Introduction

Federal and state courts, and especially the Supreme Court, are surrounded by grandeur, their operations impelled by an ever-present sense of duty to higher authority. These rituals and ceremonies—right down to the Latin language employed in court opinions1—evoke the religious heritage that continues to permeate American civic life. This resemblance, however, is more than a mere surface-level similarity. In many respects, the Supreme Court in its institutional capacity mirrors traditional religious authority structures. In so doing, the Court stands at the forefront of a set of philosophical norms often described, in the aggregate, as “ceremonial deism.”2

This Essay argues that, in the American experience of civic identity, the Supreme Court fulfills a sociological role comparable to that of the Magisterium3 of pre-Protestant Christianity.4 The Essay looks through four discrete lenses to see how the Supreme Court functions as a proxy Magisterium: tradition, mediation, sacramentalism, and anthropology. In service of these purposes, this Essay uses the term “Magisterium” broadly. Here it refers not only to the institutional aspects of the Roman Catholic Church, but also to those Christian religious traditions that, to some extent, view the teachings and tradition of that Church as having some binding theological force.5 Some attributes of this Magisterium, while not sine qua nons, include an embrace of apostolic succession, or the tracing of an unbroken stream of ecclesiastical authority from the days of the early Church until the present;6 sacramental theology, or the celebration of unique rites understood as occurring at the nexus of the material and the sacred;7 and the cognizability of moral truth-claims.8 The Essay subsequently assesses current trends in religious circles towards deinstitutionalization, and suggests that similar patterns may eventually compromise the Court’s institutional legitimacy.

I. the court as magisterium

Several features of the institutional Supreme Court—namely, tradition, mediation, sacramentalism, and anthropology—bear a striking resemblance to those same features of the religious Magisterium. In a sociological sense, the Supreme Court is situated at the head of the ceremonial-deist philosophical schema,9 serving as an institutional intermediary between fundamental American values and the public at large. Moreover, its structural authority is the wellspring from whence flows the authority exercised by judges in lower courts.

A. Tradition

Within both sacred and secular Magisteria, tradition exerts a binding, even if not an absolutely binding, force. In the Catholic religious context, the doctrine of infallibility10 is one means by which this tradition is codified and operationalized.In the legal context, the principle of stare decisis serves as such a tool.11 Within the Catholic tradition, the Pope’s rare pronouncements in an ex cathedra capacity carry more binding force on a particular matter of faith and morals than all other church pronouncements, such as conciliar doctrinal formulations and encyclicals.12

This view of Magisterial proclamations as “more or less” binding, depending on certain characteristics of the pronouncement in question, is similarly present in the judicial context. Many judicial decisions of the Supreme Court are the law of the land; but they are not necessarily final13—subsequent Courts may overrule legal precedents, and statutes or constitutional amendments may alter the rule system underlying a given decision, warranting reevaluation. Conversely, William Landes and Judge Richard Posner have argued convincingly that some “superprecedent”-type opinions exist that are irremovably entrenched within the judicial landscape.14 These superprecedents parallel the more authoritative doctrinal formulations that a Magisterium may periodically hand down.

B. Mediation

Both the religious and judicial Magisteria are intended to function the same way: an individual human agent interacts in an ongoing process with a transpersonal source of higher authority. In the religious sense, this authority source is God or the Ultimate; in the judicial sense, it is the Constitution (alongside, for some, the expressed or unexpressed will of the Founders). The theology of the Magisterium posits that only those who serve in a particular vocational role—namely, the clergy—may properly interpret both Scripture and tradition.15 Through the process of ordination—which, in some traditions, requires the ordained to renounce certain aspects of public life16—one is imbued with the authority to interpret and interact with the sacred.

The judicial Magisterium—the Supreme Court and the federal court system under it—operates similarly. Only the members of a certain vocation, the judiciary, can bindingly interpret the Constitution and the precedents that have developed in its shadow.17 And judges, like the clergy, are held to higher behavioral standards than the public. They must forgo possible conflicts of interest, adhere to specific ethical canons, and comport themselves with due solemnity.18 Such conduct norms are linked to the gravitas of their task: both judges and clergy stand between a higher authority and laypersons, translating abstracted moral principles into concrete directives.19

Furthermore, the authority of both theological and judicial mediators is not self-imbued. The religious clergy, inducted via the laying on of hands, participate in a theological tradition allegedly dating to the time of the first apostles.20 They derive authority from that unbroken line, which is ceremonially passed down from one generation to the next. Likewise, federal judges are appointed by the President,21 whose own authority in turn rests upon the popular will.22 In neither case does authority vest through personal choice alone: in both cases, the authority of individual agents arises from, and is contingent upon, the larger institution within which they participate.

