Judicial Philosophy

June 24, 2010

[What follows is an essay I wrote a few weeks ago in response to the speech at the 2010 Harvard Commencement.  The caveat from the About this site … page applies fully here.]

Judicial Philosophy from a Catholic Perspective: A Response to Justice Souter

June 8, 2010

Introduction: Two judicial philosophies

Retired Supreme Court Justice David Souter, in his recent speech[1] at Harvard’s Commencement, subjected the judicial philosophy of Chief Justice John Roberts and other conservatives to what a New York Times editorial called a “brilliant demolition.”[2] Roberts had briefly summarized this philosophy during his 2005 nomination hearings when he compared the judge’s role to that of an umpire, saying, “It’s my job to call balls and strikes and not to pitch or bat.”[3] Justice Souter advanced an alternative judicial philosophy that emphasizes instead the importance of subjective judgment in choosing between what he called the “many goods,” sometimes conflicting, that the Constitution “grants and guarantees.”

I will argue that Justice Souter’s judicial philosophy – that is, his methodology for resolving philosophical or moral conflicts in judging cases – is more correct than that of Justice Roberts, but only with an added qualification that I imagine very few people would be willing to accept (including Justice Souter himself).

First, the problems with Justice Roberts’s philosophy should be addressed.  Justice Souter criticized the philosophy relatively indirectly, by giving examples of cases in which the “balls and strikes” approach could not reasonably be applied.  It is also possible to give a more theoretical demonstration of why the comparison of a judge with an umpire is inaccurate, and I will attempt to do that briefly here.

The comparison is inaccurate because the rules an umpire in baseball has to “apply,” to use Justice Roberts’s word, are much simpler and more objective than the rules in the Constitution.  The strike zone is defined very specifically by the rules of Major League Baseball; the home plate umpire’s role is merely to judge, in each case, whether or not the pitch thrown crossed home plate within that zone.  The umpire analogy would only be apt if MLB had merely given certain guidelines as to the strike zone without defining it fully (e.g. “The batter shall not be required to swing at a pitch above his chin,” thus leaving open to the umpire’s interpretation the region between the batter’s chin and belt buckle).

In other words, the kinds of issues that come to the Supreme Court, on the other hand, or at least those that, in Justice Souter’s words, “raise the national blood-pressure,” are much less clear-cut than the question of whether a pitch was over the plate or a little off the corner.  Issues such as the controversies over abortion and homosexuality simply cannot be resolved by a strict reading of the Constitution, because if you read the Constitution strictly, you will not find these issues.  Nowhere in the Constitution does it say, “Abortion shall be defined as xyz, and shall be prohibited in cases abc but permitted in def.”  Consequently, as Justice Souter observes, judges are often obliged to weigh various goods promised by the Constitution against each other and choose the one they deem best.

The real controversy

The “balls and strikes” philosophy, then, is, as the Times editorial rightly calls it, “simplistic.”  However, the dispute between proponents of “balls and strikes” and “judicial activism” is actually not the real issue.  Those who complain about “judicial activism” most often do so primarily because they are opposed on moral grounds to the decisions that the “activism” has led to.  It is highly unlikely that if Roe v. Wade were overturned tomorrow, conservatives would mount a nation-wide protest against the “activism” so blatantly evident in such a decision.

The real controversy lies in a conflict of first principles: a conflict of philosophies.  Justice Souter is correct, as far as he goes, in saying that “Judges have to choose … on the basis of meaning …We can still address the constitutional uncertainties … by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.”  But it is evident that an interpretation of constitutional law based along these lines will depend a great deal on the personal philosophies of the individual justices (regardless of whether these philosophies are held consciously or unconsciously, explicitly or implicitly).  To take a brief example: the First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  It is difficult to see how an atheist or agnostic could interpret and apply that clause in the same way as a Catholic, or another actively religious person.  The atheist and the Catholic will, as a consequence of the divergence in their personal philosophies and religious beliefs, have very different ideas of what “respecting an establishment of religion” means, and of what “prohibiting the free exercise thereof” means.

