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The Catholic and Jewish Court: Explaining the Absence of Protestants on the Nation's Highest Judicial Body
Published online by Cambridge University Press: 24 April 2015
Extract
Following the 2006 retirement of Sandra Day O'Connor and the confirmation of Samuel Alito to succeed her, Roman Catholics formed a majority on the United States Supreme Court for the first time in this institution's 210-year history. This Catholic majority was further strengthened by the appointment of Sonia Sotomayor in 2009. Perhaps even more remarkably, by the time of Elena Kagan's first case in October of 2010, not a single Protestant sat on the nation's highest judicial body.
By way of comparison, in 1960 the Court consisted of seven Protestants, one Catholic and one Jew; in 1985, eight Protestants and one Catholic sat on the Court. This phenomenon is further reflected in judicial appointments. Since 1985, only one Protestant has been appointed,4 Justice David Souter, compared to seven Catholics and three Jews. The prima facie reason for this transformation is simple: President Reagan began the Protestant erosion by appointing two Catholics; George H.W. Bush followed by appointing a Catholic; and Bill Clinton, George W. Bush, and Barack Obama chose only Jewish and Catholic nominees. The deeper reasons, which are considerably more complex, are the focus of this article.
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References
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86. In other words, future justices' religion had nothing to do with their availability or selection, and it is therefore entirely coincidental that everyone on the current Court is either Catholic or Jewish.
87. See Goldman, supra note 80, at 218.
88. I chose to review the 1960, 1985, and 2010 Courts since these intervals offer three discrete glimpses into Supreme Court history. The 1960 Court was religiously typical of the twentieth century, containing seven Protestants, one Catholic, and one Jew; 1985 was shortly before Antonin Scalia, the Court's current oldest member, was nominated; and the current Court marks the first government branch in American history that includes no Protestants.
89. Why this is so lies well beyond the current article's scope.
90. Information obtained from The Supreme Court Database, http://scdb.wustl.edvi/ (last visited Dec. 7, 2011) (this database gives the background information and voting records of all the justices who served from 1953 to 2008); the justices' religious information was available at Religious Affiliation, supra note 3.
91. This data was gathered from 3 primary sources: All information from 1801-2000 came from Professor Gerard S. Gryski (Auburn University) who emailed me his extensive data set on circuit court judges (many pieces which are publicly available at http://www.icpsr.umich.edu/icpsrweb/ICPSR/) (e-mail received on Apr. 22, 2011) (on file with author); (e-mail received on Apr. 18, 2011 (on file with author)); and finally, all remaining circuit court information was obtained from the website NNDB (last visited Dec. 7, 2011). All three strands of data were then compiled and combined into a larger database.
92. This includes adherents to the Church of Latter-Day Saints, who are generally considered Protestant, although not without some controversy. See, e.g., Religious Tolerance.org, Are they Christians?, http://www.religioustolerance.org/ldswho.htm, (last visited Dec. 7, 2011).
93. During this period the rate of judicial appointments increased significantly, and it therefore becomes more helpful to evaluate decade by decade.
94. This analyses ends in 2009 rather than 2010 due to the lack of available reliable data for the latter year, much of which is still being collected.
95. Unsurprisingly, this varied considerably by geographical location. Whereas the diverse 3d Circuit (representing New Jersey, Delaware, and Pennsylvania) contained three Protestants, two Catholics, and two Jews, the 5th (representing Louisiana, Mississippi, and Texas) and 10th (representing Kansas, Colorado, New Mexico, Oklahoma, Utah, and Wyoming) circuits were composed entirely of Protestants.
96. This excludes the eleven judges on the Federal Circuit, whose information is not publicly available.
97. Again, this varied considerably by geography; while Protestants held a majority in most circuits, they were outnumbered by Catholics in the 3d, 7th (representing Illinois, Indiana, and Wisconsin) and 10th circuits, and by both Catholics and Jews in the 1st circuit (representing Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island).
98. This again excludes the eleven Federal Circuit judges, whose information is not publicly available.
99. The 3d, 7th, and 10th circuits were again dominated by Catholics, with the 1st circuit containing more Catholic and Jewish than Protestant judges.
100. If this hypothesis were valid, the Supreme Court should consist of a bare majority of Protestants.
101. Notably, four justices have come from the D.C. Circuit alone, and perhaps this can shed some additional light on Protestants' absence from the high court. In 1960, the D.C. Court consisted of five Protestants, two Catholics and one Jew; in 1985, four Protestants, three Catholics, three Jews and one unknown; and in 2009, four Protestants, two Catholics and three Jews. While the overrepresentation of Jews is interesting to note here, Protestants still form a Court plurality.
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113. Id. at 78.
