The Supreme Court: Chock Full o’ Catholics

Republicans have worked tirelessly to undermine the Disestablishment clause, “the true genius” of our Constitution, and adding foes of “Roe” to the high court is part of that scheme.

In the first nation where government and religion were explicitly made separate — according to journalist and historian Garry Wills, the true genius of our founding, the one unique thing — we find ourselves with a Supreme Court with essentially seven Catholics, of whom five are political conservatives: Chief Justice John Roberts and associate justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett. Another conservative justice, Neil Gorsuch, was raised Catholic but reportedly attends an Episcopalian church, technically not Catholic but as close as a Protestant can get — “Catholic-Lite,” as the quip goes. Justice Sonia Sotomayor, appointed by President Obama, is also Catholic, but in the liberal/social-justice tradition.

The other two justices, Stephen Breyer and Elena Kagan, are Jewish.

If the makeup of the high court were to match the faiths profile of the country, one would expect it to be heavily Christian, but with four or five Protestants and one or two Catholics; then there would be one non-Christian (Jewish, Muslim, Buddhist, Hindu); and one or two judges unaffiliated with any religious faith.

Associate Justice John Paul Stevens, who retired in 2010, was the last member of the court raised in a Protestant faith.

It’s worth noting that current U.S. Attorney General Merrick Garland, nominated in March 2016 by President Obama after the death of Antonin Scalia and robbed of his chance to sit on the Supreme Court by bad-faith claims by Mitch McConnell, is Jewish. His spot was instead taken by Gorsuch.

I know we’re not supposed to talk about this because talking about religion in the context of politics is invariably used by the right-wing as an example of an “ongoing leftist atheistic attack on religious freedom.” (For the record, this writer is the grandson of a minister, was brought up as a Presbyterian, and served as a deacon and elder in that church when his daughters were young.) As a matter of personal faith, religion should not be the subject of any criticism, but when political ideology mixes into the dogma of a religion — morphing both the politics and the religion — criticism is called for. And more and more conservative political factions continue to try to wrest control of Catholic and Evangelical churches and push their dogmas into public policy. Politics has become religion, and vice-versa.

So, we’re not supposed to talk about it. Still, if our current Supreme Court were a candy bar (bouncy jingle, “Passin’ the Bar”?), would it be inaccurate to see “Chock Full o’ Catholics” somewhere in the ad copy?

But with so many “culture war” issues regularly coming before the Court, the religious imbalance seems worth noting, and noting regularly, if only to work the refs. (A major case concerning abortion rights is to be decided this coming term, Mississippi’s pre-viability ban after 15 weeks, but the Court may have just tipped its hand on that, voting 5–4 to not intervene against a near-total ban on abortion in Texas, which was purposely set up to be enforced not by the state but by private citizens, who are financially incentivized to bring lawsuits against abortion providers who provide an abortion after 6 weeks of pregnancy and anyone who helped the woman in any manner— including counselors, clergy, neighbors, family members, an Uber driver. Each defendant can be sued for $10,000, and they must pay their own legal fees even if they successfully defend themselves. The idea is to have citizens snitch on each other—let’s call it the Texas Stasi—to financially ruin abortion providers and intimidate everybody else.)

Working the refs is something the right excels at, by complaining constantly about a perceived loss of religious and personal freedoms resulting from the expansion of rights and freedoms for others. (Remember how the 2015 Obergefell v. Hodges decision in favor of same-sex couples marrying somehow managed to desecrate the wedding vows of so many conservatives?) Even in a global pandemic, nearly half of all Republicans cannot stand a government asking them to do something as simple as social distancing and wearing a mask, much less accepting a free life-saving vaccine.

As Nathaniel Manderson recently wrote in Salon, to many evangelicals (and fundamentalists of other faiths) countenancing same-sex marriage or even sensible rules in the worst public health crisis in a century represents an attack on their own insecurities around their religious faith:

Somehow this vaccine has become a symbol of government overreach, but what’s even more important to evangelicals is the idea that science is telling people of faith what is true. No matter how many evangelical leaders encourage their followers to get the vaccine, this rejection of scientific data is completely ingrained in the church, dating as far back as Galileo. It is and has always been about the fear of losing their faith.

