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The Supreme Court as (Anti-)Magisterium

24 Pages Posted: 30 Nov 2005  

Steven Douglas Smith

University of San Diego School of Law

Date Written: November 29, 2005


Scholars have resorted to various comparisons in attempting to understand the role and function of the United States Supreme Court: they have compared the Justices to third-branch legislators, scholars, Platonic guardians, prophets, princes, "robed masters," and aristocrats. This essay proposes a different and hopefully illuminating comparison: the Court can profitably be regarded as an (anti-)magisterium. A "magisterium" - a term usually used in Catholic contexts - is the teaching authority in a hierarchical church. This essay describes the Supreme Court as an "(anti-)magisterium" in two senses. First, the Court is a species of magisterium, except that it is an inverted one - a sort of upside-down magisterium; it is thus a particular if peculiar type of magisterium, much in the way that an anti-hero is a type of hero and anti-matter is a type of matter. Second, the Court casts itself as an institution that is opposed to and that protects citizens against magisteria - against institutions that impose orthodoxies.

This comparison is developed in three sections. The first section discusses the ways in which the United States can be thought of as, in Chesterton's description, "a nation with the soul of a church." The second section discusses the historic Catholic/Protestant division over the necessity of a magisterium in a church - a division growing out of the painful choice between an imposed (and sometimes resented) unity and a more freely-arrived at fragmentation; and it shows how this same division arises in the American political community and provides perhaps the most influential justification for judicial review. The third section examines the famous Joint Opinion in Planned Parenthood v. Casey, showing how the opinion comes down squarely on both sides of the Catholic/Protestant divide: the Casey Joint Opinion both aggressively Catholic and radically Protestant in its presentation of itself, the nation-church, and the constitutional orthodoxy. Casey thus nicely exemplifies the Court's effort to serve as an (anti-)magisterium.

Keywords: constitution, supreme court, religion

Suggested Citation

Smith, Steven Douglas, The Supreme Court as (Anti-)Magisterium (November 29, 2005). San Diego Legal Studies Paper No. 07-25. Available at SSRN: or

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

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San Diego, CA 92110-2492
United States
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