Following the death of Ruth Bader Ginsburg on Friday, Sept. 18, President Trump promised to swiftly nominate her replacement for the ninth seat on the Supreme Court. A little over a month later—and just one week before Election Day—Mr. Trump’s pick, Amy Coney Barrett, was confirmed by the Senate in a 52-48 vote and sworn in by Justice Clarence Thomas on Oct. 26. Justice Barrett, whose faith has been both scrutinized and applauded during her fast-tracked confirmation process, brings the number of Catholic justices on the Supreme Court to six.
Before the death of Justice Ginsburg at age 87, the Supreme Court included five Catholic justices (Chief Justice John G. Roberts, Samuel Alito, Clarence Thomas, Sonia Sotomayor and Brett Kavanaugh) and three Jewish justices (Ms. Ginsburg, Stephen Breyer and Elena Kagan). The ninth justice, Neil Gorsuch, was raised Catholic but reportedly attends an Episcopal church.
[Related: Abortion is the real reason the Supreme Court is broken.]
Catholic justices are frequently nominated by Republican presidents, including Mr. Trump, George H.W. Bush and his son George W. Bush. The current court’s exception is Ms. Sotomayor, who was appointed in May 2009 by President Barack Obama.
Two-thirds of the current Supreme Court were raised in the Catholic faith, though Catholics make up only about 20 percent of the U.S. population. (Catholics are also overrepresented on Capitol Hill: 31 percent of the 115th Congress, when sworn in last year, identified as Catholic.)
Since its establishment in 1789, the Supreme Court has gone from a reserve for white, male Protestants to the contemporary bench diversified by race, creed and gender, beginning with the breakthrough appointments of Thurgood Marshall (1967) and Sandra Day O’Connor (1981).
Supreme Court justices are nominated by the president and must be approved by a majority of the Senate. Once confirmed, justices serve until death—unless they resign or are impeached and removed by Congress.
Roger Taney was the first Catholic to be appointed, in 1836, but it took another 58 years for the second Catholic justice, Edward White, to serve. Eleven Catholics have been seated on the bench since then.
“There is a long tradition in the U.S. of Catholics entering the legal profession, most obviously law enforcement but in other areas as well,” said Richard Doerflinger, a fellow at the University of Notre Dame Center for Ethics and Culture. “And other devout Christians, who have been able to have some influence in Republican administrations, have been happy to support serious Catholic judges for the court.”
Mr. Doerflinger says that evangelical Protestants may more be reluctant to pursue legal careers because they often see “a sharper divide between the city of God and the city of man,” whereas Catholicism provides a natural bridge “between the founding principles of our nation and basic principles of Catholic social teaching.”
Also, Catholics, who long struggled with religious prejudice in the United States, “may have seen the legal profession as a way to ensure that their rights were protected,” writes Yonat Shimron at Religion News Service.
Historically, Catholics have chosen law as a career with greater frequency than have other religious groups. Indeed, in 1955, Catholic scholar John Tracy Ellis, in his essay, “American Catholics and the Intellectual Life,” sharply criticized American Catholic culture for steering its young people toward practical careers like the law or medicine, rather than humanities or the arts.
“While it is gratifying to learn that so many of the graduates of Catholic institutions pursue their studies beyond college by fitting themselves for the legal and medical professions,” Ellis wrote, “it is to be regretted that a proportionately high number do not manifest a like desire, or find a similarly strong stimulation, to become trained scholars in the fields where the Catholic tradition of learning is the strongest.”
Faith is only one lens through which to examine the contemporary Supreme Court. The overwhelming majority of Supreme Court Justices have hailed from elite private schools, for example, and at the moment, all eight members of the court have attended Harvard or Yale law schools.
“It’s important to note that the composition of the Supreme Court has never reflected the composition of the country,” wrote historian Elesha J. Coffman in a 2010 article for Christianity Today. “Throughout the court’s history, some groups—notably Episcopalians, Presbyterians, Unitarians, and Jews—have been significantly overrepresented in comparison to their prevalence in the American population.”
