Catholics and the Supreme Court

COMMENTARY: There have been more than a dozen Catholics on the high court, and all of them have left their mark.

(photo: Pixabay)

The death of Supreme Court Justice Antonin Scalia more than one year ago marked not just the passing of one of America’s greatest jurists, but of one of the highest court’s majority-Catholic members. Catholics today comprise more than half of the Supreme Court, a dominance that would have been shocking to the first Catholic justices, who endured hostility and condescension from many in the country as they made their way onto the court. Justice Scalia was one of six Catholic justices, and while Supreme Court nominee Neil Gorsuch worships at an Episcopalian church, he was raised Catholic and attended Georgetown Prep in Washington, D.C., before embarking on his extraordinary legal career.

In all, there have been 13 Catholic justices (counting Sherman Minton, who became Catholic after he retired), and three of them have served as chief justice, a remarkable achievement, considering that the first Catholic justice was not named until 1834.

The first Catholic appointed to the U.S. Supreme Court was also the first Catholic chief justice, Roger Brooke Taney (1777-1864). Taney was nominated for the high court by President Andrew Jackson in the immediate aftermath of his rejection by the Senate as treasury secretary.

Jackson nominated Taney as an associate justice of the Supreme Court to replace the retiring Gabriel Duvall, but a vote was then put off by Jackson’s bitter political enemies, the Whigs, who controlled the Senate. In fact, the seat was left vacant for more than a year, until Philip Pendleton Barbour was confirmed to it in 1836. 

In the intervening period, however, the political tide turned toward the Jacksonian Democrats, and with the death of Chief Justice John Marshall during the 1835 recess, Jackson was able to nominate his close friend and adviser on Dec. 28, 1835. Despite angry opposition, Taney was confirmed on March 15, 1836. As chief justice, he was best known for the 1857 Dred Scott decision regarding slavery, which helped set the stage for the Civil War (1861-1865), not the first time — or the last — that a Catholic justice has chosen to act on the court in a manner contrary to the teachings of the Church. 

In a statement of the difficulty any president faced in nominating and confirming a Catholic justice because of the anti-Catholic atmosphere in the country, from the time of Taney’s death in 1864, there were no Catholics on the high court until Edward Douglass White (1845-1921) was appointed an associate justice in 1894 by President Grover Cleveland. In his years on the court, he earned a reputation for fairness and legal sagacity that prompted Republican President William Taft in 1910 to appoint the Democrat White as chief justice. A conservative member of the court, White wrote several hundred opinions and was noted especially for his role in establishing the so-called “rule of reason” in the antitrust cases against Standard Oil and American Tobacco Co. and, in the 1916 decision, upholding the constitutionality of the Adamson Act, establishing an eight-hour day for railroad workers. Meanwhile, in 1898, another Catholic was appointed, Joseph McKenna (1843-1926), by President William McKinley. 

The son of Irish immigrants, McKenna was noted for never crafting a specific legal philosophy, but he did author important decisions, including United States v. U.S. Steel Corp. (1920), in which the application of the “rule of reason” found fertile ground in an antitrust case.

Meanwhile, in 1923, Warren Harding appointed Pierce Butler (1866-1939), who served until his death. That appointment helped to create the unofficial but very real trend on the high court of a “Catholic seat,” the notion that Catholics ought to have at least one member on the court. As an associate justice, Butler wrote more than 300 majority opinions and 140 dissenting opinions and remained a staunch conservative voice. He and his fellow conservative justices, James McReynolds, George Sutherland and Willis Van Devanter, became known as the “Four Horsemen,” and Justice Oliver Wendell Holmes called him a “monolith.”

He was a fierce opponent of the “New Deal” initiated by President Franklin Roosevelt after his election in 1932, to the point that he was a specific target in Roosevelt’s effort in 1937 to pack the Supreme Court in his favor.

A year after Butler died, Roosevelt named Frank Murphy (1890-1949) an associate justice. Murphy proved a frequent supporter of individual rights and was opposed especially to the forced relocation of Japanese-Americans during World War II. In 1944, he dissented in the case of Korematsu v. United States and regretted that by upholding internment of the Japanese, the Supreme Court was falling into “the ugly abyss of racism.”

In 1956, the “Catholic seat” was filled by William Brennan (1906-1997), who was appointed an associate justice by President Dwight Eisenhower. Brennan proved a major disappointment to Catholics for his acceptance of the majority decision by the Supreme Court in the 1973 Roe v. Wade decision that legalized abortion under the specious argument of a constitutional right to privacy. Throughout his term, ending in 1990, he consistently voted with the liberal wing of the high court, and his retirement was welcomed by both conservatives and the entire pro-life community. By the time of Brennan’s departure, two other Catholics had been appointed. The first, in 1986, was Antonin Scalia, and the second, in 1988, was Anthony Kennedy. 

Scalia’s nomination was supported by liberals such as Mario Cuomo, and he was approved by the Senate in a vote of 98-0. He was the first Italian-American justice on the Supreme Court.  Considered one of the most articulate adherents of textualism, he was also ranked as one of the foremost conservative minds in modern American history. 

Kennedy was named to the court in the aftermath of the bitter defeat of the Supreme Court nomination of Robert Bork (a Catholic convert), one of the ugliest moments in modern political history.

Approved readily by the Senate, Kennedy has long been viewed as a “swing vote” on many crucial issues, including same-sex “marriage,” as was demonstrated by his key vote in the Obergefell case that redefined marriage.

Another brutal political fight surrounded the nomination in 1991 of Clarence Thomas, the first Catholic African-American justice, by President George H.W. Bush.

After overcoming the effort to destroy both his reputation and his nomination, Thomas was finally approved by the Senate and became, with Scalia and the non-Catholics Sandra O’Connor and Chief Justice William Rehnquist, the conservative wing of the court. Two more conservative Catholics were appointed by George W. Bush — John Roberts, who was confirmed in 2005 and is the third Catholic to serve as chief justice, and Samuel Alito, who was also appointed in 2005. Both are counted among the most conservative of the justices, especially with the passing of Scalia, although Roberts surprised legal observers with his vote to uphold vital elements of President Barack Obama’s Affordable Care Act (also called Obamacare).

Obama named Sonya Sotomayor to the court in 2010. She became the sixth Catholic justice on the court, the largest majority that Catholics have ever commanded, although she consistently votes with the liberals on the court, including in favor of same-sex “marriage” and against any case that might place any restrictions on abortion.

Catholics in the future will almost certainly be appointed to the high court, and with a few exceptions, they will build on the legacy of other Catholic justices, who have brought an important perspective to American jurisprudence, even as they have historically striven to be fair and impartial jurists.

As the late Justice Antonin Scalia observed in 2010: “I don’t think there’s any such thing as a Catholic judge. There are good judges and bad judges. The only article in faith that plays any part in my judging is the commandment, ‘Thou shalt not lie.’”

Matthew Bunson is

senior contributor

to the Register and EWTN News.