Six of the justices on the Supreme Court are Roman Catholic: John Roberts, Bret Kavanaugh, Amy Coney Barret, Samuel Alito, and Clarence Thomas are all part of the now famous and influential conservative court. Another member of that ideological cohort is a justice raised and educated as a Catholic, Neil Gorsuch. A seventh Catholic on the Court is Sonya Sotomayor, but she is positioned squarely on the liberal side of the Court.
This reality raises substantive issues.
First: these six conservative Catholics were all appointed by Republican Presidents: Bush, Bush, and Trump. Bush the senior was an active Episcopalian; Bush the junior is a United Methodist; and Trump may be some form of generic Christian without substantive ties to any tradition. But the lawyers they have elevated to the Supreme Court are all Catholic (including Gorsuch). Why is this?
Numerous scholars and journalists have offered answers to this question. None seem compelling to me. The mystery remains: are there (or were there) no potential justices with Protestant, Jewish, Muslim, or secular connections that knew how to interpret the U. S. Constitution in a conservative way, as a strict constructionist, or (as they say now) as an originalist?
After all, the notion of the authority of an old document in its original form and with its original meaning has been popular in conversative religious circles for more than a century. In the Protestant world, this is called an inerrantist approach to the founding documents (the Bible).
Some claim their religious affiliation is merely incidental to their conservative ideology. I find this a form of deep denial, of relegating religious identity and religious commitments to the circumference of a person’s life and thought.
Of course, I must note that these six conservative Catholic justices themselves represent only one wing of the Roman Catholic intellectual spectrum. The social justice platform of the Roman Catholic Church is, according to contemporary political standards, quite liberal: supporting the poor, welcoming the (refugee) stranger, and opposing capital punishment.
Second: these six conservative Catholic justices are sure to interpret American law very differently than the Court did when it was dominated by Protestants. I will mention three issues before the Court this year on which the Court has already heard arguments or issued a decision or is soon to do so.
On the matter of church assemblies and public health, the Court has ruled consistently in favor of the religious assemblies. In general, church (and synagogue, temple, and mosque) meetings are free from public health protocols. This release from such common regulations is a response to an appeal from congregations claiming some sort of persecution by the state, a position popular in the white Evangelical culture.
On the matter of abortion, the Court appears poised to either overturn the right to an abortion or allow states to impose stronger regulations and shorter windows of opportunity, pushing back against the rulings of earlier Protestant courts. This may be incidental, but maybe not.
On the matter of tax support of religious schools, the Court appears also poised to require (not just allow) states to fund religious schools if they fund private schools in general. This also will break generations of precedent established by earlier Supreme Courts dominated by Protestants.
Some will claim these rulings are merely incidental to the religious convictions of the Justices. This might hold if there is no discernable pattern; and it might be yet too early to note any ideological pattern. But I am not the only one who sees a strong connection between religious identity and affiliation and legal ruling. Yes, they will find sufficient legal and historical justification for their rulings; but these links remain, even if in the shadows.
The final observation is this: the Religious Right all the way back to Rev. Jerry Falwell and President Ronald Reagan identified the Court at the key to winning the Culture War. If we can only get enough conservatives on the Supreme Court, they mused, we will turn back the secular attack on American values and make America great again.
But the reality is this: the Religious Right (and the Political Right) comprise a minority of the American population. They have fought against every advance in civil rights, gender rights, gay rights, minority rights, and even voting rights. The country has embraced these movements. Not all the judges in the country are able to reverse this tide and reinstate all the older social norms of whenever it was that America was great: whites over coloreds, straights over queer, men over women, Christian over anybody else.
Yes, the Supreme Court and their Catholic majority may restrict abortions, weaken voting rights, ignore minorities, and play favorites with Evangelical and Catholic churches. But not even these tendencies will stem the tide toward equality, freedom, opportunity, and diversity that is even now pulling us toward our dreams of “liberty and justice for all.” And the favoritism of this Catholic Court toward Christian privilege will, in the long run, nurture resentment toward the very constituencies that want to help; it will undermine the effectiveness of the wider and deeper Christian community to win friends and influence people for our vision of gospel-shaped community.
(December 2021)
