The makeup of the Supreme Court that recently declared that the right to seek an abortion is not protected by the Constitution is atypical in that its members are predominately Roman Catholic. Historically, this situation is highly unusual. Justices more often than not have been Protestants. According to Wikipedia, “[f]or its first 180 years, justices were almost always white male Protestants of Anglo or Northwestern European descent.”
The first Roman Catholic justice was Roger B. Taney, who was appointed Chief Justice by Andrew Jackson following the death of the incumbent, John Marshall. He served as Chief Justice from 1836 until his death in 1864. Taney is best known for his notorious opinion in Dred Scott v. Sandford. It isn’t clear that his Catholicism can be blamed for that decision, which was decided with only two dissenting justices. Taney, after all, was born into a wealthy, slave-holding Maryland family. No other Catholic was appointed to the court for 30 years after Taney’s death when, in 1894, Edward Douglass White joined the court.
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Nominations to the court have doubtless been made for a variety of reasons. In most cases, religion was likely not a primary consideration. One suspects, however, that Barrett’s nomination may have been an exception. She is something of an über-Catholic and was appointed by a president who promised to appoint justices who would reverse Roe v. Wade.
Senators are reluctant to make too much of a nominee’s religion, lest they open themselves to charges of prejudice. On the other hand, Americans have become increasingly sensitive to the need for diversity in both public and private institutions. The white/black and male/female mix of justices on the Supreme Court are not conspicuously objectionable. On the other hand, there are no Muslim, Native American, or LGBT justices. And why are there so many Roman Catholics? Should not senators show more concern for diversity in an institution as important as the Supreme Court?
For many disputes brought before the justice system, the Catholicism of a judge is of little consequence. In fact, there is a strong social justice concern among many Catholics that many would not label “conservative,” a label often applied to the current court supermajority. Unfortunately, that concern does not seem to apply to pregnant women. Just as belief in the perverse myth that the 2020 presidential election was stolen by Democrats has become a rock-bottom foundation of contemporary Republicanism, opposition to abortion, at least in the United States, has become a rock-bottom foundation of Catholic Christianity. It is not a topic on which the Church or its most rabid adherents are inclined to compromise. The Catholic majority on the Supreme Court made the decision in Dobbs v. Jackson Women’s Health Organization inevitable. Ironically, the Dobbs opinion is bad law argued more poorly than Judge Alito believes Roe had been.
The religious makeup of the Supreme Court is clearly a problem, one likely to affect other decisions related in some way to sex, a topic with which Catholicism seems obsessed. This court also seems to value religious freedom, construed in a way it has never before been understood, above all other freedoms. The court makeup is not easily or quickly changed. This is by design. The court is expected to provide long-term stability and to not be subject to the temporary whims of the populace. What we have discovered, however, is that on a wildly unbalanced court—one with too many Roman Catholic justices, for example—stability can be sacrificed for narrow philosophical or religious ends.
Court watchers are expecting that the coming court term is likely to see even more regressive decisions likely to disrupt the nation we thought we knew. It is time to consider changes to the court that will make it less subject to the whims of an unanticipated philosophical majority. Adding more justices to the court is the most obvious and simple check, though perhaps not the most likely or effective change. Barring that, the best we can hope for is the death of justices while the presidency and Congress are controlled by Democrats. In any case, presidents and senators should pay more attention to religious diversity in selecting Supreme Court justices.
Alas, our future with the current Supreme Court is not bright.