A Catholic Majority on the Supreme Court: The Good News in Judge Alito's Nomination, and a Warning

By MICHAEL C. DORF
Tuesday, Nov. 08, 2005

If the Senate confirms Judge Samuel Alito as a Justice, then for the first time in American history, there will be a Catholic majority on the Supreme Court. In a country in which slightly over half the population self-identify as belonging to Protestant sects, only two of the current Justices--John Paul Stevens and David Souter--are Protestant.

Overall, these facts are signs of remarkable progress. Just forty-five years ago, when John F. Kennedy ran for President, there were real doubts about whether Americans could support a non-Protestant Commander-in-Chief. Fears of dual loyalty abounded.

Thus, in a country with a history of anti-Catholic bias, anti-Semitism, anti-Mormonism, and pogroms against Jehovah's Witnesses as recently as the 1940s, members of the majority religious group will, it seems, have just two of nine seats on the Supreme Court with nary an issue being raised. That fact shows that, in important respects, we have become a religiously pluralist nation.

Yet the news is not entirely good. As I explain below, there remain doubts about Americans' capacity for religious tolerance for persons of other faiths, and beyond the sectarian divisions, there appears to be a new line of battle being drawn. This line separates, on the one hand, non-believers and believers who treat their faith as a private matter, and, on the other hand, believers of all faiths who question the notion of church-state separation.

Is Catholicity a Reliable Predictor of Legal Philosophy?

Perhaps the most obvious reason why a Catholic majority on the Supreme Court does not trouble most Americans is that Catholicity has no clear bearing on how a Justice will vote. The leading liberal Justice of the last generation was the Catholic William Brennan, who voted to sustain abortion rights and gay rights, and categorically ruled against the death penalty, just as the leading conservative Justice of our generation is the Catholic Antonin Scalia, who has consistently voted against abortion rights and gay rights, and for the death penalty.

One could say that Brennan was following Church teachings on the death penalty, while Scalia follows Church teachings on abortion and homosexuality, but it seems much more likely that matters of legal doctrine, rather than theological doctrine, explain the divide.

Indeed, one can find in Justice Scalia's own judicial writings a direct and powerful assault on the notion that a Catholic Justice should pay any special attention to official Church positions. In the 2002 case of Atkins v. Virginia, the Court ruled that it was unconstitutional to execute a mentally retarded defendant. Taking exception to, among other things, the majority's invocation of a brief filed by the active Catholic Bishops of the United States, Justice Scalia obliquely invoked the Church hierarchy's failure to discipline child-molesting priests, in order to discredit their views: "The attitudes of" the Bishops, he wrote, "regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national (and entirely ecumenical) criticism."

Does Religious Affiliation Influence Exegetical Style?

In his 1988 book, Constitutional Faith, University of Texas law professor (and occasional Writ contributor) Sanford Levinson analogized approaches to constitutional interpretation to the differing attitudes of Catholics and Protestants to Biblical exegesis. For Catholics, the Word of God was to be mediated by Church teachings--an eminently sensible approach for a religion whose subscribers were, for most of its history, largely illiterate. Protestantism emerged after the printing press had come to Europe, and it encouraged the faithful to read and make sense of the Gospels for themselves, without the requirement of obedience to Rome.

Levinson sees a Protestant bent in those who would go back to the Constitution's original text, without paying much attention to the intervening pronouncements of earlier Justices. Thus, in this translation, textualism and originalism in constitutional interpretation are "Protestant" in style, while a strong attachment to evolution through accretion of judicial precedents is "Catholic" in style.

Levinson's provocative thesis is a very useful way of making sense of the debates within constitutional interpretation, but it is not, nor does Levinson claim that it is, a translation of individual Justices' actual religious affiliations.

Justices Scalia and Thomas are both Catholic in their religious affiliation, though "Protestant" (in Levinson's sense) in their attitude towards the authority of the original text; by contrast, the Court's two Protestants, Justices Stevens and Souter--along with its two Jews, Justices Ginsburg and Breyer, as well as one of its Catholics, Justice Kennedy--are "Catholic" (in Levinson's sense) in their attitude towards precedent.

So for the current Court, at least, religious faith has seemingly nothing to do with constitutional faith.

Distinctly Minority Religions

Let us not be too smug about the ecumenical spirit in the United States, however. A majority Catholic Court would mark a certain kind of progress, but Catholics are, after all, the largest religious denomination in the country, by far--comprising one quarter of the total population. And while two Jewish Justices is more impressive given that Jews are roughly two percent of the population as a whole, the prominence of Jewish lawyers and judges goes back a long way, to such luminaries as Benjamin Cardozo, Louis Brandeis, and Felix Frankfurter.