If, then, we accept that the personal philosophies of the individual justices are of essential importance for interpreting the Constitution – and, consequently, we subscribe to Chesterton’s observation that “the most practical and important thing about a man [and, a fortiori, a judge] is his view of the universe”[4] – the next question becomes, are any of these philosophies more valid than others?  How does one resolve the philosophical conflicts that will invariably occur under this model?

This is where I part company with Justice Souter.  To the extent that he addresses this issue in his speech, he equates his judicial philosophy with uncertainty, evidently because he assumes that philosophical conflicts cannot be conclusively resolved.  In the words of Justice Oliver Wendell Holmes, which Justice Souter quotes with approval, “Certainty generally is illusion and repose is not our destiny.”  The underlying assumptions of this statement may be uncovered by the juxtaposition of a quotation giving a different perspective on repose: “Thou hast made us for Thyself, O Lord, and our hearts are restless until they rest in Thee.”  The author of those words is St. Augustine, Bishop of Hippo and Doctor of the Catholic Church.[5] He tells us that repose can, in fact, be one’s destiny, for it may be freely chosen by anyone who wishes to do so: but it can be found only in God, and nowhere else.

Justice Souter equates his judicial philosophy with uncertainty because his judicial philosophy is necessarily based upon his personal philosophy, and his personal philosophy does not include a God who can give absolute certainty or rest.  The same is true of the philosophy espoused by the Times editorial, which goes even further by equating certainty with “rigid neutrality” and calling it a “hindrance to proper decision-making.”  I agree that “rigid neutrality,” if it were actually possible (which it is not), would be a “hindrance to proper decision-making” – but is not associated with certainty.  On the contrary: applying one’s own philosophy to court decisions is in fact the only way that a correct and “certain” decision can be reached – with the essential provision that it be the correct philosophy.

The proposed qualification

One of my own first principles is that objective truth does exist, and that consequently there is a correct or true philosophy: that is, one that most accurately corresponds with reality.  Accordingly I part company here as well with moral relativists, or those who hold that there is no objective truth, or that it cannot be known by us.  I cannot speak from their perspective.  I write as a Catholic, who holds by a faith based on reason that the Catholic Church has been instituted by Jesus Christ, God Himself, to be the voice of God on earth, and that consequently its dogmas are true: that is, they correspond to objective reality.  Further, they must be consulted if questions of morals and philosophy are to be correctly decided.  What I can do, then, is provide a Catholic perspective on Justice Souter’s judicial philosophy: that is, show how his subjective judicial philosophy works if it is applied by a judge who “searches for meaning” and “uses his reason” with a correctly formed Catholic conscience.  This is the qualification to Justice Souter’s philosophy that, I suggest, is the only way of making it an effective and just way of deciding difficult questions.

In providing this perspective I will take the following approach: first, I will consider the abstract issues raised by Catholic teaching on human law.  I will then apply Justice Souter’s philosophy, modified as necessary by Catholic teaching, to a test case to demonstrate its effects, and finally apply it to Justice Souter’s two sample cases.

Catholic and modern secular teaching on human law

First, then, we must consider the U.S. Constitution from a Catholic perspective.  This means we must view it not as an absolute entity, but as human law that stands in a certain relationship to divine law.  The Catholic teaching on the relationship between human and divine law is constant and unequivocal.  It is expressed succinctly by Pope Leo XIII in his 1888 encyclical Libertas præstantissimum: “The binding force of human laws is in this, that they are to be regarded as applications of the eternal law, and incapable of sanctioning anything which is not contained in the eternal law, as in the principle of all law … where a law is enacted contrary to reason, or to the eternal law, or to some ordinance of God, obedience is unlawful, lest while obeying man we become disobedient to God.”[6] This teaching, which dates back to the Apostles (cf. Acts 4:19, 5:29) has been reaffirmed more recently by Popes John XXIII and John Paul II (cf. the latter’s encyclical Evangelium vitae,[7] 72).

The basis of this teaching is the even more basic principle stated by St. Paul in his Epistle to the Romans: “There is no power but from God” (Rom 13:1); and this, in its turn, is simply a logical expression of the Creator-creature relationship.  The Catholic faith teaches that God has created everything that exists from nothing; accordingly, there can be no power except from Him, Who is all-powerful.  In another formulation, Christ is King: not only over individuals, but over societies and their rulers as well.  As St. John writes in the Apocalypse, Christ is “the prince of the kings of the earth” (Apoc. 1:5, “princeps regum terræ,” “ὁ ἄρχων τῶν βασιλέων τῆς γῆς”).

