With the election of the next pope coming under precedent-breaking scrutiny, it may be helpful to take a look at what lessons our democratic secular institutions can provide for the governance of the Catholic Church, and the papacy in particular. I believe that the more apt comparison is between the papacy and the U.S. Supreme Court, and not the presidency, as one might initially suspect.
Infallibility is a characteristic, shared to a great degree, of the United States Supreme Court and the papacy. We may not think about things that way, but it’s true. As Associate Justice Robert H. Jackson said of the court in 1953, “We are not final because we are infallible, but we are infallible because we are final.” And as
, one of the two documents of the First Vatican Council in 1870 taught, when the Roman pontiff teaches ex cathedra (from the Chair of Peter) on matters of faith or morals, that teaching is inerrant or infallible.
How do these two “infallible” institutions compare when it comes to their authority, their tenure, their resistance to outside influences, and how does Benedict’s resignation affect that comparison? What, if anything, can the church learn from the court?
In terms of their authority, the U.S. Supreme Court has “a” final word –it gets to infallibly interpret the U.S. Constitution. The only ways to change its interpretation are with an onerous constitutional amendment process or by the court itself reversing a precedent and coming up with a different interpretation, which rarely happens. But, on matters of Catholic faith and morals, the pope has “the” final word. There is no reversal allowed, even by a future pope. This is so, the popes teach, because the truth cannot change. Paul VI felt so bound by this that he rejected the recommendation of his own study commission in 1968 in order to uphold Pius XI’s 1931 prohibition against all artificial birth control.
In terms of their tenure, popes are elected and Supreme Court justices are chosen for life. Benedict will be the first pope not to die in office in six hundred years. That is why his resignation is so surprising. In contrast, the justices of our Supreme Court regularly resign. The twenty-first century has seen three justices, O’Connor, Souter and Stevens, resign and only one, Rehnquist, died in office.
In terms of their resistance to outside influence, lifetime tenure is meant to insulate Supreme Court justices and popes from worldly and political pressure. But it has been said that the Supreme Court reads the election returns, as in the
West Coast Hotel
case in 1937, where the U.S. Supreme Court abandoned its prior “freedom of contract” precedent that had led to its overturning of so much New Deal legislation. Or
Brown v. Board
which overturned decades of institutionalized segregation authorized by the court’s
Plessy v. Ferguson
“separate but equal” decision. Supreme Court justices, then, are certainly influenced by the culture, by politics, and by the polls.
Popes have no election returns to read, but they are called to consult the “
” in exercising their infallible teaching office. Both Pius IX and Pius XII before making infallible statements on the Immaculate Conception and the Assumption consulted all of the bishops of the world and, through them, the Catholic faithful. Popes are also called to read the “signs of the times,” based on the Lord’s words in Matthew to the religious establishment, “You know how to read the face of the sky, but you cannot read the signs of the times.” (16:4) John XXIII referred to this in his 1963 encyclical letter
Pacem in Terris
, where he included among the signs of the times the move to recognize worker’s rights and women’s rights.
One of the signs of today’s times is that the pope must be able to function on a world stage. The papacy of John Paul II brought about that change and there is no going back. The pope is now expected to be present in person to the faithful around the world on a regular basis, and if his health makes him a prisoner of the Vatican, then he cannot perform the essential duties of his job as expected. Congratulations to Benedict for reading this sign of the times and having the courage to resign.
More signs of the times remain to be read. The dearth of vocations, the low rates of church attendance in the developed world and the inability of so many well-intentioned Catholic couples to comply with the church’s birth control strictures are among them. May the next pope, with the wisdom of a Supreme Court in knowing when to stick with precedent and when to over-rule it, understand these signs and, with the help of the Holy Spirit, lead the church forward.
Nicholas P. Cafardi is dean emeritus and professor of law at Duquesne University and a noted commentator on Catholicism.