Our Supreme Court still has never included a Muslim, Hindu or Buddhist, despite the fact that these major world religions have growing U.S. populations. Were a President to nominate an otherwise-qualified Justice who subscribed to one of these faiths, can we be confident that his or her religion would not then be an issue?

Supreme Court doctrine suggests a certain blindness to religions outside the mainstream. Court cases upholding religious displays on public property tend to treat as non-denominational those displays that include non-sectarian Christian, Jewish, and secular elements, such as a crèche scene, adjacent to a Hanukah menorah, and, for good measure, plastic reindeer or Frosty the Snowman. But of course, from the perspective of a Muslim, Hindu or Buddhist, such displays are hardly non-sectarian.

A move from the term "Judeo-Christian" to "Abrahamic" would be a relatively small step that would redefine non-sectarian in a way that accommodates Muslims. But such a move would still leave polytheistic Hindus and non-theistic Buddhists, to say nothing of atheists, in the cold.

Some of the oral argument in last Term's cases involving the Ten Commandments centered on whether Jews and Christians subscribe to the same version of the Commandments, and on whether Muslims accept their authority, but even assuming that the answer to both questions were yes, where does that leave Hindus and Buddhists?

Perhaps nothing so dramatizes the outsider status of minority religious groups as the dismal record of religious freedom claims brought to the Supreme Court by Native Americans. They have been told (in Employment Division v. Smith) that they can be forbidden to engage in a ritual peyote ceremony, even as the state permitted sacramental use of wine by Christians and Jews. They have also been told (in Bowen v. Roy) that they can be required to identify their children by Social Security number in contravention of their religious beliefs.

Native Americans have even been told that land that is sacred to them can be used by the federal government for a not-very-important logging road because, as the Court stated in Lyng v. Northwest Indian Cemetery Protective Ass'n, "whatever rights the Indians may have to the use of the area, . . . those rights do not divest the Government of its right to use what is, after all, its land." Is it likely that a Court on which a Native American served could be so unmindful of how exactly the land fell into the government's hands?

Religious Affiliation and Attitudes Towards Church and State

Despite the fact that there remain outsider religious groups in the United States, developments over the last several generations--as symbolized by the Supreme Court's membership--suggest that room will eventually be made for members of minority faiths. Indeed, the American people may be more generous in this respect than Supreme Court doctrine has been. For example, in both the peyote case and the logging road case described above, the Native American plaintiffs won legislative victories after their court defeats.

If there is a religious divide--both on the Court, and in the country--it seems to be between those who believe it appropriate for religious convictions to play a very substantial role in public affairs, and those who do not. Two relatively recent events symbolize the divide.

Remarkably, during the 2000 Presidential election campaign, the fact that the Democratic Vice Presidential candidate was Jewish, did not seem to hinder the ticket, which won the popular vote. Indeed, Joe Lieberman's faith actually seemed to help Al Gore with strongly religious Christian voters, who liked the fact of his faith even as they adhered to a different one. At one point, Lieberman, who is himself observant, said that he thought morality was impossible without a religious foundation.

Justice Scalia voiced a similar sentiment during the oral argument in the Ten Commandments cases. He objected to the contention that the Ten Commandments could be displayed on public property because they had secular significance. Justice Scalia forthrightly acknowledged the Commandments' religious status but thought that this was no reason to remove them. "Our laws come from God," he provocatively declared.

In a sense, that is true. The vast majority of Americans root their own principles of morality and justice in religion, and based upon these principles, they vote for representatives who, in turn make our laws. Thus, our laws certainly come from our people's beliefs about God and what God wants.

But of course that is quite another thing from saying that our laws literally come from God in the way that people believe that the Bible or the Koran comes from God. And Justice Scalia knows it. In seeking the original understanding of the Constitution or a federal statute, he does not ask what God intended by the Fourteenth Amendment's protection of "the Privileges or Immunities" of national citizenship, or the definition of "income" in the Internal Revenue Code. He asks what people, at the time these provisions were adopted, thought they meant.

In saying that our laws come from God, Justice Scalia was signaling an attitude towards a range of issues such as abortion, the death penalty, gay rights, and even public nudity, as to which he would credit simple moral condemnation as a sufficient basis for legislative action restricting individual freedom. The fact that such moral condemnation is rooted in religion, Justice Scalia thinks, is sufficient to underwrite the laws.

Other Justices, including Catholics like the late Justice Brennan and Justice Kennedy, have typically demanded secular justifications in the sense of concrete harms, as essential for limiting what they consider fundamental constitutional liberties.

The crucial question for the Senate as it takes up Judge Alito's nomination is not his religion as such. But whether he is "Catholic" or "Protestant," in the senses used by Professor Levinson, matters a great deal. To what sources will he look, and in what relative degrees, to construe the Constitution and our laws? That is a perfectly appropriate subject for Senate inquiry.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.