Saturday, June 20, 2009
With the nomination of Judge Sonia Sotomayor, the Supreme Court soon might have six Catholic justices. What makes that potential super majority even more remarkable is that there have been only 11 Catholic justices in the court's history and none during its first 50 years. How did we get to this point? Barbara Perry, a scholar of the Supreme Court and professor at Sweet Briar College, is working on a book about Catholics on the Supreme Court. Washington Post staff writer William Wan interviewed her about her research. Here is an edited transcript.
Q. What's the history between
Catholicism and the court?
A. It starts with the first Catholic, Roger Taney, who was installed as chief justice in 1836. But he wasn't appointed because he was Catholic. In fact, at the time, there was such rampant anti-Catholicism it was more of a prejudice to be overcome to get onto the court.
How do we go from that one guy to now five, possibly six, on the court?
There's something of an arc in this history. You start out with Catholic justices being a rarity. Then sometime in the 1920s, with Pierce Butler, you start seeing the concept of a "Catholic seat" forming, a position that passes from one Catholic justice to another. By the time you get to modern times, you have three Catholic justices appointed in quick succession [Antonin Scalia in 1986, Anthony Kennedy in 1988 and Clarence Thomas in 1991, who was originally an Episcopalian but later converted to Catholicism]. At that point, Catholicism goes from being an issue of representation to more of a nonissue. These days, the divide is much more over questions of liberal and conservative than over religion, as can be seen with Roberts and Alito. In those cases, Catholicism has served more as credentials to prove one's conservativism on abortion and church and state issues.
Can you elaborate on this concept of a "Catholic seat"?
This is in the vein of the supposed African American seat that Clarence Thomas filled when Thurgood Marshall retired, or the "Jewish seat" that existed from 1916 to 1969. It's a way to explain what's happening in our country in terms of group orientation. In this case, you start seeing talk about the need to replace one Catholic justice with another around the 1920s and you have an unbroken line for a while until President Truman stops it in 1949, saying he's not looking at the religion of his appointees. But in 1956 Eisenhower picks it back up when he appoints William Brennan. I interviewed Brennan in 1985 about all this, and Brennan basically agreed with the "Catholic seat" thesis. He said members of Eisenhower's administration even went to his priest and asked, "Is he a good Catholic?" Brennan felt it was important for minority groups and women to have representation on the court either symbolically or actively, but back then he told me: "Fifty years from now, no one will care about these things." And these days, you see concerns about representation for other groups, but at least with Catholics it's become a nonissue now.
How do you think Sotomayor's Catholicism would play into her decisions if confirmed?
From what the White House has said, she attends church for family and special occasions, so she's not a conservative Catholic in the mold of Scalia, whose son is a Catholic priest. Liberals and pro-choice are a little worried because, while the presumption is that she's a liberal, she has a thin record on abortion. On the spectrum of Catholic jurists, I'd guess she would turn out to be more liberal like Brennan. Brennan was more of a social justice type of Catholic.