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President Trump’s decision to nominate Amy Coney Barrett for the United States Supreme Court led some Republicans to complain about anti-Catholic bias. Democrats, they charged, were suggesting that Barrett’s Catholic faith could prevent her from making independent judicial decisions. Their evidence? Senator Dianne Feinstein, during Barrett’s earlier confirmation hearing, saying: “The dogma lives loudly within you.”
As most of us know, Article VI of the Constitution bars religious tests for public office. But to the extent that there is a test for the Supreme Court, it is not a ban on Catholics. One rarely discussed fact about the Court is that it currently consists entirely of justices who were raised as either Catholics or Jews.
This is decidedly odd in a country that is majority Protestant.
Since the confirmation of David Souter, an Episcopalian, in 1990, no new justice raised as a Protestant has been chosen for one of the most exclusive professional clubs in the nation. Souter stepped down from the Court in 2009, and no Protestant has cast a vote there since John Paul Stevens retired in 2010. President Obama successfully nominated the Catholic Sonia Sotomayor and the Jewish Elena Kagan. Obama’s third nominee, Merrick Garland, who failed to win confirmation in 2016 due to stalling tactics by the Republican majority, was also Jewish.
Clearly, it isn’t because either Catholics or Jews can be pigeonholed politically. Even Catholics complain that some justices of their own faith, such as William J. Brennan who voted for Roe v. Wade, have been too liberal. But President Trump’s two nominees do follow a new pattern in which Catholics, specifically, have been tasked with shoring up the Court’s conservative wing. Neil Gorsuch and Brett Kavanaugh both went to the same Jesuit preparatory school in Washington, D.C. Gorsuch subsequently married an Anglican and has reportedly attended Anglican services, so he’s a partial exception to the “no Protestants” pattern. But it’s complicated: Gorsuch’s children all attend Catholic mass, as well as Catholic schools.
Protestants rarely feel the sting of exclusion. Perhaps because anti-Semitism and anti-Catholicism have been such prominent themes in American history, because religion sits uncomfortably in a political culture founded on the separation of church and state, or because many hold the conviction that an individual’s religious beliefs are a private matter, there has been little debate over the skewed religious composition of today’s Court.
But how do we explain an emerging pattern in which neither Democrats or Republicans have a Protestant at the top of their list? Some religious scholars have argued that the answer lies in the personal career trajectories of potential justices, with Catholics and Jews, formerly excluded from prominent public roles, viewing the law as a vehicle for social mobility. Others suggest that evangelical Protestants do not approach the law with sufficient intellectual rigor to be siphoned up through a system that traditionally relies on a strong intellectual record.
While Catholics have cultivated some excellent law schools, all the sitting justices graduated from either Harvard or Yale; and Amy Coney Barrett be the first associate justice educated at Notre Dame. Barrett, of course, has been chosen for her conservatism, a stance that derives not just from originalist legal thinking but also from a personal faith that is consistent with traditional Catholic teachings. Barrett illustrates the litmus test argument — that Republicans, keen to overturn Roe v. Wade, think that conservative Catholic nominees are more likely to take a hard line against abortion than their Protestant counterparts. That seems plausible, but does not explain why Democratic presidents also nominate non-Protestants.
That Protestants are simply not worthy candidates for either party seems unconvincing. Surely there are plenty of smart Protestants who are interested in the law, who see it as offering the chance of social advancement, who are committed to a pro-life stance, and who have attended prestigious law schools.
We would like to suggest an alternative hypothesis. In a country which has historically had an overwhelming Protestant majority, religious minorities, like other subordinate groups, have historically looked to the Supreme Court — the least majoritarian branch of government — to protect their rights. The Protestant majority, even though it is split on issues like reproductive and other civil rights, is more confident that the president and Congress, both elected, will represent and defend its interests.
As Şener Aktürk suggests in his study on the comparative politics of exclusion, democracy, almost by definition, tends to produce legislative majorities and chief executives that are of the same religious sectarian identity as that of the majority. Catholics and Jews, however, are radically underrepresented in both the executive and the legislative branches. Forty-four of 45 U.S. presidents have been Protestants. President Kennedy was the only Catholic president, and Joe Biden, if elected, would be only the second non-Protestant president in American history. Both the House of Representatives and the Senate have also typically had Protestant majorities. This is not a peculiar feature of the United States: the United Kingdom, the oldest modern democracy, has never had a non-Protestant Prime Minister.
With both the legislature and the executive branch reflecting the religious sectarian majority in U.S. society, it is most reasonable for the Supreme Court, which serves to protect minorities who have historically faced political, economic, or societal discrimination, to attract a disproportionate amount of talent drawn from religious minority groups.
There is another political logic, however, one that may change this pattern. If the overrepresentation of minorities in the highest echelons of the judiciary is seen as restricting the religious freedom of the majority, this may trigger a counter-mobilization by aggrieved groups within the Protestant majority to seek representation in the judiciary. In the case of the U.S., with evangelical Protestants increasingly agitated over what they see as the infringement of their religious freedom by laws protecting gay and reproductive rights, we might expect the evangelical wing of the Republican Party to agitate for more Protestants on the Supreme Court.
Unless they continue to delegate that job to the Court’s Catholic majority.
Şener Aktürk is an associate professor at Koç University, Istanbul, and Peter Rutland is a professor at Wesleyan University in Middletown, Connecticut.