114. Id. at 144.
115. See Yalof, supra note 63, at 146 (“A thorough search of Scalia's judicial record uncovered not a single opinion in which either the result or the ground of decision seemed problematic from a conservative point of view.”).
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124. See Yalof, supra note 63, at 146.
125. A fact Senator Joseph Biden, head of the Senate Judiciary Committee, admittedly came to regret. See Biskupic, supra note 13, at 121.
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130. Id. at 164; see generally, Bronner, Ethan, Battle for Justice: How the Bork Nomination Shook America (Union Square Press 2007)Google Scholar.
131. See Yalof, supra note 63, at 164 (“The [initial] feelings of anger and vindictiveness over Bork's defeat had turned into feelings of outright embarrassment.”).
132. Id. at 165.
133. Id.
134. See Perry, supra note 24; Goldman, supra note 80, at 201 (“There is no evidence that Kennedy's Catholicism played a role in his selection.”).
135. See Perry, supra note 24, at 89; Goldman, supra note 80, at 201 (“the religious affiliation of potential Supreme Court nominees was simply irrelevant as long as their real politics was in line with the President's.”).
136. See Yalof, supra note 63, at 164 (Undoubtedly letting out much of the bad air during the Bork and Ginsburg debacles).
137. Id.
138. See Encyclopedia of World Biography, Clarence Thomas Biography, http://www.notablebiographies.com/St-Tr/Thomas-Clarence.html (last visited Dec. 7, 2011).
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140. See Steinfels, supra note 116, at 171.
141. Id.
142. See Adherents.com, The Religious Affiliation of Supreme Court Justice Clarence Thomas, http://www.adherents.com/people/pt/Clarence_Thomas.html (last visited Dec. 7, 2011).
143. See Steinfels, supra note 117, at 171.
144. Thomas grew up in the Deep South.
145. See Yalof, supra note 63, at 190.
146. Id. at 193.
147. Id.
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156. Id.
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185. See Posting of Maurice Timothy Reidy to Beliefnet, http://www.freerepublic.com/focus/f-religion/1519707/posts (Nov. 10, 2005, 03:13 EST) (discusses this Church's more progressive liturgical practices).
186. See Adherents.com, The Religious Affiliation of Supreme Court Justice Samuel Alito, http://www.adherents.com/people/pa/Samuel_Alito.html (last visited Dec. 7, 2011).
187. See Adherents.com, The Religious Affiliation of Harriet Miers, http://www.adherents.com/people/pm/Harriet_Miers.html (last visited Dec. 7, 2011).
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201. Alito's responses to questions about Roe were ambiguous. See Goldstein, Amy & Babington, Charles, Alito Leaves Door Open to Reversing Roe, Wash. Post, 01 12, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/01/11/AR2006011101120.htmlGoogle Scholar.
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203. See Kellman, Laurie, Alito Heads Toward Confirmation Despite Challenges, USA Today, 01 13, 2006, http://www.usatoday.com/news/washington/2006-01-13-alito_x.htmGoogle Scholar.
204. See Goldman, supra note 80, at 202 (“Although both Roberts and Alito are Roman Catholics, there is no indication in the public record that their Catholicism played a role in their selection”).
205. See Zapor, Patricia, Obama Nominates New York Latino to Supreme Court, Cath. News. Serv., 05 26, 2009, http://www.catholicnews.com/data/stories/cns/0902392.htmGoogle Scholar.
206. See Ertelt, Steven, Catholic Pro-Life Group Notes Hypocrisy on Faith, Sotomayor Supreme Court Nod, Lifenews.Com, 06 27, 2009, http.//www.lifenews.com/2009/05/27/nat-5097/Google Scholar.
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208. See, e.g., Rosen, Jeffrey, The Case Against Sotomayor: Indictments of Obama's Front-Runner to Replace Souter, New Republic, 05 4, 2009, http://www.tnr.com/article/politics/the-case-against-sotomayorGoogle Scholar (“The most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench,’ as one former Second Circuit clerk for another judge put it… Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees.”).
209. Some contend the Court's first Hispanic was Benjamin Cardozo, a Sephardic Jew of Portuguese origins. Most reject this, however, arguing the term was neither then in vogue nor should White Europeans be included in this ethnic category. See, e.g., Passel, Jeffrey & Taylor, Paul, Is Sotomayor the Court's First Hispanic?, Pew Research Ctr. Pubs., 05 28, 2009, http://pewresearch.org/pubs/1238/sotomayor-supreme-court-first-hispanicGoogle Scholar.
210. Sotomayor's ‘Wise Latina’ Comment a Staple of her Speeches, CNN.com 06 5, 2009, http://articles.cnn.com/2009-06-05/politics/sotomayor.speeches_1_sotomayor-s-confirmation-sotomayor-supporters-judge-sonia-sotomayor?_s=PM:POLITICSGoogle Scholar.
