Amy Coney Barrett, President Trump's nominee to the Supreme Court, would join five other Catholic justices (clockwise from top right): Brett Kavanaugh, John Roberts, Sonia Sotomayor, Clarence Thomas and Samuel Alito.
ILLUSTRATION: SEAN MCCABE; PHOTOS: BLOOMBERG NEWS (THOMAS, KAVANAUGH, SOTOMAYOR); GETTY IMAGES (ALITO, ROBERTS, BARRETT)Many people, and not just Catholics, see anti-Catholic bigotry at work here. But that’s not primarily what’s going on. The politicians pressing these judicial nominees are heavily invested in the positions their party has taken on key constitutional questions. When they encounter judicial nominees who have expressed skepticism about the constitutional basis of those positions, they are willing to throw everything at them, including the insinuation that Catholic nominees’ legal views may be unduly influenced by their religious faith.
This is a risky move, inviting the charge of playing on old prejudices against Catholics. But there is no real evidence that these politicians harbor a general hostility to the equal dignity of Catholics in American public life. The willingness of some Democrats today to play on anti-Catholic tropes about “dogma”—the kind of thing that Democratic presidential candidates Al Smith and John F. Kennedy once endured—is purely a sign of their political anxiety, not of concerns about “papist” judges.
The real history of Catholic justices on the Supreme Court is mostly a story of the happy irrelevance of their faith, except in the trivial way that religion has sometimes mattered in an interest-group spoils system. The first Catholic on the Supreme Court was its fifth chief justice, Roger B. Taney. A native of Maryland (which began as a Catholic colony), Taney had served Andrew Jackson faithfully, and when Chief Justice John Marshall died in 1835, he had his reward. There is no record that his Catholicism mattered in the least.
Chief Justice Roger B. Taney, the first Catholic on the Supreme Court, in 1857.
PHOTO: GETTY IMAGESThe same can be said of the next Catholic on the Court, Sen. Edward Douglass White of Louisiana, appointed associate justice by Grover Cleveland in 1894 and elevated to chief justice by William Howard Taft in 1910. If anti-Catholic bigotry ever lay in White’s path, it didn’t prevent him from becoming the Democratic majority leader in the Senate, where he was so popular that his nomination to the Court by Cleveland was confirmed the same day it arrived. White was joined by another Catholic justice, Joseph McKenna, in 1898; his seat would become the Court’s informal “Catholic seat,” occupied by Pierce Butler (1922-39), Frank Murphy (1940-49) and William Brennan (1956-90).
Aside from playing to the Catholic vote, the religion of these justices seems to have been a matter of utter indifference to everyone. Regional claims to Supreme Court seats once mattered a lot—a legacy of the days of “circuit riding”—so the fact that McKenna hailed from California, Butler from Minnesota, and Murphy from Michigan mattered much more than their Catholicism. None of them faced the kind of raw bigotry that confronted the first Jewish justice, Louis Brandeis, in 1916—though happily that seems to have been the last time anti-Semitism was a serious factor in a Supreme Court nomination.
When Antonin Scalia was appointed to the Court in 1986, he was the seventh Catholic justice (and the first Italian-American). Since then, there have been six others, meaning that the majority of all the Catholic justices in history have served in the last 3½ decades. If a 14th, Amy Coney Barrett, is confirmed, the Court will have six Catholics, two Jews and one Anglican.
Has anything distinguished the Catholic justices as a group? Not really. They have run the gamut from reactionaries (Taney, Butler) to progressives (Murphy, Brennan), and more recently have included devotees of both originalism (Scalia, Samuel Alito) and the living Constitution (Anthony Kennedy, Sonia Sotomayor). There is a widespread belief among scholars of the Court that Pierce Butler dissented in the 1927 forced-sterilization case of Buck v. Bell because of Catholic opposition to sterilization and eugenics, but since he didn’t publish an opinion, this is speculation.
What accounts, then, for the recent preponderance of Catholic justices? All but Justice Sotomayor have been appointed by Republican presidents, and their Catholicism has often been seen as a proxy for their presumed or hoped-for willingness to overturn Roe v. Wade, which has been the poison pill of our constitutional politics since 1973. It’s easy to forget that Anthony Kennedy’s Catholicism was supposed to reassure pro-life Republicans following the defeat of Robert Bork (a critic of Roe who years later converted to Catholicism), though the hope that Justice Kennedy would vote against Roe proved to be very wrong.
The Catholicism of a nominee is considered a plus by Republicans hoping for the demise of Roe v. Wade.
If the Catholicism of a nominee is considered a plus by Republicans hoping for the demise of Roe, it is understandable that it should send shudders of apprehension through the ranks of Democrats, for whom abortion rights are now a nonnegotiable plank of their party’s platform. But they would have exactly the same apprehension if a GOP president nominated an Orthodox Jew, Southern Baptist or conservative Muslim whose record included originalism in interpreting the Constitution, skepticism about judicially invented constitutional rights, and any sign of fidelity to the pro-life teachings of their faith.
The politics of nominations to the Court are now simply inseparable from the legacy and future of the abortion precedent. Every president and most senators decline to ask nominees directly about it, and no nominee would answer if they did. So one party is willing to gamble on Catholic appointees in hopes of bringing Roe down, and the other is willing to risk looking anti-Catholic to safeguard the status quo. Pro-lifers and originalists want Roe overturned for reasons that need no rehearsal here. But the demise of Roe might also restore the historically normal and salutary apathy of presidents, senators, voters and journalists about the religion, Catholic or otherwise, of Supreme Court justices.
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—Mr. Franck is associate director of the James Madison Program in American Ideals and Institutions, and lecturer in politics, at Princeton University.
Appeared in the October 10, 2020, print edition.
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