C. Sacramentalism

Another point of connection between religious and judicial Magisteria is that properties of sacramental theology are present within both. This theology manifests in two distinct ways: the centrality of sacrifice and the instantiation of the metaphysical within the physical.

According to the historic teachings of the Magisterium, baptism effects a drowning of the “Old Adam;”23 it is a rite through which one’s originally sinful nature is subsumed and destroyed.24 And in the Eucharist (Holy Communion), the presence of the body and blood of Christ causes an experience of grace.25 Both rituals entail a participation in sacrifice.26 This participation echoes in the civic space through our reverence for the lives sacrificed in defense of national ideals27 and the occasional requirement to sacrifice our rights on the altar of national necessity.28

Another defining aspect of sacramental theology is its emphasis on the interaction between materiality and transcendence.29 In the baptismal rite, water is the physical conduit of divine grace;30 in the communion rite, bread and wine play this role.31 This intersection between the physical and the nonphysical is mirrored on the judicial level. When the Supreme Court hands down a judgment, evanescent claims to metaphysical “rights” become actualized via injunctive relief or declaratory judgments with real-world consequences.32

Receiving the asked-for remedy in a circumstantial vacuum, unaccompanied by a pronouncement of how one’s rights bear a relationship to the remedy sought, is meaningless. What matters is who grants the remedy and why. The Court is tasked with providing that meaning—just as in the religious system of sacramental theology, where water, bread, and wine take on unique spiritual qualities when a member of the Magisterium’s clergy administers them.

D. Anthropology

The religious Magisterium relies on its authority to make claims about human nature, purpose, and destiny—often sparking controversy in the public square. That asserted authority covers questions as diverse as the mind-body relationship, the morality of gender and sexuality, and the unique properties of “humanness.”33 The American judicial Magisterium has, for its part, taken stances on these and countless other normative anthropological questions.34 The norm of personal autonomy, for example, translates into an anthropological claim about human society: ours is one in which an individual possesses the right to define one’s own identity and to define the nature of the moral claims that may be exerted upon that individual. In Planned Parenthood v. Casey, the Court explicitly grappled with these claims: “[T]he urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear.”35 Per the Casey formulation, one need not look to an extrinsic authority when the validity of moral truth claims is unclear: instead, individual conscience is properly capable of drawing independent conclusions and taking action accordingly. Yet in formally defining the individual as emancipated from traditional institutional controls, the Court perhaps foreshadows its own future deinstitutionalization.

II. deinstitutionalization and the magisterial court

The ability of the Church—or the Court—to perform the above functions is contingent upon the faith of those subject to the Magisterium’s authority. In the case of religion, this faith may no longer be taken for granted: traditional religious institutions—particularly those bearing the liturgical features common to Magisterium-type churches—have experienced significant membership declines over the past several years.36 The religious Magisterium has often been criticized as too partisan and too eager to sidestep the separation of church and state.37

But so too has the Court been decried as an increasingly political body, beholden to party politics and special interests.38 Like the religious Magisterium, the Court’s institutional legitimacy has come under threat; confidence in the Court continues to decline.39 The decline of Magisterial authority—in both ecclesiastical and judicial contexts—connects to several structural changes in public life. The story of the Church sheds light on the story of the Court.

First, for the Magisterium’s institutional power to persist, its subjects and participants must have faith in the significance and necessity of the functions that it uniquely performs: mediation, sacrementalism, interpretation, etc. These functions, however, require the Magisterium and its adherents to behave in fundamentally antidemocratic ways40: adherents must accept unyielding and inflexible hierarchies as foundational features of the social-epistemological enterprise. All may avail themselves of the Magisterium’s work, but all may not participate coequally in it. In an era of information democratization, antihierarchialism, and open access to data, such a view is countercultural at best and indefensibly retrograde at worst.41

