Alito complained about “respectable people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs.” He said he thought the Constitution settled the question long ago with its guarantee of religious freedom.
The A.P. article links these concerns to the fact that “the Roman Catholic Church endorses positions on several high-profile legal issues, including abortion, the death penalty and gay marriage.”
There is an unspoken assumption here – that the church membership of other justices is not meaningful, or that those faith traditions do not hold positions on any of these high profile issues. The dominant religious tradition in America is Protestantism, in its many denominations. For most of the 200 years of U.S. history, the Church has had a majority of Protestants.
Of all the justices we’ve ever had, a total of 7 justices, or 6.3% of the total, have been Jewish, including two currently on the bench. Eleven (almost 10%) have been Catholic, and one had no Church affiliation. Nearly a third of all Supreme Court justices – 35 of them – have been Episcopalian, and almost 20% were Presbyterian. There have been several Unitarians (10); most of the rest had some type of Protestant church membership except for the one non-affiliated judge.
If one goes by opinion polls, the Episcopal, mainline Presbyterian, Unitarian, and Reform Jewish traditions also have positions on the high-profile legal issues. For the most part, they promote a choice approach to abortion. Official statements calling for the abolition or a moratorium to the death penalty have been issued by the Episcopal Church, the Presbyterian Church USA, the Unitarian Universalist Association, and three rabbinical organizations. Many of these religious groups have been in the news for disputes about ordaining gay or lesbian clergy, or for blessing same-sex unions.
On some of these issues, the positions of the religions of the justices are not closer to the average American opinion than the Catholic Church, perhaps even further from the opinion-poll average. As to the beliefs of the individual justices – Protestant, Jewish, or Catholic – we simply can’t know.
What can one make of this concern about the 6 Catholic justices? Why is Justice Sonia Sotomayor’s Catholic affiliation seen as more relevant than the Episcopalian affiliation of Justice David Souter whom she replaced on the bench? Clearly there are some unspoken assumptions here, but it’s hard to determine what they are.
One possibility, hinted at by Justice Alito in his remarks, is the idea that Catholics are somehow pawns of their Church, less able to think for themselves, than members of other faiths. Another version of that position holds that Catholics will use Catholic teaching, rather than the law, in reaching judicial decisions. Or that their Catholic upbringing will subtly influence their decisions. Are they the only ones whose faith and legal positions are in alignment?
In 1973, when the Roe v Wade decision was written by Methodist Justice Henry Blackmun, no one saw him as a pawn of the United Methodist Church. Yet it had, at its General Conference a year earlier, passed a resolution titled Birth and Death which included a clause on abortion: “We support the removal of abortion from the criminal code, placing it instead under laws relating to other procedures of standard medical practice.”
Within a year of that passage, the justice who was a member of that Church had effectually carried out the legal change called for in that resolution. The fact that his membership was invisible to the press and the general public points to the second possible reason that the six Catholic justices have received so much attention: mainstream Protestantism, while numerically less and less significant, is still seen as the predominant American ideology. It is normal – so only departures from it are deserving of comment.
This may be the source of Justice Alito’s frustration. Episcopalian, Presbyterian, Lutheran, and Jewish justices sat with him on the bench. Their governing religious bodies have been active on a variety of legal issues – and yet their affiliation with these “mainstream” denominations is normalized.
There is a perception that somehow, one’s religious belief – whatever it is – can be tucked away so that it has no influence on one’s thinking. Yet the foundational values from which one operates – be they secular humanist or religious – will inevitably have an effect on one’s thinking. It’s surprising that the press has only thought about this with regard to the Catholic justices.