Supreme Court nominee Brett Kavanaugh walks past the media after a photo opportunity with Sen. Chuck Grassley, R-Iowa, on Capitol Hill in Washington on July 10, 2018. Kavanaugh is on Capitol Hill to meet with Republican leaders as the battle begins over his nomination to the Supreme Court. (AP Photo/Susan Walsh)
Catholic-heavy Supreme Court moves right as the church moves left
July 11, 2018
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(RNS) — With his nomination of Judge Brett Kavanaugh to replace the retiring Justice Anthony Kennedy, President Trump has succeeded in doing for the judicial branch what he has often failed or neglected to do in his administration: acting efficiently and with minimal controversy to promote conservative principles.
In doing so, the president has also driven the ideology of the Catholics on the court further to the right. Kavanaugh, who early in his career was a law clerk for Kennedy, is a more doctrinaire conservative and is more heavily and outwardly invested in his Catholic identity than his mentor.
Perhaps unintentionally, Trump’s efficiency has exacerbated the already heightened angst (or excitement, depending on who's being asked) about the institution’s ever more conservative Catholic majority.
For those who aren’t keeping scorecards: Among those nominated by a Republican president, Justices Kennedy, Clarence Thomas, John Roberts and Samuel Alito are all Catholic. Fellow conservative Neil Gorsuch was raised Catholic but has more recently attended an Episcopal church. Liberal Justice Sonia Sotomayor, appointed by President Obama, is also Catholic.
Kavanaugh’s rise to the high court is welcome news for the religious right of whatever denomination, and a relief to social conservatives who have been put off by Trump’s obnoxious speech and behavior but nevertheless supported him in hopes that he would shape the federal judiciary to their liking.
Once wary of Catholics, conservative Protestants have worked with Catholics on shared priorities for decades. They now see the learned jurists of the Catholic right as indispensable allies. With their elite credentials and intellectual grounding, the Republican justices represent a large, sometimes controversial, corps of legal minds the evangelical tradition has not produced on its own.
One of the judges on the Catholics’ deep bench is Amy Coney Barrett, who was reportedly in the running for the seat now offered to Kavanaugh. A former Notre Dame law professor, she became a heroine to religious conservatives when Sen. Dianne Feinstein, at Barrett’s confirmation hearing for a circuit court judgeship last fall, questioned her impartiality as a judge, saying, “The dogma lives loudly within you.”
This gaffe was a rallying cry for conservatives enthralled with the notion that devout, orthodox religious people are systematically excluded from positions of elite influence, and particularly positions of legal authority.
Many social conservatives hoped Trump would nominate Barrett to the high court, even though she has only been a judge for seven months, if only to “trigger the libs”: A Catholic woman joining the Catholic men in overturning Roe v. Wade against the other female justices’ dissents would have been a sweet victory for the right.
U.S. Chief Justice John Roberts, seated center, leads Justice Ruth Bader Ginsburg, front row, left to right; Justice Anthony Kennedy; Justice Clarence Thomas; Justice Stephen Breyer; and back row, left to right, Justice Elena Kagan, Justice Samuel Alito, