Supreme Court justices at Red Mass, and Pope Francis’ address.

The Only Faith That Should Matter at the Supreme Court Is Faith in the Constitution

The Only Faith That Should Matter at the Supreme Court Is Faith in the Constitution

The law, lawyers, and the court.
Oct. 5 2015 4:48 PM

Pope Francis’ Message Isn’t Echoed at Red Mass

A reminder that the only faith that should matter at the Supreme Court is faith in the Constitution.

Chief Justice John Roberts Red Mass 2015
Chief Justice John Roberts speaks with Cardinal Donald Wuerl, archbishop of Washington, as he departs from the Cathedral of St. Matthew the Apostle after attending Red Mass on Oct. 4, 2015.

Photo by Joshua Roberts/Reuters

For anyone who was counting along at home when Pope Francis gave the first address by a leader of the Catholic Church to a joint meeting of the U.S. Congress last month, only four Supreme Court justices showed up (Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, and Sonia Sotomayor). Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, all Catholics, did not attend, which generated some buzz on the Internet. Their absence was not really all that surprising given their tendency to skip joint sessions in general. (Scalia has avoided them for almost 20 years, dismissing them as a “childish spectacle” to which he doesn’t want to “lend dignity.”)  

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Still, there was some inevitable speculation that some of the same Catholic justices who do not support the pontiff’s stance on capital punishment, among other things, were certainly relieved not to be caught standing and applauding when the pope pressed for “the global abolition of the death penalty.” Scalia, for instance, has long held the view that “death is no big deal.” It would have been awfully awkward to be standing in the Capitol as the pope said:

I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.
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All the church/state/pope/court awkwardness only ramped up with the news of Sunday’s Red Mass, the service that marks the unofficial start of the new court term. The Catholic Mass, which dates back to Europe in the Middle Ages, has been celebrated since 1953 at the Cathedral of St. Matthew the Apostle. This year’s Mass attracted a different set of justices from the pope’s address: Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Stephen Breyer were all in attendance.

The Red Mass has generated criticism over the decades, in part for the extent to which it enmeshes the high court with church affairs, and some members of the Supreme Court also have their qualms. Tony Mauro, who covers the service every year, noted Sunday that Ruth Bader Ginsburg stopped attending Red Mass years ago when she was forced to listen “to a sharply anti-abortion sermon that offended her.”

For American fans who swooned at Pope Francis’ message to Congress, which included pleas for an end to income inequality, environmental devastation, and the death penalty, news last week that he had a brief audience with Kim Davis, the Kentucky clerk who went to prison for six days rather than issue marriage licenses to same-sex couples, sent them into a tailspin. So did the fact that he met with the Little Sisters of the Poor, the nuns who have taken the Obama administration to court over the accommodation provided them under the Affordable Care Act’s contraception mandate.

Still, pope watchers then took heart from Francis’ attempt to intercede in the scheduled execution of Kelly Gissendaner, a Georgia woman who was killed last week for planning the murder of her husband. He also attempted to stop the execution of Alfredo Prieto, which went forward in Virginia last week. The pope also sent a letter to Oklahoma’s governor, Mary Fallin, asking her to commute the death sentence of Richard Glossip, whose execution was halted due to a screw-up in procuring the correct lethal injection substances.  

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It seems clear that, between the pope and the Red Mass, the former has cast a much larger shadow across the political and legal landscape this fall. Indeed, the Red Mass appeared to be fairly tame in comparison to the pope’s urgent rhetoric. As Mauro notes, “This year’s sermon steered clear of most hot-button issues,” although the matter of religious freedom and the enforcement of nondiscrimination laws—as personified in the tangle between Kim Davis and the courts this summer—was certainly invoked. While Davis herself was not mentioned during the service, Atlanta Archbishop Wilton Gregory cautioned listeners that the interpretation of the nation’s laws “always must include the very basic right to religious freedom.”

A second account of the Mass suggests that there was also a reference to abortion in one of the sermons, when Cardinal Daniel DiNardo said that people represented by lawyers are, “more than clients. ... In some cases the clients are voiceless for they lack influence; in others they are literally voiceless, not yet with tongues and even without names, and require our most careful attention and radical support.”

Meanwhile, abortion protesters demonstrated outside during the Mass.

Many court watchers have noted in recent days that in a Supreme Court term loaded up with capital punishment cases, and with a court clearly at a crossroads about the efficacy of the death penalty, the Catholic Church’s views on the death penalty must be having some kind of impact. They are hopeful. I doubt it. American Catholics do not share Pope Francis’ views on capital punishment for the most part, and even the Supreme Court’s liberals would not have gone as far as the Pope went in calling for its abolition. Only one justice—Stephen Breyer—would have voted to stay Glossip’s execution. Only two seem ready to say it’s probably unconstitutional.

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If you are hopeful that the court might somehow soften on capital punishment as a result of Pope Francis’ dramatic intercession, you should probably also be OK with the pope’s solicitude for Kim Davis, or the Little Sisters of the Poor, or his continued opposition to abortion, and all the ways that might rub off on the justices. No? Is there a difference, beyond our own policy preferences?

And that’s why the strange spectacle of American liberals falling crazy in love with Francis and hoping he will help stop American executions is not all that different from American conservatives who delight in the references to religious liberty and abortion in the Red Mass. Both are blurring religious doctrine with legal constraints, and in both cases, it ranges from awkward to unseemly.

And it’s no fair saying that this has nothing to do with the pope because the Catholic justices disagree with him on the important issues anyway. The fact is, the single best piece of evidence we have about the need to separate American constitutional law from religious law is Pope Francis and all the ways his gorgeous humanitarian razzle-dazzle led us to believe that maybe a little bit of religion is OK so long as it conforms to our politics.

I fell in love with Pope Francis a little myself last month, and we could all wish to emulate his spiritual values and priorities when it comes to poverty, equality, the environment, criminal justice, and other vital policy areas. But as the court begins its journey into a term in which religion and civil rights collide, let’s try to bear in mind that even when the Supreme Court is built to look like a sacred space, the only thing that should matter is faith in the Constitution.