Second, participants must believe in the sacredness, vis-à-vis other organs of civil society, of the office itself— regardless of whoever happens to hold it at a given time. This too has come under attack. Sexual-abuse scandals have roiled dioceses across the world, driving a clear wedge between possession of ecclesiastical authority and tendency toward moral behavior.42 Reflecting a parallel disillusionment, a political narrative has emerged alleging mass judicial abuse of office—a narrative under which court decisions adverse to one’s interest are labeled not as error, but as outright “tyranny.”43 Such a narrative undercuts any notion, vital to interpretive authority, that the Court, or the Church, is a disinterested force bound to norms beyond mere personal preferences.44 Given this new narrative, one might reasonably wonder whether a higher morality is actually demanded of clergy and judges.45 After all, what good are the demands and sacrifices called for by a particular office, if they are often flouted? Just as some members of the laity may be disillusioned by diocesan corruption, some citizens may be disillusioned by what they perceive as judicial “lawlessness.” This loss of credibility naturally rebounds from individual malefactors onto the office itself, compromising the institution’s broader, metaphysical claim to legitimacy in the performance of its duties.

Third, participants must willingly comply with unfavorable institutional rules and decisions. Magisterial religious institutions have largely lost this battle,46 and are accordingly perhaps further along the road to deinstitutionalization47 than courts.48 Signs of defiance, however, have also begun to surface in the judicial context. While the idea is not new,49 political figures have proposed state-level “nullification” of unpopular Supreme Court rulings with increasing stridence in the wake of Obergefell v. Hodges.50 And while institutions tasked with making normative claims may survive without participant compliance, their sociocultural relevance becomes essentially nil. For the Court to function effectively, therefore, it must continue to be viewed as authoritative within its particular jurisdictional ambit.51

If that authority diminishes, we may see more stories like Kim Davis’s. Post-Obergefell, some governmental clerks, and Davis most famously, refused to issue marriage licenses to same-sex couples.52 The Sixth Circuit refused to exempt Davis from the performance of her official duties.53 In this controversy, individual autonomy, central to both the religious and judicial frameworks, subverts both simultaneously—an irony that undoubtedly warrants further investigation.Not only is the clerk adjudicating her own perceived religious obligation, but she is also adjudging the legal obligation to which she is subject.54 First, she engages in an individualized act of constitutional interpretation and reaches a conclusion diametrically opposed to that reached by the authoritative interpreter—the Supreme Court. Second, she grounds this conclusion in an individualized act of religious interpretation: her reticence to issue the licenses does not appear connected to a specific entity’s authoritative interpretation of a religious doctrine. In neither case do the positions adopted by traditional Magisterial authorities, whether religious or judicial in character, factor into this philosophical calculus. Religious and judicial deinstitutionalization patterns have converged.

Unless our commitment to autonomy is balanced out by a belief in the Court’s institutional legitimacy, the Court’s authority is likely to come under fire again and again. The modern disestablishmentarian impulse that has led to religious fragmentation thus has a parallel in the impulse towards the democratization of the Magisterial court system. The “constitutional Protestantism” discussed by Sanford Levinson,55 in which nonjudicial agents espouse independent interpretive prerogatives, inherently conflicts with claims of institutional uniqueness and importance.

Conclusion

Given that a number of distinct similarities exist between the role of the Magisterial Church in religious life and the Supreme Court as arbiter of ceremonial deism, mistrust in the Court will likely increase alongside mistrust of religion. The social trends that have caused this mistrust may be irreversible. Information continues to be democratized, “equality” continues to be viewed as a central moral and political imperative, and claims to personal and political autonomy continue to upend established institutional hierarchies. None of this is within the Court’s and Church’s control. But the conduct of clerics and judges is. An enhanced level of professional self-policing may mitigate any abuses of office, real or perceived—and in some areas, such self-policing has already begun.56 Whether such discipline will effectively rebuild public trust is another question entirely. As demographic and ideological currents shift the American landscape, the problem of Magisterial legitimacy is likely to remain salient well into the future.

John S. Ehrett is a member of the Yale Law School J.D. Class of 2017. He would like to thank Professor Helen Alvaré, Stephen Gibbs, and Justin Bullock for raising the questions that ultimately led to this Essay, and Mike Clemente, Joe Masterman, Aaron Levine, and the editors of the Yale Law Journal for their thoughtful feedback during the publication process.

Preferred Citation: John S. Ehrett, American Magisteria in the Twenty-First Century, 125 Yale L.J. F. 304 (2016), http://www.yalelawjournal.org/forum/american-magisteria-in-the-twenty-first-century.