Some Say Slant Is Dangerous; Others See Historic Victory
By Alan Cooperman
Washington Post Staff Writer
Monday, November 7, 2005; A03
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.
Like the overwhelming majority of Catholics across the country in the first half of the 20th century, most of the occupants of what became known as "the Catholic seat" on the high court were Democrats, even though two of them (Brennan and Pierce Butler) were appointed by Republican presidents.
In the view of Howard Gillman, a professor of political science at the University of Southern California, the possibility that five Catholics may soon sit on the court is less striking than the fact that all five are Republicans.
"It certainly is a dramatic reflection of the changing demographics of our parties," he said.
Since the 1960s, the Republican Party has made substantial inroads among Catholics, who are a quarter of the U.S. population and have roughly split their votes in recent presidential elections, tipping narrowly toward Al Gore in 2000 and then toward George W. Bush in 2004.
Why have recent Republican presidents turned again and again to Catholic jurists when making appointments to the Supreme Court? It may be partly an effort to woo Catholic voters, but mostly it's because so many of the brightest stars in the conservative legal firmament are Catholics, several scholars said.
Gillman believes that beginning in the 1960s, many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," particularly on abortion, funding for parochial schools and restrictions on religion in public places. "I think you're seeing the fruits of those efforts now," he said.
Bernard Dobranski, dean of Ave Maria School of Law, a Catholic institution founded in 2000 in Ann Arbor, Mich., said the number of highly qualified conservative Catholic lawyers is also a tribute to the strength of Catholic schools, the determination of immigrants to educate their children and a rich tradition of legal scholarship in the Catholic Church.
A hallmark of that tradition is the belief in "natural law," a basic set of moral principles that the church says is written in the hearts of all people and true for all societies. Though long out of favor in secular law schools, the natural law approach is resurgent among conservatives, Dobranski said.
Another reason for the prominence of Catholics in conservative legal circles is that many have graduated from Ivy League colleges and law schools. Attending those schools has practically been a prerequisite for the clerkships that launch high-flying legal careers.
Evangelical Protestants are also becoming more visible on Ivy League campuses and at top law schools. But, said Notre Dame's Bradley, "I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the 'natural law' thing."