A Roman Catholic Supreme Court Majority and Exclusion of Protestants

updated: May 19, 2010

There have been twelve Roman Catholics that have served on the Supreme Court. Six of those twelve currently serve on the court. President Barack  Hussein Obama’s first Supreme Court replacement for Mr Justice David Souter,  former Appellate Court Judge Sonia Sotomayor, Second Circuit, created initially a new Supreme Court super majority of six Roman Catholics. There will also be a new minority in two reverse directions: Elena Kagan replaces the sole remaining Protestant on the court, Mr. Justice John Paul Stevens. I taught by the way a former daughter-in-law of Stevens: former in that she was already divorced from a son of the “judge” as she called him. So the absence of Protestants creates one new phantom minority. The other is the likely accession of President Obama’s latest nominee to the court wherebyan expanded minority of three Jews will sit for the first time on the Supreme Court.

Supreme Court affirmation of apartheid, Jim Crow and de jure segregation thirty-one years after the 1865 13th Amendment abolished slavery.

Solicitor General Elena Kagan who is from New York is fifty years old and will be the youngest member of the court. Sotomayor was fifty-four when nominated, is also from New York and become the first Latina to serve on the court due to her Puerto Rican heritage. The first Latino justice on the high court was arguably Benjamin N. Cardozo (1932-1938) a Jew whose parents were from Portugal.

With six Roman Catholics and three Jews, there will be a noticeable absence of a Protestant, much less a Muslim. Presidents look for primarily ideological and not religious partners for the court although appointing a Jew is construed as politically advantageous with regard to achieving advise and consent by the Senate.  War criminal George W. Bush did not appoint Justices Samuel A. Alito Jr and Chief Justice John G. Roberts Jr because they were Catholic but because they were constitutional revisionists on the far right.

I think the appointment of a Muslim would be even more significant and a stirring affirmation of equality in this country. I also believe a Protestant on the court is not mandatory but desirable in that the various Protestant sects and denominations constitute a religious majority in the country.

I also am struck by the fact that Solicitor General Kagan is single as was Justice Souter so perhaps there is also a new “single” seat reserved for that category but I tend to doubt such an unwritten category has emerged. Except for President James Buchanan, an unwed chief executive from 1857-1861, relatively few unmarried folks get appointed or ascend to the most elevated positions in America: Secretary of State and former National Security Adviser Condoleezza Rice was an exception and not the rule as was former Attorney General Janet Reno.

One Roman Catholic justice was one of the great jurists in American history and probably, besides Chief Justice Earl Warren, the conscience of the twentieth-century Supreme Court. This was Justice William J. Brennan Jr. who was appointed to the Supreme Court by President Dwight David Eisenhower in 1956. One of his finest moments was his majority opinion in Texas v Johnson (1989) which ruled that burning the American flag was protected speech. Hypocrites and unprincipled Americans such as Senator Dianne Feinstein, Democrat of California, wish to criminalise desecration of a flag which they claim represents American liberties such as the right to protest.

Another Roman Catholic member of the racist Supreme Court was the worst jurist of the 19th Century who brought disgrace and obloquy to the nation and certainly to the court. This monster validated slavery, denied African Americans citizenship and considered them inferior. This was Chief Justice Roger Brooke Taney who wrote the Dred Scott v. Sandford (1857) decision. He was nominated in 1835 as Chief Justice to the Supreme Court by the genocidal, slave owning, sociopathic war criminal President Andrew Jackson. He served unfortunately as Chief Justice from 1836-1864. The racist president had appointed Mr Tawney as Treasury Secretary prior to his accession to Chief Justice.

Justice Alito: Appointed by George W. Bush in 2006. He became the fifth Roman Catholic on the nine-member Supreme Court.

The other four Roman Catholic justices are:

Chief Justice Roberts.: Appointed by George W. Bush in 2005.

Justice Clarence Thomas: Appointed by George H. W. Bush in 1991. He is an enemy of Civil Rights and an advocate of inequality under law. A disgraceful justice who is contemptuous of the African American struggle for equality and liberation from the vestiges of slavery and Jim Crow. Mr Thomas had been director of the E.E.O.C, the Equal Employment Opportunity Commission, that enforces workplace non-discrimination laws including sexual harassment. Justice Thomas during his Supreme Court Senate confirmation hearings was accused in 1991 by Dr Anita Hill, who was a law professor at the University of Oklahoma and currently is on the faculty at Brandeis University, of sexual harassment when they both worked at the E.E.O.C. I believed her testimony was credible and Mr Thomas, an enemy of African American advancement, used his race cynically to invoke the image of a “high-tech lynching.” Professor Hill and Justice Thomas are African American.

Justice Anthony McLeod Kennedy: Appointed by Ronald Reagan in 1988. An old style conservative of somewhat less fervour than his Republican brethren, he is not the malleable vessel waiting to be converted to left of center rulings by a charismatic lefty. He rules as he rules.

Justice Antonin Scalia: Appointed by Ronald Reagan in 1986. An arrogant, unprofessional justice without conscience or dedication to the principle of equal justice under the law. A jurist who decided not to recuse himself from a case involving Vice President Dick Cheney’s energy policy development, despite their personal relationship. The erratic hunter, war criminal, and advocate of a unitary presidency, Vice PresidentDick Cheney, invited the justice in 2004 to a private duck-hunting sojourn to slaughter, for sport, innocent, non-threatening animals in Louisiana.

One should recognise the nativism Roman Catholics have had to endure in a predominately Protestant nation: Irish need not apply, the racist Know-Nothing party in the 1850s and the Ku Klan Klan’s virulent strand of anti-Catholicism in the 1920s. A Supreme Court majority is indicative of social upward mobility for Roman Catholics and is a rather stunning achievement. It is also perhaps a logical outcome due to the sheer numbers of the single largest religious denomination in the United States.

Religion will play a role in juridical outcomes. It always has and always will. To suggest individuals can or should abandon their religious beliefs and ideology from one’s weltanschauung is not realistic. I recognise that justices are influenced by life experiences and a cultural ethos impacts their judicial temperament and constitutional interpretation. May the Supreme Court not veer, regardless of its composition, into an area where women’s rights, including abortion rights, the separation of church and state, civil rights, equal marriage and civil liberties are eviscerated as we struggle, as a nation, to contain the impulses toward militarism, greed and intolerance.

I suspect Elena Kagan like Judge Sotomayor supports Roe v. Wade. While the right to privacy is dying by a thousand cuts, it is unlikely that the Supreme Court will reverse prior rulings that the 14th Amendment due process clause contains constitutional protection of privacy and throw the abortion issue back to the states and back alleys. Of course Chief Justice Roberts is a right-wing intellect sans moral scruples who uses the letter of the law to deny equal justice and is no self-proclaimed judicial baseball umpire but an activist with an agenda more akin to the pre-Brown days of yore.

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