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The Catholic Supreme Court

Friday, August 03, 2018 - Updated: 9:56 am

By David Mills

The U.S. Supreme Court will keep its Catholic majority if the Senate approves Brett Kavanaugh. He would join Chief Justice John Roberts and justices Clarence Thomas, Samuel Alito and Sonia Sotomayor.

In fact, six Catholics served together from 2009 until last year, when the Episcopalian Neil Gorsuch replaced the Catholic Antonin Scalia. Gorsuch is the court’s only Protestant. He’s actually the first one in seven years. The other three justices are Jewish.

To have four Catholic justices, much less five or six, marks a big change in America. Of the court’s 113 justices, only 12 have been Catholic. For most of the nation’s history, the court has had no Catholics or just one holding “the Catholic seat.”

You may have seen the number of Catholics reported as 13. That includes Sherman Minton, a justice described in a Catholic News Service story as having only entered the church five years after he retired. Another source calls him “a nominal Catholic who shunned Christianity.” So no, not a Catholic justice. His wife was Catholic, but I don’t think that counts.

Another of the 12 wasn’t Catholic when he joined the court. Thomas had been raised Catholic and even briefly attended a seminary, but had become an Episcopalian. He returned to the Catholic Church a few years after he became a justice.

The long period of the court having just one “Catholic seat” changed in 1986 when Scalia joined William Brennan Jr. Then Anthony Kennedy joined in 1987. Brennan retired in 1990 and was replaced by a Protestant, but Thomas joined the court the very next year. For the first time in American history, the court had a “Catholic bloc.”

Roberts joined the court 14 years later, in 2005, followed quickly by Alito in 2006 and Sotomayor in 2009. The bloc became a two-thirds majority.

Catholics have served on the Supreme Court for a surprisingly long time, given that John F. Kennedy faced so much anti-Catholic prejudice running for president in 1960. Even today, some portion of the voters attack Catholics in politics for “imposing their religion” on others. This criticism comes from the right and the left, depending, as the old expression goes, on whose ox is gored.

Andrew Jackson appointed the first Catholic justice way back in 1836. Not only that, he appointed Roger Taney to run the court as chief justice.

We’d rather not claim him, though. Taney led the court in the infamous Dred Scott decision in 1857. That ruled that black people could not be American citizens. That meant they couldn’t sue in court to secure their rights. It also ruled that Congress could not ban slavery in the new territories as the country expanded westward. It’s often called the court’s worst decision ever because Taney so twisted the law to get what he wanted.

The next Catholic justice wasn’t appointed for another 58 years, in 1894, and the third just four years later. But then the fourth wasn’t appointed until 1923.

In comparison, the first Jewish justice was appointed only in 1916. Louis Brandeis was joined by Benjamin Cardozo in 1932. When they retired in the late 1930s, the court had one justice in “the Jewish chair” until Ruth Bader Ginsberg joined in 1993 and Stephen Breyer in 1994. Elena Kagan joined in 2010.

There has never been a Pentecostal or an Orthodox Christian justice, despite their having 4 to 5 percent of Americans between them. No justice has ever come from a minority religion like Islam or Buddhism.

Protestant Republican presidents nominated nine of the 12. Reagan and the two Bushes nominated all the recent Catholics (six of the last seven) except Sotomayor. Obama nominated her.

Of course, four or five justices being Catholic may not mean much. Presidents appoint people for their politics, not their religion. Scalia insisted that he had to interpret the Constitution as it was written, whatever he thought about the issue at hand. The others claim to be doing pretty much the same thing.

In all my reading, I didn’t find a good answer to the question why we now have a Supreme Court dominated by Catholics. But it says something good that being Catholic no longer keeps a talented person off the court.

 

Mills is a member of St. Joseph Parish in Coraopolis and writes a weekly column for Aleteia (www.aleteia.org/author/david-mills).


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