NEW YORK - Despite the fact that a new member of the Supreme Court could shape judicial precedent for decades to come, a number of Catholic legal experts say that with Monday’s pick of Circuit Court Judge Brett Kavanaugh, expectations of sweeping and immediate legal change on neuralgic issues such as abortion and gay marriage are premature.
If confirmed by the U.S. Senate, Kavanaugh will replace outgoing Associate Justice Anthony Kennedy who, after serving more than 30 years on the Court, announced his retirement on June 27 at the end of this year’s term. Kavanaugh previously served as a clerk for Kennedy.
During an announcement in the East Room of the White House, Trump praised Kavanaugh as “one of the finest legal minds of our time,” adding that “no one in America is more qualified for this position and no one more deserving.”
Although Kavanaugh’s appointment is expected to tilt the Court in a more conservative direction, according to Marc DeGirolami, a professor of law and associate director of the Center for Law and Religion at St. John’s University, pro-lifers hoping for an eventual reversal of Roe v. Wade shouldn’t get their hopes up.
“It doesn’t work that way institutionally on the court, and it doesn’t work that way culturally,” DeGirolami told Crux.
Michael Moreland, University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University echoed those sentiments, adding, “the Supreme Court often doesn’t want to take on bigger issues than are necessary to resolve the case in front of them.”
Instead, both said that on issues such as abortion, Kavanaugh would likely be open to ruling in favor of challenges to existing law that could slowly chip away at current laws, rather than completely overturning it.
During his remarks following the president’s introduction, Kavanaugh specifically highlighted his Catholic faith, noting that he is part of a “vibrant Catholic community” in Washington, D.C., where he attends Blessed Sacrament parish in Chevy Chase.
He went on to cite his education at Georgetown Preparatory School - an elite Jesuit school - and its motto to be “Men for Others.” Coincidentally, Associate Justice Neil Gorsuch also attended the same Catholic high school, where the two briefly overlapped.
In May, Kavanaugh delivered the commencement address at the Catholic University of America Law School, where he made reference to both Pope John Paul II and Pope Francis, telling graduates that their faith means more than merely attending Mass but also helping others in need.
At 53 years old, Kavanaugh could become one of the youngest members of the Court, though he is expected to face a contentious confirmation battle, with many Democratic Senators warning they will forcefully resist his nomination, having hoped the president would wait until after the midterm elections this November to name a replacement.
Even so, Senator Majority Leader Mitch McConnell has vowed a swift confirmation process this fall. To do so, he will have to navigate politically treacherous territory, given that his Republican majority is down one vote while Arizona Senator John McCain remains at home fighting brain cancer.
Other members of his party, notably Senators Lisa Murkowski of Alaska and Susan Collins of Maine have voiced opposition to a nominee who would threaten abortion rights.
A simple majority vote is needed to confirm the nominee, and if confirmed, Kavanaugh will mark Trump’s second selection to the high court. In April of last year, Gorsuch was sworn to the bench to replace the late Justice Antonin Scalia who died in 2016.
According to Rick Garnett, an associate dean and professor of law at Notre Dame Law School, Kavanaugh’s legal thinking is “shaped by Scalia,” as he believes is the case for all of the potential contenders on the president’s shortlist.
The opportunity to fill a vacant Court seat became one of the defining issues during the 2016 presidential campaign, when then-candidate Trump pledged he would make his Supreme Court nominations from a list of 25 names, all of which had been vetted by leading conservative judicial groups with the aim of fulfilling Trump’s campaign goal of overturning Roe.
Among the current justices on the court, five are Roman Catholic - Chief Justice John Roberts and Associate Justices Samuel Alito, Anthony Kennedy, Sonia Sotomayor, and Clarence Thomas. While Gorusch was raised Catholic, he now attends an Episcopal congregation.
Retiring at 81 years old, Kennedy cast critical votes in some of the court’s most consequential cases for Catholics, including abortion, gay marriage, capital punishment, school choice, and on labor unions.
In 1992, he co-authored the majority opinion in Planned Parenthood v. Casey upholding abortion rights established in Roe v. Wade, while also allowing for some restrictions to be established. In 2005, in Roper v. Simmons, Kennedy cast the deciding vote in a decision that prohibited juveniles from being criminally executed.
However, he is most likely to be remembered for writing the majority opinion in the 2015 Obergefell v. Hodges, which established a new civil right to same-sex marriage.
In reflecting on the Kennedy legacy, Garnett told Crux that “Catholics, like everybody, should admire Kennedy as a real decent gentleman.”
He went on to add that Kennedy’s legacy on freedom of speech should be at the top of the list for things which Catholics should remember Kennedy, along with his “consistent and correct” support of school voucher programs and his position that “there is nothing unconstitutional with government cooperating with private institutions for public purposes.”
Yet on the issue of abortion, Garnett said the manner in which Kennedy continued to support the Court’s decision in Roe was “unfortunate.” He also added that his decision in Obergefell “moved the law away from the Catholic understanding of what marriage is.”
Surveying those changes, legal scholar and president of the Catholic University of America, John Garvey, told Crux that “there are a number of issues that have opened up between the Church and where the culture is going and a lot of people are hoping future rulings [by the court] will change that.”
As evidence of the high stakes prospects of Kavanaugh’s nomination, a number of outside conservative Catholic legal giants were on hand for the White House ceremony, including Ed Whelan, president of the Ethics and Public Policy Center, and Leonard Leo, executive vice president of the Federalist Society and the individual largely responsible for vetting the president’s shortlist of potential nominees.
Monsignor John Enzler, head of Catholic Charities in Washington, D.C., where Kavanugh serves as a volunteer, also attended as a special guest of the judge. When Pope Francis visited the nation’s capital in 2015, the pope paid a visit to Enzler’s ministry headquarters where the two led an outreach to feed lunch to homeless individuals.
On Tuesday, Kavanaugh will begin the process of meeting with individual senators before confirmation hearings begin later this fall.
Moreland told Crux that he believes Kavanaugh is “the best combination of the strongest pick and the safest pick the president could make,” noting that while his specific opinions on abortion law are unknown, he has already revealed himself to be a “strong defender” of religious freedom based on previous decisions.
Although many Catholics view this as a turning point for the Court on issues related to matters of human life and religious liberty, Garvey told Crux that those on “both sides” of the abortion issue have, perhaps, put too much faith in the role of the court to deliver the “right outcome” of certain cases, while neglecting other areas of government or cultural influence.
Garvey is quick to note that that he favors “a strong commitment to the text of the Constitution,” yet at the same time he cautions against an overly active judiciary.
“That’s not the business of the court,” said Garvey, “and it’s bad for the democratic process.”
