From Roper to Rosie to . . .

For the next few weeks, I’ll be be guest-blogging over at CLR Forum, the blog associated with the Center for Law and Religion at St. John’s University School of Law. Some of the posts will discuss various aspects of a paper I’ve been working on that I recently presented at a law and religion conference at Pepperdine. I’ve reproduced my first CLR post below, and will continue to cross-post during my guest stint there.

For some time now, I’ve been kicking around a draft paper about the Catholic Justices on the Roberts and Rehnquist Courts. Its genesis was a somewhat jarring liturgical experience, when the Prayers of the Faithful included a prayer of thanksgiving for a Supreme Court decision interpreting the Eighth Amendment that was authored by one Catholic Justice (Kennedy), with a dissent authored by another Catholic Justice (Scalia) and joined by yet another (Thomas). Over time, the paper morphed into a response to what one might think of as the Rosie O’Donnell or Geoff Stone view of the Catholics on the Supreme Court. (See here, around the 4:45 mark, for O’Donnell; here for Stone.) Reconceived in such a manner, however, I later realized that the paper had drifted in the wrong direction, for it is difficult to say something new, true, and interesting in direct response to a position already widely believed to be old, false, and uninteresting. But the lines of inquiry I had been pursuing may yet yield some insights into the Roberts Court’s approach not only to the sorts of issues that draw the institutional interest of the Catholic Church, but also to constitutional (and related statutory) decisions more generally.

The principal methodological move that I have made in developing the paper has been to consider the views of the Justices in conjunction with the amicus curiae briefs filed on behalf of the United States Conference of Catholic Bishops over the past twenty-five years (from the beginning of the Rehnquist Court in 1986 through the first six years of the Roberts Court, ending in spring 2011). The personnel changes over the last quarter-century on the Supreme Court make direct comparisons of Justices difficult, but the set of cases is large enough to yield interesting insights that I aim to share in my next few posts.