This anti-science bent is the very reason so many conservative judges, specifically Catholics, are eagerly put forward by Republican presidents — with an expectation that these highest level refs — or “umpires,” as a folksy Chief Justice Roberts put it in 2005 during his confirmation hearings — will not only generally maintain the patriarchal cultural orthodoxy, including voting the “right way” to overturn same-sex marriage and to limit a woman’s ability to make her own health care decisions around pregnancy, but will reject the ever more compelling scientific data around climate change.

One might argue that these justices repeatedly voting on the side of corporate interests and dark money in politics is a reflection of Roman Catholicism itself, which has always been a less-than-forthcoming patriarchal monolithic institution, though the rise of Christian evangelical complementarianism, which teaches that women and men have distinctly different (i.e., complementary, with an “e”) roles to play in society, should be noted.

There can be no religious test of a nominee to the high court; still, the essential question is whether devout persons of any religion faithfully divorce themselves from a worldview informed by their beliefs. Specifically, can a Catholic who agrees to become an integral part of civil government in a pluralistic society forego his or her understanding of proper church-state relations as determined by Pope Leo XIII?

Understanding the overarching worldview inherent in a church that refuses to elevate women to positions of power or to properly bring men to account for criminal sexual behaviors, consider the following about just two members of the current court:

  • In November 2020, Associate Justice Samuel Alito gave a rancorous speech to the Federalist Society during which — in a litany of complaints about a “loss of religious freedom” due to COVID restrictions around church gatherings and health care providers not being allowed to deny women contraception — he whined that if he were to say publicly that marriage was only possible between a man and a woman, he might be labeled a bigot:

You can’t say that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry. That this would happen after our decision in Obergefell should not have come as a surprise. Yes, the opinion of the court included words meant to calm the fears of those who cling to traditional views on marriage, but I could see, and so did the other justices in dissent, where the decision would lead. I wrote the following: I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

  • Associate Justice Amy Coney Barrett has a deep connection with the charismatic fundamentalist group The People of Praise, which considers a husband the head of the family, someone to be obeyed. She’s not only an “originalist” (or “textualist”) in her approach to interpreting the Constitution, her thinking about male-female relations apparently goes back long before any of the waves of feminism were even ripples in the water.

Seeing that, as a “textualist,” she puts so much stock in the literal meaning of writings of the founders, Coney Barrett’s views of women’s rights might, then, jibe most with those of John Adams who famously dipped his quill in misogynistic ink after his wife, Abigail, had pleaded with him in a letter to consider the rights of women as he helped craft a constitution for the new nation. He responded with his withering: Depend upon it, We know better than to repeal our Masculine systems. A line (with telling capitalization) that works well for the modern-day GOP (modern-day GOP is a phrase that reminds one of George Carlin’s classic bit on oxymorons, like “jumbo shrimp”).

So, here we find ourselves, with six Catholic justices — seven raised in the faith — and only one, Sotomayor, who would likely take personal spiritual sustenance from the current Pope, Francis, because he is vested in the actual teachings of Jesus. (One wonders if the conservative justices really heard the key part of the Judicial Oath they were repeating, about doing “equal right to the poor and to the rich.” Their ongoing attacks on voting rights, for one thing, would indicate no.)

Speaking of ideologically conservative Catholics, American bishops recently voted to draft a statement to deny communion to anyone who supports abortion rights, and this appeared a political maneuver specifically targeting President Biden, a devout Catholic, because he supports women’s right to choose birth control and even abortion. In an opinion piece published in The New York Times in response to the bishops’ vote, no less a Catholic scholar than Wills noted that the church no longer tries to claim its anti-abortion stance as scriptural and gives a concise history of the so-called pro-life movement’s “cult of the fetus.”

Biden is only the second person elected president who happens to be Catholic. When John F. Kennedy ran for the presidency in 1960, the worry from conservatives, and some liberals, was that he would have a divided loyalty between his country and the Vatican. Kennedy had to fight anti-Catholic bias both in the primaries and in the general election. Richard Nixon, his Republican opponent, worked behind the scenes with the likes of Billy Graham and Norman Vincent Peale to frighten voters about Kennedy’s religious beliefs.

