Court Could Tip to Catholic Majority

Supreme Court nominee Samuel A. Alito Jr. meets with Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). If Alito is confirmed, the nine-justice court will have a first-ever Catholic majority -- including the chief justice.
Supreme Court nominee Samuel A. Alito Jr. meets with Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). If Alito is confirmed, the nine-justice court will have a first-ever Catholic majority -- including the chief justice. (By Melina Mara -- The Washington Post)

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By Alan Cooperman
Washington Post Staff Writer
Monday, November 7, 2005

If Samuel A. Alito Jr. is confirmed to the Supreme Court, a majority of its nine justices for the first time will be Roman Catholics -- a fact that, depending on whom you ask, marks the acceptance of a once-persecuted minority, reflects the importance of conservative Catholics to the Republican Party or means practically nothing.

Four Catholics currently serve on the court: Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and the new chief justice, John G. Roberts Jr. From the moment that President Bush announced Alito's nomination, there has been an undercurrent of debate about the prospect of a five-member Catholic majority.

After Eleanor Smeal, president of the Feminist Majority Foundation, said that women, Latinos and people of "other religions, not to mention nonbelievers" would be underrepresented on the court, William Donohue, president of the Catholic League for Religious and Civil Rights, quickly fired back.

"Smeal didn't whine when Jewish nominee Stephen Breyer was slated to join Jewish Justice Ruth Bader Ginsburg on the Supreme Court. No, it's only when we have too many practicing Catholics that people like her complain," he said.

To many scholars, however, what's most impressive about the rising number of Catholics on the court is that it's a nonissue, at least compared with the blatant anti-Catholicism that dogged Alfred E. Smith when he ran for president in 1928 and that still faced John F. Kennedy in 1960.

"At the very least, it's a victory over historic prejudice, and it shows that Catholics have come fully into their own in the United States," said M. Cathleen Kaveny, a professor of theology and law at the University of Notre Dame.

Dennis J. Hutchinson, a court historian at the University of Chicago, noted that one of the most liberal Supreme Court justices of the 20th century, William J. Brennan, was a Catholic, and so is one of the most conservative, Scalia.

The religious affiliation of the justices is not a burning issue because "we've learned that Catholics can be conservative or liberal, and that in terms of judges, ideology trumps any sort of presumption about church doctrine -- and that's true whether the justice is a Protestant, a Catholic or a Jew," he said.

Hutchinson questioned whether it makes any real sense to speak of a "Catholic majority" on the court when the five men concerned may disagree on hot-button social issues. Kennedy, for example, has reaffirmed the court's 1973 abortion rights decision, Roe v. Wade , and has written recent decisions that struck down anti-sodomy laws and the death penalty for juveniles, provoking blistering dissents from Scalia.

Notre Dame law professor Gerald V. Bradley predicted that with the exception of Kennedy, the Catholic justices will be drawn together, for two reasons.

"One is their moral traditionalism, a position which is surely in line with their Catholic faith and which they hold, I should think, at least partly due to their faith," he said. "But it is mainly their honest view of the law and of the role of a judge that will cause them to congeal insofar as they do, and not really their Catholicism."

For 150 years, from 1836 to 1986, there was usually just one Catholic -- and never more than two -- serving on the Supreme Court at a time.


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