Commentary: A Court Without Wasps

A 50-years-ago item in the Columbus newspaper noted that in May 1960 the Southern Baptist Convention adopted a resolution urging its members to oppose the nomination of a Catholic for U.S. President. At the time, John F. Kennedy was expected to be the Democratic nominee.

Kennedy later made his peace with leaders of the Baptist convention in a well-publicized speech in Dallas in which he assured them that his religion would not influence his decisions as president.

Kennedy, of course, went on to win the nomination and the presidency, but his popular vote margin over Republican Richard Nixon was less than one percent. There was obviously an anti-Catholic vote in the South, as there was a pro-Catholic vote in some northern states. Religion does make a difference.

In 1854, a national political party was formed for the express purpose of opposing Catholic immigration into the U.S. It was called the American Party (or Know-Nothings) and its candidate, former President Millard Fillmore, received 23 percent of the popular votes in the 1856 election.

It was not until 1836 that the first Catholic, Roger Taney, was named to the Supreme Court. Taney became chief justice and served until 1864. He had the dubious distinction of delivering the infamous Dred Scott decision in 1857, which declared that Congress had no right to forbid slavery in any U.S. territory, laying the certain path to civil war.

As recently as 1986, William Brennan was the only Catholic on the U.S. Supreme Court. The first Jewish justice was appointed in 1916 and the first woman in 1981.

Obviously, there wasn’t much diversity in the nine members of the most powerful body in the nation in its first 197 years. There still isn’t. If Elena Kagan is approved as the new justice, the court will have six Catholics, three Jewish members – and no Protestants. The last Protestant is the retiring John Paul Stevens, appointed by President Gerald Ford in 1975.

Oddly, no one is complaining. But if diversity has any real credence in the United States, can we really justify a Supreme Court of such thin diversity that not one of its members is from the religious background shared by 70 percent of the population?

Do a justice’s religious beliefs have no bearing on his or her outlook on the law and on the moral judgments that the court levies?

Catholics have been majority on the court since 2007, when President George W. Bush appointed John Roberts as chief justice and Sam Alito as an associate justice, replacing Protestants Sandra O’Connor and William Rehnquist. They joined Antonin Scalia and Anthony Kennedy, both appointed by President Ronald Reagan, and Clarence Thomas, appointed by George H.W. Bush.

With such a majority, you have to conclude that while the justices are Catholics, they may not be very strict Catholics. The crucial question related to Supreme Court decisions for more than 30 years has been whether abortion should be legal. That is an issue on which the Catholic Church has taken a firm position, even denying the sacraments to Catholic politicians who openly supported choice or legal abortion.

In a nation so deeply and angrily divided over many issues (including abortion), it would seem appropriate that there should be more diversity in background on the highest court, which set the rule on abortion in 1973.

But the Supreme Court of 2010 is not just lacking in diversity on religion. With Kagan, all nine members will be graduates of Harvard or Yale law schools. Four members were raised in a borough of New York City, the most untypical urban area in the U.S.

Of the 32 justices appointed since 1952, 15 graduated from Harvard or Yale, and six others are graduates of Columbia, Northwestern or Stanford. None are products of a state university education.

Is this the face of diversity? Does the court “look like America?” Is it any more diverse than it was a hundred years ago when the first Catholic since Taney was appointed?

Does it matter? Are a member’s religious background, heritage and education presumed to have no influence on how he or she will interpret the law? An abortion case is working its way through the court system, and eventually will reach the Supreme Court. Then we’ll find out.