This doctrine sharply contradicts the dogma of modern secular society that all power is from the people.  The basic foundation of this dogma is the Declaration of the Rights of Man published by the French revolutionaries in 1789, whose sixth article begins: “Law is the expression of the general will.”  This is the complete antithesis of the Catholic doctrine on human law just stated; it is also the underlying assumption behind all modern secular society, whether or not this is recognized.[8]

The truth of this statement can be seen from the respective effects of the two antithetical doctrines on the citizens living under them.  The Catholic writer and historian Hilaire Belloc notes that from the secular perspective, the ideal or typical citizen “must be free to act on his individual judgment of morals, must reach conclusions on all matters by that private judgment, but must accept the coercion of any law whatsoever when it has been decided by a majority of such individual citizens so concluding.  For instance, of a hundred citizens in a State, forty-nine, each thinking it out for himself, decide that each may, without moral wrong, eat beef; fifty-one decide that beef is unholy and must not be eaten.  The fifty-one may morally coerce the forty-nine and forbid them beef (or beer, or coffee, or whatever it may be).”[9]

In contrast, Belloc says, the ideal Catholic citizen will “neither submit all things to separate and individual private judgment, nor will he necessarily and always obey as a moral duty laws arrived at by the mechanical process of majorities.  On a multitude of things – e.g. the nature and obligations of marriage – he will accept established [Catholic] doctrine and prefer it to any possible conclusions of his own limited experience, judgment and powers.  Should a majority order him to act against Catholic morals (as, for instance, by a law compelling the limitation of families) he would refuse to obey it.”[10]

In summary: for the secular citizen, the conclusion of the majority is absolute.  For the Catholic citizen, however, the authority of the Church, as the voice of God, is absolute, and when the will of the majority clashes with the teaching of the Church, there can be no question as to which must be followed.

The responsibilities of those Catholics making and interpreting law are along the same lines, but correspondingly more extended.  As Pope John Paul II writes in Evangelium vitae, “In the case of an intrinsically unjust law … it is therefore never licit to obey it, or to ‘take part in a propaganda campaign in favor of such a law, or vote for it.’“[11] Further: ”There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.”[12] The guiding principle, in short, is that laid down by St. Thomas Aquinas, as quoted in the same encyclical: “An unjust law … ceases to be a law and becomes instead an act of violence.”[13]

The relevance of all this for constitutional law is that for a Catholic, the United States Constitution cannot be treated as an absolute standard of morality, whether in terms of a narrow “historical” framework or viewed through one’s own preconceptions, but must be read and applied in light of the moral teachings of the Catholic faith.  This is because Catholic dogmas are objectively true and have uncontestable authority, since they are revealed by God, and consequently the U.S. Constitution (and laws based on it) have authority only insofar as they conform to those dogmas.

Example: Abortion

A Catholic reading of the Constitution is not only necessary for just judgment; it is also the only way in which any constitutional issue dealing with morals or philosophy can ever be decided conclusively.  If an external, objective moral standard is not applied, the issue of abortion, for example, can be debated on solely constitutional grounds ad infinitum.  This is because the Constitution does not specifically state the point at which life begins, or discuss the question of whether unborn children are citizens or human beings.  Thus each justice and each citizen can bring his own personal philosophy, as Justice Souter advocates, to the debate.  The only way the issue can be conclusively (and correctly) decided is with reference to the divine law, as revealed and taught by the Catholic Church, which states that all abortion, from the moment of conception on, is gravely wrong and can never be tolerated.[14]

A Catholic justice working within the framework of the American Constitution would, after reaching this conclusion, find a way of expressing it in constitutional terms.  For instance, he might invoke the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and apply this to the right to life of a human being, who by Catholic dogma is such from the moment of conception.