211. Id.
212. Posting of N.Y. Times Staff to The N.Y. Times caucus Blog, http://thecaucus.blogs.nytimes.com/2009/05/29/white-house-judge-sotomayor-acknowledges-poor-word-choice/ (May 29, 2009, 04:34 EST).
213. ‘The Empathy’ Nominee: Is Sonia Sotomayor Judicially Superior to ‘a White Male’?, Wall St. J., 05 27, 2009, http://online.wsj.com/article/SB124338457658756731.htmlGoogle Scholar (“Republicans can use the process (Sotomayor's confirmation hearings) as a teaching moment… to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record.”).
214. See Transcript of the Sotomayor Confirmation Hearings, Before the S. Comm. on the Judiciary, 111th Cong. (07 13, 2009)Google Scholar, available at http://epic.org/privacy/sotomayor/sotomoyor_transcript. See also Ricci v. DeStefano, 554 F. Supp. 2d 142 (D. Conn. 2006).
215. Id.
216. Id. at 23.
217. See Senate Confirms Sonia Sotomayor to U.S. Supreme Court, Fox News, 08 6, 2009, http://www.foxnews.com/politics/2009/08/06/senate-confirms-sonia-sotomayor-supreme-court/Google Scholar.
218. See Tracy, Marc, Kagan Had Synagogue's First Bat Mitzvah: High Court Nominee was at Modern Orthodox Shul, Tablet, 05 13, 2010, http://www.tabletmag.com/scroll/33604/kagan-had-synagogue%E2%80%99s-first-bat-mitzvah/Google Scholar.
219. See Foderado, Lisa W., Growing Up, Kagan Tested Boundaries of Her Faith, N.Y. Times, 05 12, 2010, http://www.nytimes.com/2010/05/13/nyregion/13synagogue.htmlGoogle Scholar.
220. Id.
221. Id.
222. See generally Baker, Peter & Zeleny, Jeff, Obama Picks Kagan as Justice Nominee, N.Y. Times, 05 9, 2010, http://ww.nytimes.com/2010/05/10/us/politics/10court.htmlGoogle Scholar.
223. See Rosen, Jeffrey, At Center Court; Can Kagan Be a Consensus Builder?, Time, 05 13, 2010, http://www.time.com/time/nation/article/0,8599,1988976,00.htmlGoogle Scholar (“If Republicans were already trying to paint Kagan as too liberal, some Democrats wondered whether she might be too centrist”).
224. See Bazelon, Emily, Untired, Untested, and Ready: Elena Kagan's Youth and Judicial Inexperience Recommend her for the Supreme Court, Slate, 05 10, 2010, http://www.slate.com/id/2253302/Google Scholar.
225. See Lord, Jeffrey, The Socialist Judge: Elena Kagan and the Teachable Moment, Am. Spectator, 05 12, 2010, http://spectator.org/archives/2010/05/12/the-socialist-judge-elena-kagaGoogle Scholar.
226. See Posting of Adam Shah to Media Matters for America Blog, http://mediamatters.org/blog/201007260023 (July 26, 2010, 11:07 EST).
227. See Walsh, Joan, It's Not Even Coded Bigotry Anymore: The GOP Hits Elena Kagan for Admiring Thurgood Marshall and Hailing from “Manhattan's Upper West Side,”Salon, 06 28, 2010, http://mobile.salon.com/opinion/walsh/politics/2010/06/28/not_even_coded_bigotry_anymore/index.htmlGoogle Scholar.
228. Id.
229. Besser, James, More on Kagan, the Upper West Side and Senatorial Euphemisms, Jewish Week, 07 7, 2010, http://www.thejewishweek.com/blogs/political_insider/more_kagan_upper_west_side_and_senatorial_euphemismsGoogle Scholar.
230. See Stolberg, Sheryl Gay, Praise for an Israeli Judge Drives Criticism of Kagan, N.Y. Times, 06 24, 2010, http://www.nytimes.coni/2010/06/25/us/politics/25kagan.htrnlGoogle Scholar.
231. See Mozgovaya, Natasha, U.S. Supreme Court Nominee Elena Kagan: Israel Means a Lot to Me, Haaretz, 06 29, 2010, http://www.haaretz.com/jewish-world/u-s-supreme-court-nominee-elena-kagan-israel-means-a-lot-to-me-1.299049Google Scholar.
232. See Mears, Bill, Witnesses Offer Support, Opposition to Kagan as Hearing Concludes, Cnn, 07 1, 2010, http://articles.cnn.com/2010-07-01/politics/pol.senate.supreme.court_1_elena-kagan-military-recruiters-dean-kagan?_s=PM:POLITICSGoogle Scholar.