The Supreme Court, of course, is not supposed to be a place for applying religious principles to the law. The court’s purpose is to settle conflicting judgements from lower courts, and determine whether laws are in conflict with the Constitution or other federal laws.
“The court was called ‘the least dangerous branch’ because it can only tell you what the law means,” says Mr. Doerflinger. “[But] obviously there can be disagreements about interpretation.”
Two-thirds of the current Supreme Court were raised in the Catholic faith, though Catholics make up only about 20 percent of the U.S. population.
Richard Garnett, a law professor at the University of Notre Dame, told NPR in 2010 that the real division in the country is not between Catholics and Protestants, but is “more the kind of religious versus secular divide.”
“So for those Protestants in America for whom their faith is important, they can look to the court and say, ‘Well, we do see representation on the court of people like us—people who take their religious faith and religious traditions seriously,” Mr. Garnett says. “True, they’re Roman Catholics...not Baptists like us, but they take their religious traditions seriously.’”
In a 2006 newsletter for the Cushwa Center for the Study of American Catholicism, Mr. Garnett also wrote about Republican presidents’ search from a pool of well-qualified and experienced lawyers, who are “more likely than before to include many Catholics,” with “varying...views about statutory and constitutional interpretation or the role of federal judges.”
While the Supreme Court’s most “conservative” members are also Catholic, religious beliefs do not translate perfectly “into one jurisprudential camp or the other,” he added, citing the differing views of the late Catholic justices William Brennan and Antonin Scalia, who clashed over topics like the death penalty and abortion.
Rather, the court’s current composition reflects a step forward from former views of Catholicism as “un-American.”
Perhaps the nomination and confirmation of more Catholic justices represent “a victory over historic prejudice,” said Cathleen Kaveny, a law professor at Boston College. “It shows that Catholics have come fully into their own in the United States.”
[Read this next: The Supreme Court can’t solve all our moral disputes. It shouldn’t try.]
Editor’s note: This article was originally published on July 18, 2018. The introduction was updated on Sept. 21, 2020, to reflect developments following the death of Justice Ruth Bader Ginsburg, and on Oct. 27, 2020, following the confirmation of Amy Coney Barrett..
It’s all a corrupt Opus Dei
Because traditional Catholic teaching is in sync with the Constitution. Republicans want an originalist interpretation of the Constitution thus traditional Catholics make good choices. They won't contradict their religious beliefs when they faithfully interpret the law based on the constitution. Otherwise it is just might makes right and then chaos.
I believe you are not correct about Justice Sotomayor
I believe that the author is incorrect about Justice Sotomayor. 80 % of Catholics voted for Donald Trump and Mike Pence because of one issue. The non-Right of Women to exercise their God-given moral conscience concerning their own bodies. At the current moment We are experiencing the wisdom of such narrow moral authoriy. We need another Woman on the court from the West. We think differently out here. An Asian or Black American Woman can be found. Perhaps that can be your next article. John Churchman is right on too!
We’ve got OD’s number out here as well as more experience with the truth behind the child sexual scandal. Thanks for catchy headline
Just not enough research
Every Wall St. firm I worked for -- a majority of the compliance officers were Catholic -- of course most lived on "the Rock" -- and were responsible for policing minor infractions. The bigs who judged the major infractions (leading to the 2008 financial debacle) all went to Ivies, wore suspenders and preferred Chateaux Margaux to Bud..
Sotomayer is an inactive Catholic.
This article is very interesting in a way but rambling and pointless. I enjoyed reading it, but am left with the question, “So what?”
I would have thought that, from a journalistic point of view if for no other reason, an article headlined by asking the question "Why" would have somewhere in the text a sentence or paragraph beginning "Because."
