Obstare Decisis

In the US, hostility towards Roman Catholics goes back to the Nativist “Know Nothing” movement of the 19th Century, to “No Irish Need Apply” signs and to Democrat Al Smith’s humiliating defeat in the 1928 presidential election; this hostility even continued into the post WWII period with, for example, warnings of a Catholic plot to take over America from widely read author Paul Blanshard, American Freedom and Catholic Power (1949).  (By today’s standard for vitriol, Blanshard’s book reads like a gentlemanly agreement to disagree.)

So, the current 6-3 strongly conservative Supreme Court majority composed of 5 Roman Catholics and 1 Catholic become Episcopalian is an extraordinary phenomenon in a land with such a long history of anti-Catholic fervor; counting Gorsuch and the liberal Sotomayor, 7 of the 16 Catholics ever to serve on the Court are on the Court today – where are the WASPs of yesteryear?

However, Catholics are not new to the Supreme Court – the first Catholic on the Court was Chief Justice Roger Taney, the author of the infamous Dred Scott decision that drove the country to Civil War. But not all Catholics on the Court have been reactionaries; Justice William Brennan provided intellectual leadership for the progressive Warren Court; sitting Justice Sotomayor is also a Catholic in the progressive tradition. And Catholicism itself has a long tradition of social consciousness rooted in the Sermon on the Mount and the Seven Corporal Works of Mercy – hospitals, orphanages, schools, … .

However, the Court has been dominated by right-wing Catholics since 2006 with Justice Alito’s joining Justices Roberts, Thomas, Scalia and Kennedy. Today Roberts, Thomas and Alito are still on the Court and they have been joined by Barret, Kavanaugh and Gorsuch – these last two even overlapped for two years at Georgetown Prep, the elite Jesuit high school in Washington D.C.

Traditionally, though, Catholics were working-class: well represented in the Democratic Party and in the labor movement. But things were changing by the mid 20th Century. And War II highlighted how important a population the Catholics in America had become – one critical to the war effort; and this was reflected in Hollywood movies: imagine Cary Grant and Ginger Rogers playing Irish Americans Pat O’Toole and Katie O’Hara in Once Upon a Honeymoon, the 1942 comedy/drama about the lead-up to the War in Europe. In the après-guerre, the economic situation of American Catholics was improving. Returning soldiers took advantage of the GI Bill in the 1940s and again in the 1950s after the Korean War; the level of education of Catholics was becoming superior to that of Protestant America. Families moved from the inner cities to the booming suburbs – the Catholicism of immigrants gave way to that of a new economically prosperous confident optimistic mainstream congregation.

And then there was the threat of Atheistic Communism that dominated both foreign policy and domestic politics. Catholics became enthusiastic Cold War warriors – for example, there was the Knights of Columbus’ successful campaign to insert the phrase “under God” into the Pledge of Allegiance (1953). Catholics weren’t alone, though, in deconstructing the gap between Church and State: not to be left behind, the US Congress passed a bill changing the traditional US national motto from E Pluribus Unum to In God We Trust, a bill that was signed into law by President Eisenhower in 1956. Catholics played a role in zealous witchhunts giving rise to the sorry phrase “McCarthyism”; they were the driving force behind Red Channels, an organization that specialized in blacklisting radio and television people.

As social issues such as birth-control and abortion came to the forefront, American Catholicism was driven further to the right. And Catholics took over the intellectual leadership of the conservative movement in the US. William Buckley and Russel Kirk wrote influential books – God and Man at Yale (1951) and The Conservative Mind (1953), respectively. Buckley launched the National Review (1955) and brought Kirk on board.  Buckley’s libertarian, militaristic brand of conservatism replaced the isolationist, communal outlook of traditional WASP conservatives like the Tafts, the Cabots and the Lodges – Adieu Edmund Burke, Bonjour Ayn Rand.

The election of John F. Kennedy in 1960 made the integration of Catholics in America official.

The next chapter in the move towards a Catholic dominated reactionary court was the creation of the Federalist Society in 1982. The founding group was composed of conservative law students from Harvard, Yale and the University of Chicago.  The Society functions as a pressure group and debating society dedicated to placing right wing ideologues in key positions throughout the justice system. Richard Nixon had tried to place some conservative Southerners on the Supreme Court after the Dixiecrats had turned Republican in reaction to the successes of the Civil Rights Movement; not surprisingly candidates like Haynsworth and Carswell were considered “good-old-boys” and  just not impressive enough for confirmation. But Catholics screened by the Federalist Society would fill this void. The kind of Court we have today begins with the nomination of University of Chicago Law Professor and Federalist Society icon, Antonin Scalia, to be an Associate Justice by Ronald Reagan in 1986; Scalia was approved by the Senate in an impressive 98-0 vote and he joined the conservative Rehnquist Court.

