Did Catholicism Subtly Influence the Supreme Court's Ruling on Presidential Immunity?

     Imagine this: You are Catholic. The Pope, the head of your Church - who you claim has the power to speak with the authority of God Himself, whom you call the Vicar of Christ, who you believe possesses the keys to the Kingdom of Heaven, who has the power to speak infallibly, and to whom was given the chief responsibility to bind and loose in Heaven as on earth, this same Pope - just said something you disagree with. How are you going to react?

     If you are Catholic, this is an easy-peasy question. You simply claim that when the Pope was saying that thing you disagreed with, he wasn't acting in his capacity as the Pope. Yes, he said X, but X isn't something a Pope would say, so clearly he wasn't speaking in his papal voice. (Catholics know when the Pope is using his papal voice in the same way that kids know when their parents are using their parental voices.) 

     As you may know, Pope Francis recently raised a big stir among Catholics when he said (and I am paraphrasing just a little) that all religions are equally good at getting you to God. Here's his actual words:

"Every Religion is a way to arrive at God. Sort of a comparison, an example would be, they're sort of like different languages in order to arrive at God. But God is God for all. And if God is God for all, then we're all sons and daughters of God. 'But my God is more important than your God.' Is that true? There's only one God, and each of us is a language, so to speak, in order to arrive at God. Sikh, Muslim, Hindu, Christian. They're different paths." -- (I transcribed this from the contemporaneous translator. The video is here.)

      Now, if you pay any attention to Catholic commentators, you know these comments from Pope Francis have ruffled up more than a few feathers. Some have outright accused the Pope of heresy. Others have stopped short of calling him a heretic, but hold rather that the comments the Pope made are facially heretical.* As commentators have pointed out, the Catholic Church teaches, "There is no salvation outside the Catholic Church." Attempts to equate religions or take a pluralistic approach to religions are, so good Catholics will tell you, wrong, misguided, heretical, false, demonic, scandalous, dangerous, and disastrous for the salvation of souls. 

     Now, I don't particularly care to weigh in on the debate over these scandalous comments, in part because I don't consider them to be all that scandalous. Rather, what I wish to point out is that Catholics have always been perfectly comfortable and confident with being more Catholic than the Pope. Catholics are really good at telling you when the Pope isn't acting popish. For all the hype that Catholic apologists will give about the Church needing a single earthy head, these same apologists would lop off that head in a heartbeat to correct the Pope when necessary. 

     In the modern Catholic psyche, it is a given that Catholics are adept at telling you exactly when the Pope is acting like the Pope and exactly when he is not. If you are Catholic, or if you know a Catholic, you know this is true.* 

     That brings me to my question which I want to raise here. Given the fact that the U.S. Supreme Court is overwhelmingly Catholic, did this Catholic mindset influence the Court's decision in the presidential immunity case Trump v. United States? Recall that the issue at hand was whether Trump had immunity for certain acts he committed while President of the United States. The Court ruled, in an opinion written by a Catholic and voted for by four other Catholics and one Episcopalian,* that the president had no immunity for unofficial acts but absolute immunity for official acts. 

     The distinction between official and unofficial acts may seem like a blurry line to some people. This is especially true given that our political system is, and always has been, partisan; meaning it is the job of politicians to cater to private interests as part of their public duties. Lobbying, corporate kickbacks, and private incentives are all part of our system. The blur between the public office and private interest is a feature of the system. So how can the Supreme Court know, with such certainty, that their distinction between official and unofficial acts makes any sense? Well, here is the standard they created. (I have copied this text from the Court's syllabus in Trump v. United States, but I have omitted internal references and quotation marks to make it easier to read.)

When the President acts pursuant to constitutional and statutory authority, he takes official action to perform the functions of his office. Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s discretionary responsibilities under the Constitution and laws of the United States frequently makes it difficult to determine which of his innumerable functions encompassed a particular action. The immunity the Court has recognized therefore extends to the outer perimeter of the President’s official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority.  

In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a highly intrusive inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. 

(Read the syllabus and decision here.) 

     In the dissenting opinion (by a Catholic, a Jew, and a Protestant, in case you were wondering), this standard of what counts as "official" is highly criticized. Since it covers even the "outer perimeter" of presidential responsibilities, and protects the president's intentions from being questioned, the dissent argues this standard makes the president virtually immune to any criminal law. The dissent states:

In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. . . . Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.  Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed “unofficial” is destined to be vanishingly small. (Ibid)

     It seems to me that the majority on the Supreme Court have put an awful lot of faith in our ability to identify when the president's actions are "manifestly or palpably beyond his authority." The dissent puts very little faith in our ability to do this, arguing that since the waters are so muddy between official and unofficial actions, and since the Court ruled that muddy waters should be presumed to be official, everything will become ipso facto official, and therefore immune from consequences.

     But I wonder whether the Court's Catholic imagination hasn't, in some way, convinced the Court that it will be easy to identify when the president is acting "manifestly or palpably beyond his authority." After all, within Catholicism, there is heap upon heap of Catholic doctrine extolling the office of the papacy, giving the Pope absolute authority over the Church, bestowing charisms of the Holy Spirit protecting the Church against apostacy, making the Pope the one true visible head of the Catholic Church, with the power to make infallible pronouncements when he so chooses. And yet, Catholics have always found it easy to identify when the Pope is acting manifestly and popably beyond his authority. (Sorry, I couldn't resist the pun.)

     In this Catholic imagination, it may very well be the case that you can give the president absolute immunity and still be able to prosecute him, just as you can give the Pope absolute teaching authority and still ignore his teachings. This is a very Catholic way of seeing the world. Catholics know when the Pope isn't acting like the Pope. You can rest assure they will know when the president is not acting like the president. Just like how Justice Potter Stewart identified pornography, our Court will identify when a President is acting unofficially. They'll know it when they see it.