In a now-famous speech given about 6 weeks before the election in Houston to a conference of Southern Baptist ministers, Kennedy responded by saying:

Contrary to common newspaper usage, I am not the Catholic candidate for President. I am the Democratic Party’s candidate for President who happens also to be a Catholic.

Now the second president who happens to be Catholic is also being attacked, not by anti-Catholics but by conservative Catholics, who must think of him as a Catholic In Name Only.

For the courts, the problem does not seem to be religion itself — a 2020 report by the Pew Research Center shows that Catholics are all over the ideological spectrum, although it should be noted that white American Catholics skew conservative — but in the fact that there is a distinct conservative pipeline for lawyers, led by that aforementioned finishing school, the Federalist Society, with some 200 chapters at law schools around the country.

But why are so many Catholic judges being placed on the high court rather than, say, evangelicals who would carry the same antipathy toward Roe?

The answer may be found simply in the rigors found with expensive private schooling. As noted in an Associated Press article, by David Crary:

Charles Camosy, a professor of theological and social ethics at Fordham University, suggested that education was a factor in the high proportion of Catholic justices. “For many decades in the United States, Catholic schools were a much better option for serious students than were public schools, and in many cases still are,” he said. “It is possible that this accounts for a disproportionate number of Catholics getting into very good colleges and then into very good law schools.”

Private Catholic school education, with its emphasis on serious study — of language (often including Latin), of writing, of memorization of text — creates students who have the precise skills, patience, and discipline needed to excel in college and succeed in law school. The same might be said of those of the Jewish faith, where discipline and striving are cultural norms. (One could say the same for many immigrants to this country, who work hard to create a life from which their children can succeed.)

Conservative Catholic law school graduates may also be sought out over evangelical Christians because they can be counted on to be more, say, disciplined, to generally vote on the side of the patriarchy but not write decisions in other cases (e.g., on civil rights, on voting rights, on science) that might further discredit the judiciary.

Returning to Wills, in the introduction to his masterful Head and Heart: A History of Christianity in America, he writes of the genius of the disestablishment of the church at the founding:

Disestablishment was a stunning innovation. No other government had been launched without the protection of an official cult. This is the only original part of the Constitution. Everything else — federalism, three branches of government, two houses of the legislature, an independent judiciary — had been around for a long time, in theory and in practice. But Disestablishment was not a thing with precedents.

So, even a textualist well knows that the citizens of the United States of America were explicitly meant to not have a national religion, one that would set public policy and shape our lives. And yet we find ourselves encumbered with a Supreme Court, and a judiciary in general, increasingly stacked with people not only of the Catholic faith but also ideologically tutored, for the past 40 years, by the Federalist Society.

As Senator Sheldon Whitehouse (D-R.I.) explained in detail during the confirmation hearings on Barrett, the Federalist Society is just one arm of the right’s explicit scheme — his word — to remake the federal judiciary by packing it with conservative justices, promoting conservative justices, and pushing forward amicus briefs supporting cases coming before the court. (If you have never seen Senator Whitehouse’s explanation of these efforts — which, as he said, led to a Roberts court rulings 5–4 in 80 cases supporting dark money in politics, corporate interests, voter suppression, and the weakening of government regulations — it’s 28 minutes well worth your time, a civics lesson on how the right has perverted the judicial system in the same way they have the electoral system — to ensure they win.)

And a citizen’s right to marry whom they love, to have access to birth control and work with their doctor to make critical reproductive health decisions, to enjoy the right to vote unencumbered by threat or purposeful inconvenience, to live in a country with clean air and water, to be allowed to know who is putting big money behind issues and candidates — all of these things, and many more, hang in the balance.

Again, the Judiciary Oath says judges “will administer justice without respect to persons, and do equal right to the poor and to the rich.”

Religious freedom (the real kind, where one can worship, or not, as one sees fit) has flourished in the American system because of the genius of the Constitution’s disestablishment clause. We are not a theocracy, and yet our highest court — a court that acts as an unelected super-legislative body — is essentially seven-ninths Catholic. In addition, the Federalist Society’s ideological inculcation of law students and vetting of judges runs counter to the concept of an independent, disinterested judiciary. That the right has purposively coupled religion and ideology in systematically promoting judges to the federal courts is quintessentially un-American.

Also published on Medium