Justice Brett Kavanaugh and the Supreme Court’s Catholic majority
NEW YORK – The U.S. Supreme Court isn’t only the highest court in the land, its judges have the responsibility to rule on cases that have a lasting impact on American politics, culture and religion. Driving those changes going forward will be a Catholic majority of justices who have become increasingly conservative, shifting the balance of the court for years to come.
The bitter partisan divide over Brett Kavanaugh’s confirmation to the Supreme Court – including weeks of debate over the credibility regarding allegations dating back to the 1980s that he had sexually assaulted a fellow teenager at a party – revealed how polarized politically the country has become since President Trump’s election just two years ago. To conservatives, Kavanaugh is a man smeared with unproven accusations; liberals consider him a danger in the #MeToo age.
Just 20% of people in the United States identify as Catholic, a number that is in decline, according to a Pew Research study. As the president has vowed to chip away at abortion rights (legalized in 1973 by the court in the Roe v. Wade decision), it will be conservative Catholics who will be tasked with doing so in the coming years. Aside from Kavanaugh, the Catholics on the Supreme Court include Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Sonia Sotomayor. With the exception of Sotomayor, the other four justices are part of the court’s conservative wing. The remaining justices – Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan – are Jewish.
“I do think, however, that the Catholics on the court do fairly represent Catholicism. Roe v. Wade is only one of many issues that are important to Catholics,” said Anne Lofaso, a professor at West Virginia University College of Law. “Indeed, most Catholic abhor abortion. They split on the question whether the government should prohibit others from exercising their right, not so much on whether they would have an abortion. There is a spectrum of issues that Catholics care about ranging from what constitutes marriage, abortion, birth control, poverty, etcetera. People are not monolithic. We tend to pick and choose what aspects of who we are will be emphasized – hence, the phrase ‘cafeteria Catholic’ … Roberts and Alito represent one end of the spectrum. Sotomayor, a lapsed Catholic, represents another.”
“I do think that the Catholics on the court do fairly represent Catholicism. Roe v. Wade is only one of many issues that are important to Catholics. ”
Some critics have called the current makeup of the Supreme Court a “Catholic boys club” given that they dominate the majority and are male conservatives. The reasons for this vary. While Evangelical Christians are very politically active, Catholics tend to attend law school in larger numbers as a career goal to reach the middle class. It also helps that there are a lot of Catholic centers of higher education. For example, one out of every 10 American law students are enrolled in a Jesuit law school. There are currently 28 Jesuit colleges and universities in the United States. Of these institutions, half also have a law school.
“For a lot of Catholic and Jewish immigrants, law school was – in a very real way – a ticket to the middle class,” said Richard Garnett, a law professor at the University of Notre Dame.
When the Supreme Court was first established in 1789, its first members were Protestant. Of the 113 justices who have been appointed to the Supreme Court since then, 91 have been from various Protestant denominations. The breakdown includes 33 Episcopalians, 18 Presbyterians, nine Unitarians, five Methodists, three Baptists and lone representatives of other denominations. For example, William Rehnquist, who served as chief justice until his death in 2005, was the Supreme Court’s only Lutheran member.
As the court continues to hear important cases, its makeup has shifted from its Protestant roots. Following the retirement of John Paul Stevens in June 2010, the Supreme Court has had an entirely non-Protestant composition for the first time in American history. Although Neil Gorsuch, appointed by President Trump last year, worships at an Episcopal church, he was raised Catholic. It remains unclear if he considers himself a Catholic or Protestant.
The first Roman Catholic on the Supreme Court was put there by President Andrew Jackson in 1836 following the appointment of Roger Taney. The second, Edward Douglass White, was appointed as an associate justice in 1894 and went on to become chief justice. Joseph McKenna was appointed in 1898, giving the Supreme Court two Catholics until White’s death in 1921. This marked the beginning of a tradition of having a “Catholic seat” on the Supreme Court. President Dwight Eisenhower appointed William Brennan, a Catholic, to the court in 1956 – a move that would have a lasting impact on abortion laws in this country.
Catholic justices have had controversial legacies. Taney penned the decision in Dred Scott v. Sandford case in 1957, maintaining that those of African descent could not be US citizens. The ruling is widely considered to be the court’s worst decision. After the Supreme Court ruled in Roe v. Wade, devout Catholics compared that decision to Dred Scott – calling for Brennan to be excommunicated by the Vatican. Ironically, some had opposed his nomination on the basis that he was a Catholic, arguing he would rely on his religious beliefs – rather than the Constitution – when ruling on cases.
Religious litmus tests are conducted to this day. Last year, Sen. Dianne Feinstein, a Democrat from California, confronted Amy Coney Barrett, a former Notre Dame Law School professor, about her Catholic faith during a confirmation hearing to the 7thCircuit Court of Appeals.
“Why is it that so many of us on this side have this very uncomfortable feeling that… dogma and law are two different things,” Feinstein said during the hearing. “And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”
Barrett, who has become a favorite among religious conservatives, was on Trump’s shortlist of Supreme Court nominees and could someday be nominated should there be another vacancy during Trump’s time in office. With Kavanaugh’s confirmation to the Supreme Court made official following a Senate vote on Saturday, expect the battles to continue. In an Op-Ed piece that appeared in the Wall Street Journal a day before his confirmation, Kavanaugh wrote: “Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good.”
In her speech in support of Kavanaugh before the vote, Sen. Susan Collins, a Republican from Maine, said, “Interest groups have speculated that Judge Kavanaugh was selected to do the bidding of conservative ideologues, despite his record of judicial independence. I asked the judge point blank whether he had made any commitments or pledges to anyone at the White House, to the Federalist Society, or to any outside group on how he would decide cases. He unequivocally assured me he had not.”