Diane Feinstein got a lot of guff for suggesting in 2017 that appeals court nominee Amy Coney Barrett, an outspokenly conservative Catholic, felt about Church dogma the way most lawyers are trained to think about precedent. Cries of discrimination were heard, and the Constitutional prohibition on a religious test for office invoked. Unspoken, but implied, was that the Jewish Feinstein might have a religious bias of her own.
But Feinstein was clearly concerned about whether the nominee’s faith might color her decisions on issues on which the Church has well-known, inflexible doctrine — birth control, abortion, homosexuality, divorce, premarital sex, and so on. Judges are expected to be objective, not already committed to a position.
The very Catholic Barrett, who won the appellate seat, was also last week one of the finalists for the Supreme Court seat of Anthony Kennedy, a Catholic, but the three other nominees — Kethledge, Hardiman, and the selectee, Kavanaugh, were also Catholic. You could argue that the whole process reflected no change in the composition of the Court, but the composition is historically highly unusual.
For the first half of Supreme Court’s 228 years, it was comprised exclusive of white, Anglo-Saxon, protestant males. The Anglo-Saxon protestant part reflected the nature of the populous during much of that period. The white and male parts surely did not. And as waves of immigration changed the country, beginning in the second half of the 19th Century, politicians began to make token efforts to have the Supreme Court reflect the electorate, to be a representative body.
Still, the first black Justice, Thurgood Marshall didn’t join the Court until 1967, the first woman until 1981, and the first Hispanic until 2005. Religious change came sooner. Roger Taney, arguably the worst Justice in Supreme Court history, was appointed in 1836, but it took until 1894 for the second to be named. Given the influx of Irish, Italians and other European Catholics it was inevitable. Thereafter, there was a de facto Catholic seat, as there is now, in effect, a black seat. The first Jew was appointed in 1916. Thereafter, there was also a Jewish seat.
This dispensation persisted until late in the 20th century, but then a remarkable change took place. Today the Court is made up of 6 Catholics and 3 Jews, hardly representative since the country is 2 percent Jewish not 33 percent, and is 20 percent Catholic, not 66 percent. Indeed, there are now more Americans of no professed faith (24 percent) than Catholics, Jews, Hispanics, or blacks. Where’s their Supreme Court seat?
Obviously that isn’t going to happen, since unbelief is the predilection that dare not speak its name, if you are a politician. But what gives regarding the proportional Supreme Court representation of other groups? Why are the percentages so skewed, and where did all the Wasps go? One hundred percent was absurd, but zero percent?
Once you could argue that women weren’t on the Court in greater numbers because women lawyers were in short supply, but they now make up about a third of lawyers. Jews have historically been over-represented in the academy and the professions, my son the doctor and all that. But, 33 percent of Supreme Court seats looks like extreme overachievement. Jews do not make up a third of lawyers. But the most obvious mismatch between the number of people in the population and the number on the Supreme Court is the 66 percent representation of Catholics on the Court.
Catholics aren’t equally over represented in the legal profession as a whole. In fact, the reason for their dominance is obvious, and it vindicates Feinstein’s concern for the objectivity of Judge Barrett. Ever since the Republican Party began to pin its electoral hopes on a culture war against liberalism and modernity, Republican presidents have run on the promise to appoint legal warriors predisposed to decide cases on hot button issues like abortion or gay rights in a preordained way.
They put their faith in culturally conservative candidates to the appellate and Supreme Courts, believing this would please their constituents and give them an edge over Democrats who stuck to the old tradition of appointing well-qualified, objective jurists. The question was, where could Republican presidents find a pool of surefire, cultural conservative nominees?
As we have seen in the most recent cases, there is now an entrenched ideological infrastructure whose function is to cultivate a crop of potential nominees, beginning in law school. The Federalist Society and the Heritage Foundation supplied the list from which Trump chose both of his nominees.
They were, in effect, pre-approved and like-minded. They subscribe to the new dogma of originalism or textualism which seeks to ban any reading of the Constitution that wouldn’t have pleased an 18th Century Tory or perhaps 16th Century Jesuit.
But when the culture wars began under Reagan, the new orthodoxy was in its infancy. Reagan had also run on the promise to put the first woman on the Supreme Court, so that took care of his first nominee. For his second, he tried to replace the retiring, moderate Republican, Lewis Powell, with the original originalist, Robert Bork. His views were then seen as too extreme and he was rejected. Anthony Kennedy, a safer pick, took the seat. The Bork rejection, however, inflamed the culture warriors.
Thereafter, Republican presidents haven’t dared to nominate anything but a string of conservative, “originalist” Catholics — with one exception, David Souter, who the zealot wing of the party repudiated when he failed to decide cases in a far-right enough manner. He proved to be, in their minds, unreliable, or as we would say, open-minded. That was no longer acceptable.
No one has accused thirty years of Catholic originalists — Scalia, Thomas, Roberts, Alito, Gorsuch, and Trump’s four Catholic finalists for the Kennedy seat — of being anything but religiously dogmatic in judicial philosophy. Their faith in the cult of originalism is of a piece with their personal faith — unquestioned and unquestionable.
But it is hardly representative of the views of the people whose business they are supposed to be serving. We all live in the 21st Century and many of us think our jurisprudence ought to do the same.