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Should Catholic Justices Recuse Themselves on Certain Cases?

If Sonia Sotomayor, President Obama's nominee for the Supreme Court, joins the court she will turn its five Catholic members into a two-thirds majority. She will in fact be replacing one of the two Protestants who remained on the court.

This dramatic change in the composition of the Supreme Court can be traced to the country's protracted struggle to achieve equality. It reflects our better selves, the ones who want to make up for decades of prejudice and discrimination. But because of the Catholic Church's active opposition to abortion, same-sex marriage, and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants.

There was little concern about religious affiliation when all the justices of the Supreme Court were white, male and Protestant. Then diversity involved region, usually whether one came from a free or slaveholding state. When WASPs dominated the courts, discrimination against Catholics and Jews was rampant, not to mention the prejudices affecting the lives of blacks and women.

Chief Justice Roger B. Taney, who came from an old Maryland family, became the first Catholic on the Supreme Court in 1836, serving as chief justice for 28 years. Two more Catholics sat on the court in the 19th century, followed by four more early in the 20th century.

The present concentration of five Catholic justices began with President Reagan's appointment of Antonin Scalia in 1986. It culminated twenty years later when President George W. Bush elevated Samuel Alito to the high court.

Louis Brandeis, named by President Wilson in 1916, was the first Jew to sit on the court. Current Justices Ruth Bader Ginsberg and Stephen Breyer became the sixth and seventh Jewish justices to serve on the court in its 220 years.

It was only when other disempowered groups found their political voice that they could challenge the uniformly white and Protestant composition of the Supreme Court. The civil rights movement of the 1960s and 1970s prompted deliberate diversification of judicial appointments. President Lyndon Johnson nominated Thurgood Marshall, the first African-American justice and President Ronald Reagan, the first woman justice, Sandra Day O'Connor, 14 years later.

The United States can take justifiable pride in the fact that though 62 percent of its population comes from a Protestant background, it may soon have only one Protestant left on the Supreme Court bench. Since 28 percent of Americans come from a Catholic background and 1.5 percent are Jewish, appointments to the Court no longer attempt to mirror American society from a religious perspective.

In truth, religion is not a factor in the majority of decisions that the court will make each year. It might not be relevant at all had not the Catholic Church, with some other denominations, taken public stands on issues of great political significance today.

Abortion comes immediately to mind, but it's not the only constitutional matter where religion and politics clash. Recently two eminent lawyers, David Boies and Theodore Olson, filed a law suit in Federal District Court in San Francisco as co-counsel for two gay couples challenging California's Proposition 8. The California Supreme Court's upholding of the proposition's ban on same-sex marriages triggered the action, which seeks relief for gay couples under the Constitution's protection of equal rights.

The case could go all the way to the Supreme Court, raising questions about the vigorous opposition to same-sex marriages by the church to which five, and possibly six, justices will belong. The death penalty, which the Catholic Church also opposes, is another.

Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?

This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.