. . . I’ve been telling reporters who call that a Catholic judge is obliged to rule according to the Constitution, not the teachings of the Church. At least one reader is distressed by my reported statement that a Catholic judge who ruled on the basis of the Church’s teaching would be violating the Church’s teaching. Did I really say that? And, if so, how do I square that with the argument that religion should not be excluded from law and public life?
Yes, I said that, and it squares quite nicely. A judge is solemnly pledged to uphold the Constitution. With very few exceptions, this comes down to determining whether a specific law is constitutional. The judge’s moral duty—whether he be Catholic, Protestant, or atheist—is to make that determination honestly, conscientiously, and in light of the facts of the case before him. No matter how restrained and modest may be a judge’s understanding of his task, there are instances when moral judgment comes into play. His decision will then be influenced by natural law, which is not a peculiarly Catholic doctrine. The Catholic Church has been a defender of natural law, but an understanding of natural law is firmly grounded in the American founding, and therefore part of the original understanding of the Constitution. It is, for example, a matter of natural justice, and not a peculiar teaching of the Catholic Church, that it is always wrong deliberately to kill an innocent human being.
We have four Catholic justices, and may soon have five. They are justices not because they are Catholic but because they are—with the exception of Kennedy—originalists. They know they are not legislators. Legislators are free to bring any consideration they wish—philosophical, theological, ideological, whatever—to bear on their decisions. Judges are not. The vigorous reassertion of this understanding holds high promise for remedying the judicial usurpation of politics.
Fr. Neuhaus reveals that Alito, like Scalia, is a "careful reader of First Things". Good taste in periodicals. =)