Fast forward to 2005-6 when things pick up steam with the appointments of John Roberts and Samuel Alito to the Court; now there was a Catholic “conservative” majority – the others being Scalia, Thomas and Kennedy.

With a Catholic majority, the persuasive Scalia was able to push an already conservative Court even further to the right and to play a critical role in some earth-shaking decisions. His announced methodology was based on originalism and textualism, a casuistic approach to the law promulgated by the Federalist Society: to wit, the Constitution is not a living document and it should be interpreted using the sense the text would have had when it was written.

But in actuality originalism turned out to be license to turn legal analysis into a form of Medieval Scholastic theology – worse, one where in the end the meaning of a text would be what the jurist decided for him or herself. The Middle Ages saw the rise of a sophisticated and brilliant Catholic school of rationalist thought, known as Scholasticism. It covered areas of philosophy, theology and logic with important contributors from all over Western Europe – such as Duns Scotus Erigena from Ireland, Duns Scotus from Scotland, William of Occam from England, Albertus Magnus from Germany, Ramon Lull from Spain, Abelard and Buridan from France, and the Angelic Doctor, Thomas Aquinas from Italy. In his History of Western Philosophy, Bertrand Russell admires the thoroughness and force of Thomas Aquinas’ arguments but cautions that Aquinas relies too much on the power of words themselves at the expense of observation and facts.

Indeed, this use of the magic of words is seen in Scalia’s mind-bending majority opinion in District of Columbia v. Heller (2008). He, abetted by the four other “conservatives,” put gun manufacturers before people by replacing the standard interpretation of the 2nd Amendment that went back to Madison’s time with a dangerous one, cynically appealing to originalism by claiming the authority to speak for Madison and his contemporaries.

The Second Amendment reads

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The phrase “A well regulated Militia, being necessary to the security of a free State” is a grammatical construction known a nominative absolute, a free-standing phrase that establishes context for what follows. (A common example is “All things being equal.”) But Scalia cavalierly dismissed this phrase as meaningless – imagine a so called originalist disrespecting James Madison’s carefully crafted prose. Moreover, there was no compelling legal reason to play games with the accepted meaning of the 2nd Amendment – if the over 200 years of interpretation of the wording of the amendment isn’t enough, if the term “militia” isn’t enough, and if the term “bear arms” isn’t enough to link the amendment to matters military in the minds of the framers, one can consult James Madison’s original text:

    “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” [Italics added].

The italicized clause was written to reassure Quakers and other pacifist religious groups that the amendment was not forcing them to serve in the military, but it was ultimately excluded from the final version for reasons of separation of church and state. This clause certainly indicates that the entirety of the amendment, in Madison’s view, was for the purpose of maintaining militias. Note too that Madison implies in this text and in the shorter final text as well that “the right to bear arms” is a collective “right of the people” rather than an individual right to own firearms. You don’t “bear arms” to go duck hunting.

The radical ruling in Heller by the five “conservative” justices has scuttled all attempts at gun control, enriched gun manufacturers, elevated the National Rifle Association to the status of a power-broker and made the Supreme Court complicit in the wanton slaughters of so many. The current spate of school shootings, random murders, racist and anti-Semitic killing events is just out of control – and nobody will do anything about it. It has also created the watchword “Second Amendment rights” and legitimized militia movements. Tragically, Scalia’s originalism has created a license to kill, kill, kill. Hopefully, someday Heller will be declared “wrongly decided.” But, in the meantime, the current Court will soon come down with a decision on a NY State law that requires a permit to carry a concealed weapon which will likely only make matters worse (New York State Rifle and Pistol Association v. Bruen).

Scalia/Scholastic style wordcraft is entrenched in the Roberts Court and its solid “conservative” Catholic majority.  This Court has overturned campaign finance laws passed by Congress and signed by the President by summoning up an astonishing, ontologically challenged version of the legal fiction that corporations are “persons” and imbuing them with new First Amendment rights (Citizens United v. FEC 2008). Some context: corporations are treated as legal “persons” in some court matters, basically so that they can pay taxes and so that the officers of the corporation are not personally liable for a corporation’s debts. But, there was no compelling legal reason to play Dr Frankenstein in Citizens United and create a new race of corporate “persons” by endowing corporations with a human-like right to free speech that allows them to spend their unlimited money on U.S. political campaigns. Citizens United already appears on several lists of “worst Supreme Court decisions” such as the one compiled by TIME magazine. The immediate impact of this decision has been a further gap between representatives and the people they are supposed to represent; the political class was at least somewhat responsive to the voters, now they are only responsive to the donor class.

These five justices didn’t stop there.  Along the way, they made a mockery of stare decisis in several cases such as Gonzales v. Carhart (2007), Hem v. Freedom from Religion Foundation, Inc. (2007) and others; and even just now in Shinn v. Martinez Ramirez.

