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Shift called sign of tolerance

By Michael Paulson, Globe Staff  |  May 30, 2009

For the first 50 years of the Supreme Court, there were no Catholics on the bench, and for years after that, there was generally a single “Catholic seat.”

Obama seeks to quell dust-up over Sotomayor remarks. A10

But over the last two decades the number of Catholics on the court has dramatically increased, and now, if Judge Sonia Sotomayor is confirmed as a Supreme Court justice, there will be six Catholics on the nine-member court. The percentage of Catholics on the high court will be more than double the percentage of Catholics in the general population.

The preponderance of Catholics is occasioning quite a bit of chatter among court-watchers, who say it illustrates how much anti-Catholicism has faded as a public issue a half-century after the nation bitterly argued over whether to elect a Catholic president.

“It is surprising, and my first reaction, too, was ‘dang!’ ” said John H. Garvey, the dean of Boston College Law School. “The one sense in which it probably matters is that this very fact isn’t going to be a big deal. I’ll bet you $100 that this fact couldn’t prevent Sotomayor’s appointment, and that says something very nice about the religious tolerance of the American public.”

But scholars of religion and the Supreme Court also say that the court’s Catholics have spanned the ideological spectrum, from William J. Brennan Jr. on the left to Antonin Scalia on the right, suggesting that a justice’s Catholic faith does not predict how he or she will rule even on issues such as abortion and gay rights, where the Catholic Church has staked out clear positions.

“It’s clear that neither the politicians nor the public nor the media are making any equation at all between Catholicism and even those issues where the church has spoken so strongly,” said Nadine Strossen, a long-time court watcher as the former president of the American Civil Liberties Union and a law professor at New York Law School. “It’s a very positive development, when you get to a point where what used to be considered noteworthy diversity goes without notice.”

A spokeswoman for the US Conference of Catholic Bishops noted in an e-mail interview this week that Catholics are the largest religious denomination in the United States, and also increasingly well educated.

“As quality justices they make their decisions based on an intelligent understanding of the Constitution,” said the spokeswoman, Sister Mary Ann Walsh. “Catholic teaching urges these judges to work with integrity and to follow their informed consciences, which is compatible with the US Constitution.”

The religious makeup of the court has long been a subject of interest to politicians and scholars, and, with a handful of exceptions, for years there was one Jew, one Catholic, and seven Protestants on the court. But with the retirement this year of Justice David H. Souter, the court for the first time in the nation’s history will have no Episcopalians, and, even more astonishing given the history of the United States, if Sotomayor is confirmed there will be only one remaining Protestant justice, 89-year-old John Paul Stevens.

Some scholars suggest the number of Catholic justices is essentially random. Laurence H. Tribe, a professor of constitutional law at Harvard, called the majority of Catholic justices “sheer coincidence,” and, when asked if it would matter, said, simply, “probably not.”

But Garvey, the Boston College law school dean, pointed out that all of the current Catholic justices were appointed by Republicans who opposed abortion.

“Given the position of the Catholic Church on the question of abortion, it is not surprising that those presidents looking for pro-life nominees have fished in a pond that was richer in Catholics than the general population,” Garvey said.

Similarly, President Obama’s interest in appointing a Hispanic to the court made it likely that his nominee would be Catholic.

Robert F. Cochran, Jr., a law professor at Pepperdine University, suggested that there are elements of Catholic tradition, including its support, in modern times, for religious freedom, that make Catholics more appealing as nominees than resolute secularists or fundamentalists.

Several scholars suggested that as Protestantism’s dominance in American culture has receded over the last half-century, Catholicism and Judaism have become non-issues in court appointments, and the nation’s concerns about diversity have shifted from religion and geography to gender and race.

William G. Ross, a professor of law at Samford University, in Alabama, who has written about the religious affiliation of Supreme Court justices, says that the last Supreme Court justice whose Catholicism was a primary factor in his appointment was Justice William G. Brennan Jr., who was named to the court by President Eisenhower in 1956. Eisenhower, a Republican, was hoping the appointment would help him win Catholic votes in that year’s presidential election.

Although the Catholic Church strongly opposes abortion, Catholic justices have ruled in a variety of ways on the issue. Brennan was a strong supporter of abortion rights, and Justice Anthony M. Kennedy has been moderately so. Justices Clarence Thomas and Antonin Scalia have made clear they were prepared to overturn Roe v. Wade, while Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. are also thought to be open to returning the abortion issue to the states. Some of the court’s Catholic justices have supported capital punishment, despite the church’s opposition, and Kennedy has authored two recent decisions supportive of gay rights.

“There is no correlation between being Catholic and what your views are on the constitutional issues,” Strossen said.

Scalia addressed the role of Catholic faith in judging in 2007, speaking at Villanova University.

“The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge,” he said, according to the Philadelphia Inquirer. “Just as there is no ‘Catholic’ way to cook a hamburger,” he said to a murmur of laughter, “I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”

A few scholars allowed that a justice’s Catholicism might have some general influence on the personal experience they draw on to understand cases.

“To the extent that judges are shaped – as we all are, and as every judge is – by experiences, values, and moral commitments, we might expect that the Catholic faith and tradition have played a role in shaping a Catholic judge’s worldview,” said Richard W. Garnett, a law professor at the University of Notre Dame. “But . . . a judge’s worldview and personal experiences should not, as a general matter, determine the outcomes that judge reaches.”

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