Too Many Catholics on the Supreme Court?

Deal W. Hudson
April 11, 2010

With the upcoming retirement of Justice John Paul Stevens, the media have once again started counting the number of Catholics on the Supreme Court. A recent headline in the New York Times announced, “Stevens, the Only Protestant on the Supreme Court.”

Well, so what?

The Times article notes that Stevens’ retirement raises the possibility that the next Court might not include a single Protestant member – “something that would have been unimaginable a generation or two ago.” The present Court includes six Catholics, two Jews, and one Protestant (Stevens).

Even the New York Times will have to admit that Catholics have come a long way since the election of the first Catholic president in 1960. Much of the anti-Catholic prejudice of those days have passed, but obviously not all of it.

Why is it that the media start noting the religious affiliation on the Supreme Court now that Catholics predominate? Could this have anything to do with the media’s support for abortion on demand or gay marriage? Without a doubt, the mainstream media’s antipathy to Catholicism is directed at the Church’s moral authority.

The Times, however, doesn’t seem to realize that Protestantism is not a religion. Litvak makes the mistake of calling it “the nation’s majority religion.” Most people are familiar with Presbyterian churches; also Methodist, Baptist, Episcopal, Lutheran, and Church of Christ; but they’ve never seen a Protestant church or met anyone who belonged to the Protestant denomination. There’s no such thing, and anyone who uses “Protestant” as their religious affiliation is very likely not attending church.

You have to add all the adherents of all the Protestant denominations to make it the nation’s largest “religion.” In fact, Roman Catholics make up the single largest denomination – nearly 25 percent of the population, with Southern Baptists coming in second at 16.3 percent.

Litvak justifies counting Catholics with the observation that “society seems to demand that the court carry a certain demographic mix.” He notes the present concerns for the number of women, Hispanics, and African Americans on the Court, quoting Harvard law professor Mark Tushnet, who suggested, “The smartest political move would be to nominate an openly gay, Protestant guy.”

It’s typical of the postmodern attitude evinced by Tushnet that gender, sexual orientation, and ethnicity have to be considered when evaluating a person’s qualifications as an interpreter of the Constitution. From the postmodern perspective, a heterosexual man cannot represent the viewpoint of a lesbian woman regarding Constitutional matters, and so on.

The philosophical and theological traditions of Catholicism deny these postmodern presuppositions. Any one person is capable of looking at anyone else’s interests when it comes to interpreting the Constitution.

It’s unlikely there will be any media outcry if Obama nominates the leading candidate, Elena Kagan, who is Jewish. If the Court should reflect the proportion of adherents of the various religions, as Litvak suggests, then three Jewish justices vastly over-represent their 1 percent of the U.S. population. Does he object?

Litvak reports that Ruth Bader Ginsberg said, “Society is past worrying about a nominee’s religious affiliations.” That assertion is contradicted not only by the New York Times‘ pieces but by the plethora of articles throughout the media speculating on the religious affiliation of Stevens’s replacement.

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