What role does religion play in Supreme Court justices’ nominations and decisions?

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(OPINION) What role does religion play in Supreme Court justices’ nominations and decisions?

By a thin margin, Amy Coney Barrett won confirmation to the U.S. Supreme Court without the quizzing about her devout Catholicism like Senate Democrats Diane Feinstein raised with Barrett’s lower-court nomination and Kamala Harris (now apparent vice president-elect) with another judicial nominee. But the media pushed this theme, including her involvement with People of Praise, a close-knit community of “charismatic” Catholic families.

This was perhaps the most intense discussion of a nominee’s religion since Louis Brandeis (a justice 1916-39) became the Court’s first Jew following the agony of history’s longest confirmation process, with 19 hearings. Ostensibly, critics questioned his entanglements as a Boston lawyer, but Democratic stockbroker William F. Fitzgerald gave the game away by regretting the nomination of a “slimy fellow” with a “Jewish instinct.”

A smaller dustup involved Democratic nominee Hugo Black (on the Court 1937-71). He was denied the usual automatic deference granted a fellow U.S. Senator when reports emerged that as a young lawyer he joined the Ku Klux Klan, with its hatred of African-Americans, Catholics, and Jews. Journalists only proved his KKK membership after a strong Senate vote for confirmation.

The Brandeis breakthrough launched an unwritten tradition of the Court’s “Jewish seat,” also filled by the religiously agnostic Benjamin Cardozo who overlapped with Brandeis (1932-38), Felix Frankfurter (1939-62), Arthur Goldberg (1962-65) and the unfortunate Abe Fortas (1965-69). After a long gap, Ruth Bader Ginsburg began her celebrated tenure (1993-2020). There was also a “Catholic seat” line with Pierce Butler (1923-39), Frank Murphy 1940-49), William Brennan (1956-90), and Antonin Scalia (1986-2016).

The first Catholic on the Court was Chief Justice Roger Taney (1836-1864), who is not loudly hailed because he wrote the Dred Scott decision that’s widely blamed for precipitating the Civil War. The ruling, backed by six of the Court’s eight Protestants, declared that neither slaves nor free Blacks could sue in federal courts and that Congress had no power to bar slavery in the western territories.

With Barrett now added, the current Court has an unusual mix of six Catholics (also Chief Justice John Roberts, Samuel Alito, Brett Kavanaugh, Sonia Sotomayor, Clarence Thomas), one Catholic turned Episcopalian (Neil Gorsuch), and two Jews (Stephen Breyer, Elena Kagan). In the view of Nomi Stolzenberg, law professor at the University of Southern California, this pits six conservative Christians against “a liberal wing reduced to one Catholic [Sotomayor] and two Jewish — but all secularist — justices.”

Stolzenberg surveyed these religious affiliations for The Conversation, and underscored that today’s justices demonstrate the remarkable assimilation of U.S. Catholics and Jews following long WASP hegemony. In the Court’s first 190 years, 90 of the 101 justices (all male) were Protestants, mostly from the then-dominant “mainline” churches with roots in Colonial times. That’s if we count as “Protestant” a Unitarian, former President and Chief Justice William Howard Taft (1921-30).

Does justices’ religion affect their votes? William O. Douglas (1939-75), famed for ardent Democratic liberalism and his four marriages, was the son of a Presbyterian home missionary who died when the future justice was only six. He blamed his clergyman father for leaving the family destitute. Was it mere coincidence, then, that Douglas rarely if ever supported a religiously based plea before the Court?

Hugo Black was a Southern Baptist and Bible-class teacher a la President Jimmy Carter. This heritage doubtless shaped his assertions in the pivotal 1947 Everson ruling that federal and state laws cannot “aid one religion, aid all religions, or prefer one religion over another,” and that the Constitution’s First Amendment erects “a wall between church and state” that “must be kept high and impregnable,” thus limiting aid to religious schools.  (Today’s Southern Baptist Convention disagrees.)

Speaking of which, what does it even mean to be a Catholic justice? Anthony Kennedy (1988-2018) ignored his church’s teachings to provide the needed swing vote for liberal 5-4 decisions on two hotly-contested moral disputes.

When the Court legalized same-sex marriage in the 2015 Obergefell case, Kennedy wrote the majority opinion, joined by the Catholic Sotomayor and then Breyer, Ginsburg, and Kagan, in accord with their non-Orthodox Judaism. Dissenters Alito, Roberts, Scalia, and Thomas were not just Catholics but conservatives who added concern that the Court did not defend the rights of religious traditionalists.

Regarding abortion, Democrats and liberals fear newcomer Barrett’s conservative Catholicism will help undermine this right. When the Court legalized abortion choice nationwide in the 1973 Roe v. Wade edict, Brennan, the Court’s only Catholic at the time, agreed, while an Episcopalian and a Lutheran dissented. Kennedy then co-authored the 1992 Planned Parenthood v. Casey decision that upheld and further defined abortion rights, while conservative Catholics Scalia and Thomas fervently disagreed.

Especially since 1987, when Senate Democrats (including apparent president-elect Joe Biden) “borked” and rejected nominee Robert Bork, religious affiliation as such has become unimportant in pitched Court nomination battles compared with ideology. The recent conservative Catholic nominees benefited from support by the “religious right” movement, which encompasses various faiths but is led by “evangelical” Protestants. And yet in this culture-war era the Catholic-and-Jewish Court includes no justice who identifies as evangelical — nor an Eastern Orthodox Christian, Orthodox Jew, Latter-day Saint, Muslim, or overt atheist.

Richard Ostling is a former religion reporter for the Associated Press and former correspondent for TIME Magazine. This piece first appeared at Get Religion.