Left-wing media in the United States have denounced the Supreme Court ruling of abortion neutrality in the Dobbs case, insisting that now “the Vatican is writing American Law.”
Writing for Daily Kos, Mark Ira Kaufman declared Monday that the heavy presence of Catholics on the court is a threat to democracy because it makes “all American women subservient to the rules of the Catholic Church.”
The six Catholic justices “imposed their religious law on all Americans,” Kaufman insists, echoing a recent New York Times article titled “Too Much Church in the State” in which it bemoaned the “astonishing preponderance of Catholics on the Supreme Court.”
“Six Catholics on the Court just imposed Church law on the American people,” Kaufman continues. “They made the Court a synod, sweeping aside the First Amendment’s establishment clause, and in so doing, looked more like servants of the Vatican than servants of the American people.”
In so doing, the Catholics on the court have reduced “the world’s greatest democracy to a theocracy,” he asserts.
Anti-abortion activists confront a gathering of abortion-rights demonstrators outside of a Catholic church in downtown Manhattan on May 07, 2022 in New York City. The protests at the Basilica of St. Patricks Old Cathedral, which have been occurring weekly. (Photo by Spencer Platt/Getty Images)
Kaufman’s statements are remarkable for two reasons: the insouciance with which he resurrects the worst of historical American anti-Catholic bigotry, and the erroneous presumption that the Supreme Court exists in order to legislate rather than adjudicate.
One can only assume that Mr. Kaufman has not read the majority opinion penned by Justice Sam Alito or the two concurring opinions by Justices Thomas and Kavanaugh. In these texts, the justices take pains to show their commitment to returning the Court to its proper judicial role against the “raw judicial power” displayed in the Roe decision. At no point do they take any stand regarding the morality of abortion.
Justice Kavanaugh’s opinion in particular lays out this principle with stark clarity.
The issue before this Court “is not the policy or morality of abortion,” Kavanaugh writes. “The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion.”
Protesters march to denounce the U.S. Supreme Court decision to end federal abortion rights protections on June 26, 2022 in Los Angeles, California. (David McNew/Getty Images)
“On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice,” the justice continues. “The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress.”
“Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral,” Kavanaugh concludes.
This would be a very strange statement indeed, if Justice Kavanaugh’s intent were, as Kaufman alleges, to “impose Church law on the American people” or to “make the Court a synod.”
What the justices actually did in overturning Roe and Casey was quite the opposite: they reestablished the court as a court rather than a legislative body, rolling back judicial overreach and rehabilitating the democratic process.
What Kaufman has done in his essay reveals a great deal more about his own prejudices — both religious and political — than about the members of the court and their jurisprudence.