“Justice Kennedy and Justice Scalia present the positive and the negative aspects of the same photographic image. It is the picture of a judge trying to reconcile the role of his faith with his responsibilities on the Supreme Court. We have long recognized that Justice Kennedy and Justice Scalia have very different conceptions about the proper role of a judge under our Constitution. It is possible that their differing conception about what it means to be Catholic has had an equally profound influence on the divergence of their judicial philosophies.
Catholics live their faith in a variety of ways, so it is not surprising that this variety of beliefs can be observed on a Supreme Court with six Catholic members. Religious beliefs influence all of us in diverse ways, as do ideological beliefs, affinities for cultural traditions, and prejudices or stereotypes. Each person’s understanding of how the world works (or should work) is comprised of a unique stew of multiple predispositions.
However, what happens when these predispositions come into conflict? In particular, how do we react when our interpretation of the Constitution, as the embodiment of a fervently held political philosophy, comes into conflict with our understanding of the moral teachings of our faith? Our sacred and secular belief systems must either align or come into conflict, and Supreme Court Justices are no different than the rest of us in this regard.
Human nature being what it is, we would prefer to avoid the dissonance that occurs within our psyche when the secular and the sacred conflict. Therefore, our natural temptation will be to engage in self-delusion. This occurs when we force the interpretation of either our faith or our secular Constitution in a particular direction in order to bring the two of them into alignment. Justice Kennedy wants to see his faith’s promotion of human dignity reflected in the Constitution. Justice Scalia wants to reassure himself that his reading of the Constitution does not countenance the exercise of immoral authority. Not surprisingly, both men see what they want to see.
All of us begin the act of interpretation knowing what it is that we hope to find. Is it any wonder that we often shade our reading of the text and precedent in order to arrive at our hoped for destination? When our mind shades the text in this fashion, we risk doing violence to the meaning of the words we interpret. The alternative, however, would be to do violence to our strongly held self-image. Our subconscious mind will not allow this to occur.
The only solution for a judge placed in this position is to exercise her capacity for self-awareness. This means pausing before she rules. During that pause she should self-consciously reflect on her premises, her life experiences, and even her religious beliefs, in order to assure herself that her interpretation of the text is driven by logic and precedent and not by an unconscious desire to rationalize competing belief systems.”