Why do Catholics make up a majority of the Supreme Court?
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.
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.”
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..