Sunday, Aug. 23, 2009

The Catholic court

When Sonia Sotomayor was sworn in as a justice of the U.S. Supreme Court by Chief Justice John Roberts, one other justice was there. He was Anthony Kennedy.

They, like Sotomayor, are Catholics. That’s not a surprise in this court. If you were blindfolded and were told to pick any justice out of the full Supreme Court, the odds are two to one that you would pick a Catholic.

Of the nine justices as of now, six are Catholics. Until recent years, that would have been surprising, to say the least. From the time the court was created in 1768 until 1836, there were no Catholic justices.

A book in progress by Barbara Perry, a professor at Sweet Briar College in Virginia, says that a Catholic on the court in that period was unheard of for so long because there was “rampant anti-Catholicism” in the nation.

There were few Catholics on the Supreme Court in the next 150 years. Only six justices of the faith (not counting one who retired from the court and then converted to Catholicism) were chosen until the 1980s.

So today there are the six, and two Jewish Supreme Court justices and only one Protestant, and he is listed that way rather than by a denomination. Over the years the court’s 111 justices have represented 12 different religions, including one Huguenot and one Quaker. Nearly half of the roster of Supreme Court justices has been represented by Episcopalians (35) and Presbyterians (19).

Considering religions as political entities, Catholics can make a good argument that they are shortchanged when it comes to nominating judges from their “party.“ The national population is 24 percent Catholic. Episcopalians and Presbyterians together are only about 5 percent of the national population.

The Catholic issue came up immediately last spring when President Obama announced his choice of Judge Sotomayor for the Supreme Court vacancy. He had campaigned in 2008 promising that as president he would “preserve a woman’s right to choose.”

What the president said or meant is not a certainty. The vacancy Judge Sotomayor fills is the one Justice David Souter held for 19 years. He was thought to be a conservative New Hampshire Yankee (and Episcopalian) who was selected by President George H.W. Bush. Thought to be against abortion, he was a liberal vote in the last 17 years — usually providing the majority vote in 5-4 pro-abortions decisions.

Following the debate this year on the issue, in the Senate and in sermons and in bars, I recalled author Jeffrey Toobin’s 2007 book “The Nine” about the Supreme Court. Here is what he wrote about Justice Anthony Kennedy:

“Kennedy was a serious Catholic who went to Mass every Sunday and prayed in the old-fashioned manner, hands clasped before him. Abortion repelled him. He fully adopted his church’s teachings on the subject. But Kennedy knew the difference between his duties as a judge and his convictions as a Catholic.”

He has joined the justices who upheld Roe v. Wade, the Supreme Court decision allowing women’s right to have abortions. Kennedy had earlier called Roe v. Wade “the Dred Scott of our time.” But he has written that “The hard fact is that sometimes we must make decisions we do not like.’’

Right, and here is a P.S. for the record: That 1857 Supreme Court decision, which sanctioned slavery and led to the Civil War, was written by the chief justice, Roger Taney — who was from Maryland, a slave state, and was a Catholic.