November 8, 2005

Christians on the Supreme Court
by Jon M. Sweeney

No one could have predicted, a generation ago, that there would one day be five Roman Catholics on the United States Supreme Court. If your Italian -- or Irish, or Mexican-American grandmother had predicted such a thing years ago, you would have known that she was completely addled.

But it is about to come true. For those who have forgotten their civics lessons, there are only nine members of the U.S. Supreme Court, and more than half of them are soon to be Catholics. If Samuel A. Alito Jr.’s nomination is ratified by a majority of the Senate, which it now appears is likely to happen sometime in late January or February, he will join justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, and newly elected Chief Justice John G. Roberts, Jr., as a distinctly Catholic majority on the highest court.

This is the country that has only elected one Roman Catholic president—John F. Kennedy. At that time, anti-Catholic bias was still so rampant that Kennedy had to reassure voters that he would not take his marching orders from the pope.

The 2004 presidential election was the next closest that a Catholic has ever come to the Oval Office. And Senator John Kerry lost, in the end, because too many of his own co-religionists (Roman Catholics) turned to support his opponent, the most important Evangelical Christian of the last decade—the United Methodist, George W. Bush.

Before 1988, there were never more than two Roman Catholics on the high court at the same time. Last month, there were four. And it looks very likely that the number will soon be five, a clear majority of all of the justices.
Two of the remaining four justices are Jewish: Ruth Bader Ginsburg and Stephen G. Breyer; and the last two, David H. Souter and John Paul Stevens, are Episcopalian and Congregational, respectively. The days are gone when Protestants dominated the court.

The two justices who are being replaced this year and early next - Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor - were both Protestants. Rehnquist was a member of the Evangelical Lutheran Church of America (our largest group of Lutherans), and the retiring O’Connor is another Episcopalian.

Thirty percent of all past and present Supreme Court justices have been Episcopalian. This even includes Justice John Rutledge of South Carolina, who served on the high court for only one year, in 1795, and was a member of the Church of England rather than the Episcopal Church, which was forced to define itself in distinction from the “mother” church at the time of the Revolutionary War.

Only one justice in history—David Davis, a friend of Abraham Lincoln’s from Illinois—was a member of no religious group whatsoever. He served from 1862-78.

So, what does all of this mean? Does the religious affiliation of a Supreme Court Justice have any effect on how he or she will vote on key issues facing the country, and the court, in the years ahead? Yes, it must. However, as any Catholic will tell you, there is no clear, unilateral Catholic position on the “hot” issues of our day, despite what you may hear from the pope.

For example, we all may expect that a serious challenge to Roe vs. Wade will be entertained by the high court in the coming years. Pope Benedict XVI, and Pope John Paul II before him, have made it very clear to Catholic politicians in America that they are to uphold the sanctity of human life in the form of the unborn fetus, by rejecting arguments for legal abortion. However, good Catholics disagree, and not always quietly. In the Roe vs. Wade case, Supreme Court Justice William J. Brennan Jr., who was appointed by a Republican president, voted with the majority to legalize abortion. Brennan was not excommunicated by the Church, despite his support for abortion rights throughout his career on the bench, but in today’s environment, he certainly could be. Or, at the very least, if he went to Mass in certain parishes, he could be denied the sacraments.

On the other hand, conservative Catholic justices can be simply conservative, not Catholic, when it comes to other issues. And perhaps that’s the way it ought to be. For example, Judge Alito has amassed a long record of conservative opinions on issues such as the death penalty (he’s for it), employment discrimination (he’s usually on the side of the employer), immigrants’ rights (they have few), and the regulation of gun-ownership (meager).

Consequently, there are those who watch from the sidelines who may find themselves wishing that these conservative Catholics on the bench would be more influenced by faith, not less.

© 2005 Jon M. Sweeney.

—Jon M. Sweeney is a writer and editor living in Vermont. He is the author of several books, including THE LURE OF SAINTS: A PROTESTANT EXPERIENCE OF CATHOLIC TRADITION.

More by Jon Sweeney.

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