Because Irish -Americans and Italian -Americans have "arrived". [ Though we've yet to have an Italian -American president].They are as educated as WASPS. They are now as default Americans [mainstream ]as WASP -Americans. Because due to the influx of many Latinos, the push is on to mainstream Latinos.
J Cosgrove; Originalism has no place in adjudicating the Constitutionality of an issue.[IMO]. Not only because ambiguity and imprecise phrasing is written into parts of it[ cruel and unusual punishment, what was a militia then and what's a "militia" now when we now have local police forces, state "militias", national guards and fifty state] but because mores and values change. Mankind is us now. It matter not what the framers thought at the time, why would it except for historical interest? What matter is what we think now, is right wrong, good bad, just or unjust, good or bad law. And anyway except where specified , the Constitution is a guide or frame. Just the phrase "interpret the law" ,when applied to the Constitution, tells us this. A law by definition is precise.
The fact that at the end of the constitutional convention, the country still had instititionalized slavery should give us pause regarding the mindset of the founders. While the thinking of those men is important as a touchstone for OUR thinking, it should not be a cage. Originalism is just another trick. I'll tip my hat once to originalism, though. The Founding Fathers were for the most part booze hounds and we should have never instituted prohibition.
Originalism does not confine anyone to the "mindset of the founders." The Constitution has been amended twenty six times to bring it into conformance with the updated wishes of "We the People." If we don't like the wording, or the Court's interpretation of the original text or of the First, or Second, or any other amendment, or we find it too vague, or outdated, or not reflecting our modern view of right and wrong, then it is for us, not the Court, to amend the Constitution to reflect our current views. In Article V, we reserve to ourselves the right to amend. An oath to preserve, protect and defend the Constitution of the United States refers to the Constitution as it is today--a document originally adopted, and subsequently updated, by We the People. Relying upon the Court to correct or update our work violates the Constitution itself and violates the fundamental principle of our democracy.
The founders had an immediate purpose which was to form a union. Some were libertarian, some elitist, some populist. Even if one is an originalist, originalists can differ on the meaning behind words and what the founders intended. Actually, what will happen will have nothing to do with any fancy philosophy. It will depend on the attitudes of the justices and the prejudices of the group they represent or sympathize with. In the case of Gorsuch and Kavanaugh, it will probably be the moneyed class and the corporations. Of course, they'll dress it up with fancy words. It's what lawyers do and do and do.
Stan
I believe you are evading Joe Dunn's point:
The Founders provided "an out" for the supposed dilemma of personal interpretation you pose ........Constitutional Amendment.
In the slavery issue which you posit as a springboard for you position, resolution was found in the 13th and 14th Amendments through the action of the States , action fully in accord with the oft ignored but all important 10th Amendment. In point of fact the 10th Amendment permitted many of the Northern States to outlaw slavery after the Constitution was adopted. . ...and many years before the 13th and 14th Amendments were passed.
You will recall that if outlawing slavery in every State were a principle of the founding of the Union, then the Constitution would simply never have even be ratified. So the Constitution is in fact a work in progress ....BUT BY AMENDMENT AND NOT BY THE THE JUDICIARY. An Originalist respects and reveres this principle while an activist/Living Constitutionalist finds it simply too cumbersome, too burdensome and too lengthy a process. The former understands the limits of his personal wisdom while the latter is confident in his own sense of "rightness" and wisdom. Adherents of the Living Constitution endorse adding words to the Constitution when they believe it is necessary to achieve a goal ....viz., the abortion rights issue is dependent on the word "privacy" which does not appear in the Constitution but rather was found by the Court in "the penumbra of the Constitution" . Thus magically what had always been a matter of State regulation under the 10 th Amendment was transformed into a new Federal Right.
Originalists consider that the opinions and decisions of the people, with the few exceptions enumerated in the Constitution , are intended to be effectuated at the State level ."Subsidiarity " was a principle of the Founders embedded in the Constitution long before it was annunciated as a bed rock principle of the Church.