Consequently, the true reason Roe v. Wade is an unjust decision is not that it cannot be defended by the Constitution, or that a majority of Americans are opposed to abortion, or that the judges acted ultra vires in overturning existing abortion laws.  The true reason it is unjust is that is is a gross violation of the objective truth, revealed by the teaching of the Catholic Church, that human beings are such from the moment of their conception, and that consequently the prohibition against killing innocent human beings applies to all fetuses.  As a consequence of this decision, the abortion laws of this country are unjust: that is, they are, in St. Thomas’s phrase, “opposed to the natural law,” and therefore, as we have seen, “cease to be laws” and instead become “acts of violence” that must be conscientiously opposed.

There are further ramifications of the Catholic teaching that an unjust law is no law at all, and cannot be obeyed or supported in any way.  To continue with the abortion example: suppose that Roe v. Wade were overturned, and the question of abortion was left to be decided by the states.  Further suppose that in a certain state, a lawmaker preparing to vote on the issue knew that his constituency was solidly in favor of permitting abortion.  According to Catholic morals, this lawmaker would be obliged in conscience to disregard the opinion of his constituency and vote against any law permitting abortion.  In the words of St. Peter and the other Apostles: in the case of conflict, ”We must obey God rather than men” (Acts 5:29).

Even more arresting examples are provided by the English Catholic writer Michael Davies.  Considering several situations that could arise under the current abortion laws, he asks: “By what right can a Catholic policeman arrest those who try to rescue the unborn from abortion?  By what right can a Catholic district attorney prosecute them?  By what right can a Catholic judge convict them?  Let such public officials not protest that they have sworn to uphold the law, because any human law contrary to the eternal law cannot be considered valid by any Catholic.”[15] The answer to each question is simple: by no right.

Justice Souter’s Test Cases: 1. Pentagon Papers (freedom of speech)

Now that the Catholic version of Justice Souter’s philosophy has been applied to a relatively clear test case, we should return to the two examples he used in his speech and see how they are affected by this significant philosophical qualification.

The first case he considered was that of the Pentagon Papers, in which the constitutional issues in conflict were national security and freedom of speech.  As Justice Souter pointed out, the nature of the case required that a preference be given for one of these two issues, and the justices of the court ruled in favor of freedom of speech.  It should be noted, however, that they did so not only as a result of their examination of the evidence at hand, but also as a result of their personal philosophies.

The unequivocally worded right to freedom of speech included in the First Amendment is one of the most famous and one of the most widely-accepted rights granted by the U.S. Constitution. and the justices deciding this case evidently attached great importance to it.  This is evident from the examples they gave of the only circumstances in which this right could be overruled by the government: something like the possible release of the D-Day invasion plans or a nuclear holocaust in peacetime.  In other words, only the most extreme crises of national security imaginable could possibly outweigh the right to freedom of speech and of the press.

However, Catholic dogma does not give nearly as much importance to the right to freedom of speech as does the U.S. Constitution, or any modern secular state.  This makes perfect sense, given the Catholic belief in objective truth and infallible divine revelation: why should – no, how can – something that is false and harmful be given the same rights as something that is true and beneficial?  Consider the following Papal teachings:

Pope Gregory XVI: “Experience shows, even from the earliest times, that cities renowned for wealth, dominion and glory perished as a result of this single evil, namely, immoderate freedom of opinion, license of free speech and desire for novelty.  Here we must include [for condemnation] that harmful and never sufficiently denounced freedom to publish any writings whatever and disseminate them to the people …” (1832, Encyclical Mirari vos, 14-15).[16]

Pope Bl. Pius IX: “… that erroneous opinion, most fatal in its effects on the Catholic Church and the salvation of souls, called by Our Predecessor, Gregory XVI, an insanity, namely, that ‘… a right resides in the citizens to an absolute liberty, which should be restrained by no authority whether ecclesiastical or civil, whereby they may be able openly and publicly to manifest and declare any of their ideas whatever, either by word of mouth, by the press or in any other way’” (1864, Encyclical Quanta cura, 3).[17]

Pope Leo XIII: “We must now consider briefly liberty of speech, and liberty of the press.  It is hardly necessary to say that there can be no such right as this, if it be not used in moderation, and if it pass beyond the bounds and end of all true liberty.  For right is a moral power which … it is absurd to suppose that nature has accorded indifferently to truth and falsehood, to justice and injustice” (1888, Encyclical Libertas Præstantissimum, 23).[18]