233. See Associated Press, Kagan Confirmed as Supreme Court Justice: Senate Votes 63-37 to Approve Fourth Woman Ever to Serve on the Court, MSNBC.com, 08 5, 2010, http://www.msnbc.msn.com/id/38570191/ns/politics-supreme_court/t/kagan-confirmed-supreme-court-justice/Google Scholar.
234. The reasons for this have been debated ad nauseam. See Burstein, Paul, Jewish Educational and Economic Success in the United States: A Search for Explanations, 50 Sociological Perspectives 209 (2007) (for a sociological exploration of this matter)CrossRefGoogle Scholar.
235. See Krieger, Hilary Lelia, Jewish Woman for US Supreme Court, Jerusalem Post, 05 11, 2010, http://www.jpost.com/International/Article.aspx?id=175213Google Scholar. (“Mikva, whom Kagan praised in her remarks upon being nominated Monday, also told The Jerusalem Post how her sense of Jewishness connected to her work: ‘Her yiddishkeit, as I call it, informs her views on social justice and compassion and understanding what law is about,’ he said. ‘We the Jews invented the law, and it's only fitting that someone of Jewish heritage would fall in love with the law and make it a career.’”).
236. Judge Diane Wood is one example.
237. Gerhardt, Michael J., Why the Catholic Majority on the Supreme Court May Be Unconstitutional, 41 U. St. Thomas L.J. 173, 184 (2006)Google Scholar.
238. Bork, interestingly enough, has converted to Catholicism. See Drake, Tim, Judge Bork Converts to the Catholic Faith, Nat'l Cath. Reg., 07 20-26, 2003, http://www.catholiceducation.org/articles/catholic_stories/cs0048.htmlGoogle Scholar.
239. See Kerr, supra note 102.
240. As discussed, in Bork's case, this may have actively worked against him.
241. See, e.g., Pearce, Russell G., Reflections on the American Jewish Lawyer, 17 J.L. & Religion 179 (2002)CrossRefGoogle Scholar.
242. The majority of African Americans are Baptist. See BlackDemographics.com, African American Religion, http://www.blackdemographics.com/religion.html (last visited Dec. 7, 2011).
243. See Cqpress.com, Politics and the Court, http://www.cqpress.com/incontext/supremecourt/politics_and_the_court.htm (last visited Dec. 7, 2011) (“Richard Nixon was pursuing his ‘southern strategy’ in 1971 when he chose Lewis F. Powell Jr., a Richmond, Virginia, lawyer and a nominal Democrat.”).
244. See Bernstein, David, Why Jews and Catholics on the Supreme Court?, The Volokh Conspiracy, 05 14, 2011, http://volokh.com/2010/05/14/why-jews-and-catholics-on-the-supreme-court/Google Scholar.
245. See The Pew Forum on Religion and Public Life, U.S. Religious Landscape Survey, http://religions.pewforum.org/maps (last visited Dec. 7, 2011).
246. Id.
247. See Thomas, Clarence, My Grandfather's Son: A Memoir 84 (Harper 2007)Google Scholar.
248. See Oyez.org, supra note 164.
249. Bernstein, supra note 244.
250. Why this is has naturally engendered a great deal of debate. For one summary of this matter, see Glen, Patrick J., Harvard and Yale Ascendant: The Legal Education of Justices from Holmes to Kagan, 58 Ucla L. Rev. Discourse 129 (2010)Google Scholar.
251. See Karabel, Jerome, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton 536 (Houghton Mifflin 2006)Google Scholar.
252 Bernstein, supra note 244.
253 See Shemtob, Zachary, Supreme Convolution: Gregg v. Georgia and the Nature of Judicial Decision Making (unpublished Ph.D. dissertation, City University) (on file with author)Google Scholar.
254. See U.S. Census Bureau, Historical Census Statistics on Population Totals By Race, 1790 to 1990, http://www.census.gov/population/www/documentation/twps0056/twps0056 (last visited Dec. 7, 2011).
255. See U.S. Census Bureau, 2010 Census Shows Nation's Hispanic Population Grew Four Times Faster Than Total U.S. Population, http://2010.census.gov/news/releases/operations/cb11-cn146.html (last visited Dec. 7, 2011).
256. See, e.g. Becker, Bernie, Justices List Their Assets; Wide Range of Wealth, N.Y. Times, 06 7, 2008, http://www.nytimes.com/2008/06/07/washington/07scotus.htmlGoogle Scholar. Even after Justice Thomas received more than $1 million in advances for his memoir, he still ranked among the least wealthy members of the Court.
257. This is an absurd scenario, of course, but that is the advantage of hypotheticals.
258. Goldman, supra note 80, at 218.
259. This seems unlikely anytime soon, but one never knows.