by Go here for Scot Powe’s review of Donald Drakeman’s Church, State, and Original Intent (Cambridge). The book is first-rate, in my view. (Full disclosure: I blurbed the book for the press.)
After a generally helpful review, Powe concludes, oddly, with a clunky pivot to the observation that “[t]hree years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion” (I don’t think it did, but never mind) and a reminder that Geof Stone had suggested, controversially, that the Court’s decision might have something to do with the fact that the five justices in the majority are Catholic. (I responded to Geof here.) Powe then concludes:
A number of conservative Catholic legal scholars have shown support for Drakeman’s conclusion. It is conceivable that a Supreme Court Justice might rely on Drakeman (with or without citation) for a Catholic interpretation of the Establishment Clause; and while decades ago Cardinal Francis Spellman had to lobby President Eisenhower to add a single Catholic to the Court (Ike picked William Brennan, who voted as a separationist and favored Roe v. Wade), six of the nine Justices are now Catholic. Church, State, and Original Intent is not priced for a wide readership, but if it gets the right five readers, it could have a major impact.
There are, it is true, a number of “conservative Catholic legal scholars” (and many others) who agree (as I do) with Prof. Drakeman that the Establishment Clause was misinterpreted, in the parochial-school cases of the 1970s and 1980s, as requiring strict “no aid” separationism. But, this agreement does not make Drakeman’s interpretation a “Catholic” interpretation, and a Catholic justice who voted in accord with Drakeman’s interpretation would not be adopting (or imposing) a “Catholic” interpretation. Nor would the fact that a Catholic justice (or legal scholar) embraced it make the interpretation “Catholic.”
To be sure, there are “Catholic” ways of thinking about religious freedom and church-state relations. For a good start, go here. Or here. Or, if you want to help my SSRN count, here.
Powe’s review seems to me a bit disjointed. The decision which provokes his (and Geoff Stone’s) suspicion of a Catholic influence on Supreme Court jurisprudence isn’t even an establishment clause case, but rather an abortion case. I can understand the suspicion, but a review of a book about the historical meaning of the establishment clause seems an odd place to raise it. Still, the fact that a reviewer feels moved to take that sort of awkward detour is suggestive of something. I wish Powe and others who share his concern would take the trouble to articulate it in a more open and developed way– to elaborate on the connections they see between Catholicism and various areas of constitutional law. (The elaboration might give a more accurate description of what Justice Scalia has said about the connection between his religious beliefs and his constitutional interpretations, by the way.) That sort of articulation might give us something interesting and important to reflect on.