Pope St. Pius X: “It is not enough to hinder the reading and the sale of bad books – it is also necessary to prevent them from being published” (1907, Encyclical Pascendi Dominici Gregis, 52).[19]

Pope Pius XII: “The Catholic Church … has as its foundation the truth of Faith infallibly revealed by God.  For this reason, that which is opposed to this truth is, necessarily, an error, and the same rights which are objectively recognized for truth cannot be afforded to error.  In this manner, liberty of thought and liberty of conscience have their essential limits in the truthfulness of God in revelation” (1946, Discourse Ecco che già un anno).[20]

“That which does not correspond to truth or to the norm of morality objectively has no right to exist, to be spread, or to be activated” (1953, Discourse Ci riesce, 5).[21]

It may be observed that most of these pronouncements, which primarily concern the publishing of controversial or erroneous moral teachings, have little or no direct bearing on the case of the Pentagon Papers, in which the question of publication involved, not controversial morality per se, but classified government information.  However, the point is rather that Catholic moral teaching restricts the right to freedom of speech and of the press quite explicitly and severely.  Given the background of a correctly formed Catholic conscience including the teaching on free speech, the justices would have weighed the constitutionally-guaranteed goods of free speech and national security very differently.  It is quite possible that they would have chosen to favor national security over freedom of speech, and so have decided in favor of the government.  It is equally possible to argue that the Pentagon Papers case was decided wrongly because the justices were operating under a false philosophy that over-emphasized the value of freedom of speech.

Justice Souter’s Test Cases: 2. Brown v. Board of Education (race relations)

Justice Souter’s other example was the 1954 case of Brown v. Board of Education.  His point here was that the Court Justices delivered what was in all essentials a complete reversal of the “separate but equal” decision in Plessy v. Ferguson, 1896, and that this was due to the justices of 1954 seeing a “new meaning” in the racial situation that the justices of 1896 had failed to see.

Now with due respect to Justice Souter, I cannot see how this example does anything other than undermine his own argument.  According to his judicial philosophy as he states it in the speech, there is no way the justices who decided Plessy can be faulted for their decision.  He even states that “those who look to [the fair-reading, “balls and strikes”] model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional.”  He leaves his own opinion unstated, but we can deduce that one of two possible conclusions must be true.  Either Justice Souter himself does not think the court “should have declared … segregation unconstitutional back in 1896,” or he is essentially accusing those who support the fair-reading model of being racist, or at least of being less racially sensitive than himself.  To suppose the latter conclusion is certainly not charitable and almost as certainly not accurate.  But that leaves us with the conclusion that the federal court did not decide wrongly in 1896: a very difficult conclusion to defend, and one which Justice Souter himself, illogically but correctly, condemns in his very next sentence: “If Plessy was not wrong,” he asks rhetorically, “how is it that Brown came out so differently?”

Justice Souter and I are in agreement that the Plessy decision was wrong, and that the decision was greatly influenced by the circumstances in which it was delivered.  However, if one follows Justice Souter’s philosophy that judges must decide cases by using their “reason” and searching for “meaning” – without any qualifications – he has no option other than to shrug off the Plessy decision as a regrettable but unavoidable injustice.

Again, it is only when the external moral teaching of the Catholic Church is brought to bear on the case that definite conclusions can be reached: namely, that the Plessy judges were operating under a false philosophy and thus (leaving aside the issue of their culpability, which is known only to God) delivered an unjust – i.e., wrong – decision.

The Catholic Church has never, to my knowledge, made any binding pronouncement specifically dealing with the morality of the “separate but equal” philosophy, or of saying that one race is inferior to another.  However, aside from the fact that the Church is not a court of law, this is mainly because the Church attacked the problem at its root, repeatedly condemning the slave trade in the New World from its very inception.

