Opinion: Banning Breyer

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Justice Stephen G. Breyer (REUTERS/Jason Reed)

The Cardinal Newman Society, a conservative Catholic group, is berating Fordham University Law School for awarding an ethics prize to Supreme Court Justice Stephen G. Breyer who, among many other rulings, wrote the majority opinion in a 2000 decision striking down Nebraska’s ban on ‘partial-birth’ abortions. The society argues that the honor for Breyer defies a directive from American bishops that “[t]he Catholic community and Catholic institutions should not honor those who act in defiance of our fundamental moral principles. They should not be given awards, honors or platforms which would suggest support for their actions.”

Leave aside the question of whether an award for Breyer must be construed as endorsement of every one of his opinions. What’s really interesting about this protest is that it involves a judge (and a Jewish one), not a politician. A pro-choice legislator arguably chooses whether to support legal abortion; a judge, however, is supposed to be interpreting what legislators (and the framers of the Constitution) intended. A judicial decision isn’t normally considered an ‘act’ in the sense that a vote in Congress is.

This may explain why Catholic bishops generally scold -- and even withhold Holy Communion from -- pro-choice Catholic legislators but not Catholic judges. For example, Justice Anthony Kennedy, who signed a 1992 opinion upholding the ‘essential holding’ of Roe v. Wade, has not received the episocopal opprobrium visited upon John Kerry or even Rudy Giuliani. Nor has Chief Justice John G. Roberts Jr., who testified at his confirmation hearings for an appellate court seat that ‘nothing in my personal views would prevent me’ from applying Roe v. Wade. (On the Supreme Court, Roberts voted to uphold the constitutionality of a ban on partial-birth abortion, but he didn’t cite his faith as the reason.)

If the church gives a Catholic judge a pass on the grounds that he is applying the law, not legislating, why shouldn’t it make the same dispensation for a Jewish judge? The Jesuits st Fordham should raise this question with the Cardinal Newman Society.