of Ted Kennedy on abortion legislation. Why, then, has the Church not expanded its coercion campaign to the judiciary as well?
Perhaps for the same reason that conservative Catholics dogged Kerry last year but appeared not to notice when the Republican Convention featured three pro-choice Republicans-Rudy Giuliani, George Pataki, and Arnold Schwarzenegger-in prime-time speaking slots. Perhaps for the same reason that the injunction for Catholic politicians to uphold Church teaching does not extend to issues such as welfare or poverty or war or the death penalty. The bishops are political men. Their political involvement extends only as far as they can get away with. So they recognize that seeking to influence the votes of political representatives is on an entirely different plane from seeking to do the same with judges.
After all, the logic behind activities such as the Justice Sunday gatherings is that the judiciary has been antifaith-what we need to do, so the argument goes, is make sure that judges are simply neutral to people of faith. But if bishops tried to insist that Catholic judges have a responsibility to rule in certain ways, that would be a promotion not of a neutral judiciary, but of a sectarian judiciary. If voters feel an elected representative bases his decisions too much on religious beliefs, they can kick him out of office. Most judges, however, are not elected but appointed, and could not be removed if citizens believed them to be inappropriately relying on religious tenets instead of the law.
All of which puts the American Catholic Church in a difficult position. The conservative bishops face two unappealing options. They can throw their weight around by trying to interfere with judicial rulings and risk a public backlash. Or they can do nothing and reveal their policy for dealing with Catholic public officials for what it is-a political, partisan tactic.