A Supreme Court without Protestants Does It Matter?

By Scheb, John M.; Sharma, Hemant Kumar et al. | Judicature, July/August 2010 | Go to article overview

A Supreme Court without Protestants Does It Matter?


Scheb, John M., Sharma, Hemant Kumar, Glennon, Colin, Judicature


Historically, the United Siales Supreme Court, like main other institutions in this country, has been populated almost exclusively by Protestants. In fact, of the 1 12justices who have been appointed to the Supreme Court (including; the recently confirmed Elena Kagan). only 12 (10.7 percent)1 have been Roman Catholic and only 8 (7.1 percent) have been Jewish, and most of these appointments have occurred relatively recently. Overall, the vast majority (82.2 percent) of Supreme Court justices have been Protestants, with Episcopalians and Presbyterians being the mosi numerous among them. This article presents a brief overview of the Court's changing religious composition and examines its possible ramifications for voting behavior.

Catholics were the initial religious minority to be represented on the Court. The first Catholic to serve was Roger B. Taney of Maryland, who was chiefjustice from I83fi to 1864. At the time, the A'Vw York Times called his appointment "an example of practica] religious liberty in the actions of the government of the United Slates" - although Perry observes that "no evidence exists il VA V Taney's religion played any role m ["Andrew] Jackson's decision [to appoint him].""

Only two other Catholics were appointed to lhe Court in (he 19"' century - Edward White, who served from 1894 to 192 !(first as associate justice, then as chief justice), and Joseph McKenna, who served from 1898 to 1925. McKenna's case may have been the first where1 religion influenced the appointment process, as the possibility of President Mc Kinley attracting Catholic voters in die election of 1900 seems to have played a role/ Similar concerns may have1 been relevant to Pierce Butler's appointment in 1923,' and his succession by Frank Murphy in 1940 led some to refer to a "Catholic seat" on die Court.' Yet when Murphy retired in 1949, President Truman appointed a Protestant, Tom Clark, to succeed him. Although Shernian Minton, who was also appointed in 1949, was married to a Catholic, he did not conven to Catholicism until after his retiremem from the Court.

In seleclingjustice Minion's successor in 195(i, President liisenhower seemed to target Catholic candidates. As Abraham notes. Elsenhower considered the "political wisdom of designating, especially in an election year, a Democrat who also happened to be a Roman Catholic."" Ultimately, the number of individuals that Eisenhower's Attorney General, Herbert Brown ell. was alile to locate to (it the profile of" a justice who had appellale court experience and was also a Roman Caiholic Democrat yielded a "sum pool indeed" - and led Lo the appointment of William Brennan.7 Reportedly, Francis Cardinal Spellman lrom the Archdiocese of New York actually lobbied President Eisenhower for such an appointment.

Justice Brennan was the Court's sole Catholic from his appointment in 1956 until 1986, when President Reagan picked Antonin Scalia for the high bench. Since then, the number of Catholics on (he Court has risen dramatically. Indeed, six of the nine justices on the current Court are Catholic - whai Perry calls a move "from a Catholic seat to a Catholic Court."" In a country that is only about one-quarter Catholic.1" the disproportionate number of Catholics on the- Court has noi gone unnoticed. For example, in a 2009 speech to the Justinian Society, Juslice Samuel Alilo noted that "UJhere has been so much talk lately about lhe number of Catholics scning on the Supreme Court" and that "[t]his is one of those questions that does not die.""

Jewish justices

Similar discussion has surrounded the appointment of Jewish justices. When Louis D. Brandéis, the first Jewish justice to serve on the United Slates Supreme Court,1- was nominated by President Wilson in 1916, the* nomination precipitated a confirmation battle ihat, according to Henry Abraham "still ranks as the most bitter and mosi intensely fought in the history of the Court."13 Abraham adds that, "there is no question ihat mucli of the anti-Brandeis campaign was anti-Semitic in origin" with major newspapers "joining the assault" in a confirmation fight that "raged against a background of some of the ugliest charges ever leveled against a public servant. …

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