In Shelby Counter v. Holder (2013) they ignored the separation of powers as they gutted the Voting Rights Act of 1965 –  ignoring the obvious and declaring that there was no longer a need for federal monitoring of voting laws in states with a history of voter suppression: a claim dramatically disproven by incessant machinations since by governors and state legislatures. Adding insult to injury, five years later they steamrolled over the work of a lower court in the Texas Redistricting Case (Abbot v. Perez, 2018) – arrogating decision power to themselves, eliminating any vestige of the Voting Rights Act.

They breached the separation of Church and State in Burwell v. Hobby Lobby Stores (2014) by elevating the personhood of corporations yet further and ascribing to them “religious interests.” Here the magic words were “closely held” business, a phrase which restricted the scope of the ruling to privately owned companies in a dance around the establishment clause of the First Amendment. In Espinoza v. Montana Department of Education (2020) and in Carson v. Makin (2022), they continued to gnaw away at the separation of Church and State by ruling that states cannot exclude religious schools from scholarship and tuition programs.

Simply put, these decisions constitute a real threat to Democracy in America. And today things look even worse, what with the new line-up of six “conservative” justices, the five right-wing Catholics (Roberts, Thomas, Alito, Kavanaugh, Barret) plus the right-wing Catholic turned Episcopalian (Gorsuch). And they are not wasting time. Already they are in the process of inflicting division and chaos on the country with the expected ruling in Dobbs v. Jackson Women’s Health that will likely overturn Roe v. Wade in yet another repudiation of stare decisis. The new stage direction is “Exit stare decisis” and the new legal expression for this sabotage of the legal system is then obstare decisis, replacing stand by decisionswithoverturn decisions.”

For the record: In Latin, for the verbs stare and obstare the complement is in the dative case – instead of the usual accusative case of a direct object. Decisis is the dative plural of the past participle of the verb decido and means “the things decided.” So stare decisis literally means “to stand with the things already decided” and obstare decisis literally means “to oppose the things already decided.” As usual the Latin is much more concise, one of its distinguishing features.

The leaked draft of Alito’s write-up of the impending decision in Dobbs brings us right back to the 13th Century; therein he shows his Scholastic chops and appeals to Henry de Bracton’s Latin treatise on the Law; in fact, it was de Bracton, a contemporary of Thomas Aquinas, who introduced the Scholastic theory of Natural Law into English law which now in the American legal system allows for an appeal to a higher authority: in principle, so long as it does not contradict the Constitution. Ominously, Natural Law is a concept especially dear to Justice Thomas. With these right wing Supreme Court judges we should rightly be afraid: already Catholic dogma on birth control (Hobby Lobby) and soon abortion (Dobbs) will have made its way into American legal reasoning. Moreover, De Bracton was a priest in the Catholic Church – an archdeacon, the rank just below a bishop – and he thought of the legal profession as a priesthood: “Ius dicitur ars boni et aequi, cuius merito quis nos sacerdotes appellat” (Law is called the art of the good and the just, an art whose priests we merit to be called). Armed with the Natural Law and the principle of obstare decisis, this 6-3 majority of relatively young judges in their priestly sacerdotal robes will in all likelihood continue to distort American values for some time to come.

One thought on “Obstare Decisis

  1. Just one comment: The proper noun, Catholic, when preceded by the proper adjective Roman, denotes one who is nominally a member of that particular branch of Catholicism in particular and of Christianity in general.

    So, when you say: “[T]he current 6-3 strongly conservative Supreme Court majority composed of 5 Roman Catholics and 1 Catholic”: Well that is almost as non-descriptive of those people as calling them (if they were) “New Yorkers.” What do I mean.

    When one looks at polls overall and then at the breakdown of those numbers into the religious affiliations of those replying — Catholic, Christian, Muslim, etc. and then into sub-examples of each (e.g. Evangelicals), it is easy to see how little the beliefs of a genus group, taken as a whole, tells one about the position of devotees of the orthodox version thereof. “Peaceful Muslims,” for example, might best describe someone practicing Islam as would a C and E Catholic, not an orthodox one (C and E Catholics are those who attend Mass only on Christmas and Easter).

    When one breaks a group of “Catholics” into weekly-Mass-attending and those doing less-than-that, very different poll numbers arise from each on all manner of issues. And, further (also worse), even when you look closely at those subdivisions, say “weekly-Mass-attending Catholics,” you can frequently see the polled-opinions placing near half or more of those so identifying at 180 degree variance from orthodox Catholic teaching.

    Sadly, Catholicism (and we are not alone), also has priests and prelates who fall into such orthodox and heterodox opposites on some of the most fundamental, clear, and non-negotiable moral issues (e.g the intrinsic evil of abortion and sodomy, to give two current Church-destroying opposites.)

    Bottom line: Citing “Catholic” as the persuasion of 6 justices (including one who abandoned ship) is near, in a word….meaningless. But it does make us Catholics look like bad guys who shouldn’t be so powerful. Small cross to bear for Him Who bore His for us.

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