As early as 1435 (over 350 years before the U.S. Constitution was written), Pope Eugene IV wrote in his Bull Sicut dudum: “They [Spanish colonists in the Canary Islands] have deprived the natives of their property … sold them to other persons, and committed other various illicit and evil deeds against them … We order and command all and each of the faithful of each sex that … they restore to their earlier liberty all and each person of either sex who were once residents of said Canary Islands, and made captives since the time of their capture, and who have been made subject to slavery. These people are to be totally and perpetually free, and are to be let go without the exaction or reception of money. If this is not done when the fifteen days have passed, they incur the sentence of excommunication by the act itself, from which they cannot be absolved, except at the point of death, even by the Holy See, or by any Spanish bishop, or by the aforementioned Ferdinand, unless they have first given freedom to these captive persons and restored their goods.”

Ipso facto excommunication is the most severe punishment the Church can impose.  An excommunicated person is removed from communion (membership) in the Church of Christ, with the result that his eternal salvation is severely jeopardized.  It is the punishment applied to anyone involved in the procuring of an abortion today.[22]

A century later, in 1537, Pope Paul III wrote an Apostolic Letter, Sublimus Dei,[23] containing the following solemn pronouncement: “We define and declare … that … the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they should be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.”

Slavery and the slave trade were repeatedly condemned by later popes: Gregory XIV (Cum Sicuti, 1591), Urban VIII (Commissum Nobis, 1639) and Benedict XIV (Immensa Pastorum, 1741).[24] In 1839,  Pope Gregory XVI wrote the Apostolic Letter In Supremo Apostolatus,[25] which includes the following words:

“We have judged that it belonged to Our pastoral solicitude to exert Ourselves to turn away the Faithful from the inhuman slave trade in Negroes and all other men …

“We warn and adjure earnestly in the Lord faithful Christians of every condition that no one in the future dare to vex anyone, despoil him of his possessions, reduce to servitude, or lend aid and favour to those who give themselves up to these practices, or exercise that inhuman traffic by which the Blacks, as if they were not men but rather animals, having been brought into servitude, in no matter what way, are, without any distinction, in contempt of the rights of justice and humanity, bought, sold, and devoted sometimes to the hardest labour.

“We reprove, then, by virtue of Our Apostolic Authority, all the practices abovementioned as absolutely unworthy of the Christian name. By the same Authority We prohibit and strictly forbid any Ecclesiastic or lay person from presuming to defend as permissible this traffic in Blacks under no matter what pretext or excuse, or from publishing or teaching in any manner whatsoever, in public or privately, opinions contrary to what We have set forth in this Apostolic Letter.”

Again, objections may be advanced with regard to these quotations.  One could argue on historical grounds, for instance, that the popes’ decrees were insufficiently enforced or followed, and had little effect, and that slavery occurred even in Catholic countries.  But again, the point lies elsewhere.  The dogmatic pronouncements of the Catholic Church on slavery, as distinct from their effect or enforcement, have been frequent and unambiguous.  They constitute the true teaching on slavery, regardless of whether or not it is followed.  Thus if the Church’s absolute condemnation of slavery had been followed in the United States, the racial conflict that led to Plessy v. Ferguson and Brown v. Board of Education case would have had a very different history and might have been essentially avoided altogether.

Even if we consider only the effect of Catholic teaching on the case of Plessy itself, we would expect the case to turn out very differently.  Suppose we take Plessy exactly as it occurred in its real historical context, but replace the historical justices with a bench of justices possessing correct and informed Catholic consciences.  We would naturally expect the justices to take into account the 400-plus years of severe condemnation of slavery by popes.  Consequently, we would expect them to realize that the racial atmosphere in the United States at that time, a product of hundreds of years of slavery, was extremely and violently abnormal, and should not influence their decision.  The change in racial atmosphere is in fact the very reason that Justice Souter thinks the Brown case turned out differently from Plessy: “The generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast.”  An informed Catholic bench could have reached this conclusion even in 1896.

Conclusion

“Only by bringing to bear an understanding of the human condition can a justice choose from among the conflicting values of the Constitution when deciding a case, Justice Souter said.”  The Times editorial applauds Souter for this “appreciation of complexity” seemingly without realizing that it is possible to understand the human condition in diametrically opposed ways.  It certainly makes a difference to the court, the law, and millions of individual lives whether a justice understands the human condition like Justice Anthony Kennedy (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”[26]) or like Pope Leo XIII (“The end, or object, both of the rational will and of its liberty is that good only which is in conformity with reason … the supreme end to which human liberty must aspire is God”[27]).  One “understanding of the human condition” leads to the continued legality of abortion and other horrendous crimes against God and man; the other leads man to understand the truth of the words of Christ: “Whoever commits sin is the slave of sin … If you continue in my word, you shall know the truth, and the truth shall make you free” (St. John 8:34, 31-32).

