WASHINGTON (ABP) — If Samuel Alito is confirmed to the Supreme Court, it will give the court a Roman Catholic majority for the first time in its history.
That certainly would signal that Catholics — once a persecuted minority in the United States — are now readily accepted as part of mainstream life, say legal scholars, but it would not necessarily skew the court's ideology.
“I'm not bothered by it,” said Derek Davis, a professor and director for the Institute for Church-State Studies at Baylor University. “It says religious liberty is real and works in the American system, and I'm pretty proud of that,” said Davis, a lawyer and Baptist.
Alito would join Chief Justice John Roberts and Associate Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas as Catholics on the high court. Catholics make up about a fourth of the U.S. population. Just 10 of the 108 justices who have served on the Supreme Court have been Catholic, according to the website www.adherents.com.
Two current justices are Jewish — Stephen Breyer and Ruth Bader Ginsburg — a fact also surprising to many. Justices David Souter and John Paul Stevens are Protestants.
Scholars and others likely will debate why Roman Catholics are now more prominent in a judicial system that at one time did not even allow them to vote. Many people point to the election of President John Kennedy as the turning point in the Catholic acceptability.
“No one in the [country's] founding era would ever have dreamed this could happen,” Davis said of the court's Catholic make-up.
But many observers will wonder if the preponderance of Catholic judges will tilt the Supreme Court on key issues like abortion.
Although the conservative Alito has not voiced his opinion on the moral issue of abortion, his mother, 90-year-old Rose Alito, recently told a reporter, “Of course, he's against abortion.”
Still legal scholars insist the law and legal precedent — not church teachings — will steer the rulings of Alito and the other Catholic judges.
“Just because they are Catholic and there are five of them on the court doesn't mean Roe vs. Wade is going to be overturned 5-4,” Davis told Associated Baptist Press.
In fact, said Davis and others, the tradition of Catholic theology — which distinguishes between text and interpretation, and which draws on the biblical text and church tradition — is well suited for the American legal system, which values both the law and precedent.
“It means you listen to more than one source,” Davis said. “A Roman Catholic judge would more likely understand that.” By contrast, many media “pundits” are less willing to admit that interpreting the law is complicated, he added.
The Roman Catholic Church is concerned with “hierarchies and separation of powers,” ideas that also fit with “conservative theories of what justices ought to be doing,” law professor Charles Shanor of Emory University told the Atlanta Journal-Constitution.
The rise of Catholic judges in recent decades also coincides with the general conservative direction of the courts, scholars note, and that — more than moral teachings — accounts for the increase.
While all judges seeking Senate confirmation say their religion does not influence their jurisprudence, Davis said, “I'm not sure there has ever been a human being whose outlook on life was not affected by his or her faith.”
Richard Garnett, law professor at Notre Dame, a Catholic school, agreed. “The fact that one is Catholic should probably have some impact on whether one thinks abortion is immoral,” Garnett told the Journal-Constitution, “but it doesn't really have much to do with whether a judge thinks Roe vs. Wade is a good interpretation of the U.S. Constitution.”
Davis agreed. He said the acceptability of Catholics on the court should be a cause for celebration, not concern. “All these people are good Americans, and we've learned that in public life we can have our differences….”