“Certainty is an illusion,” say Justices Holmes and Souter.  “Simplicity devalues our aspirations,” applauds the New York Times.  “Repose is not our destiny.”  These statements are true only in a world without God: which is to say, they are not true.  We are told something very different by Christ: “Behold I send you as sheep in the midst of wolves.  Be ye therefore wise as serpents and simple as doves” (St. Matthew 10:16).  “Martha, Martha, thou art troubled about many things: but one thing is necessary” (St. Luke 10:41-42).  “Take up my yoke upon you, and learn of me, because I am meek, and humble of heart: and you shall find rest to your souls” (St. Matthew 11:29).

It is not difficult to imagine what St. Paul would have said to the idea that “certainty is an illusion”; St. Paul, who wrote, “I have fought a good fight, I have finished my course, I have kept the faith.  As to the rest, there is laid up for me a crown of justice, which the Lord the just judge will render to me in that day: and not only to me, but to them also that love his coming” (2 Timothy 4:7-8).

I think it was Peter Kreeft who divided those who do not know God into two categories: those who are happy and dishonest, and those who are honest and unhappy.  Justice Souter seems to me to fall into the latter category.  “Who has not felt that same hunger … for certainty?  Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions?”  I can only hope and pray that he, and millions of others who share his longings, will discover the only “thing unchangeable,” the “one thing necessary”: “Jesus Christ was yesterday, and is today, and will be for ever” (Hebrews 13:8).  “Heaven and earth shall pass away, but my words shall not pass away” (St. Mark 13:31).  Only then will Justice Souter’s concerns about “an indeterminate world I cannot control” and the “uncertain future” find an answer: “In the world you shall have distress: but have confidence.  I have overcome the world” (St. John 16:33).


[1] http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/

[2] http://www.nytimes.com/2010/06/05/opinion/05sat3.html

[3] http://www.cnn.com/2005/POLITICS/09/12/roberts.statement/index.html

[4] G.K. Chesterton, Heretics, in Collected Works vol. I, Ignatius Press, 41.

[5] Confessions, I. i. 1.

[6] Pope Leo XIII, Libertas præstantissimum, 10, 13, in The Popes Against Modern Errors, TAN Books, 88, 90; quoted loosely in Michael Davies, The Reign of Christ the King, TAN Books, 20

[7] at http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html

[8] Cf. The Reign of Christ the King, 7.

[9] Hilaire Belloc, “The Church and the Modern State,” in Essays of a Catholic, 51.

[10] ibid. 54.

[11] EV 73 (with quotation from the Congregation for the Doctrine of the Faith’s 1974 Declaration on Procured Abortion).

[12] ibid.

[13] Summa Theologiæ I-II, q. 93, a. 3, ad 2um; quoted in EV 72.

[14] cf. EV 60, 73.

[15] Michael Davies, The Reign of Christ the King, TAN Books, 20-21

[16] The Popes Against Modern Errors, TAN Books, 7-8.

[17] ibid. 17.

[18] ibid. 97.

[19] ibid. 234.

[20] Quoted in Michael Davies, The Second Vatican Council and Religious Liberty, Neumann Press, 49-50.

[21] Quoted in ibid. 53.

[22] “Slavery and the Catholic Church,” http://users.binary.net/polycarp/slave.html

[23] at http://www.newadvent.org/library/docs_pa03sd.htm

[24] “Slavery and the Catholic Church.”

[25] at http://www.newadvent.org/library/docs_gr16is.htm

[26] Planned Parenthood v. Casey (1992); quoted in David Carlin, The Decline and Fall of the Catholic Church in America, Sophia Institute Press, 89.

[27] Encyclical Libertas Præstantissimum (1888), 5, 11; in The Popes Against Modern Errors, 84, 89.

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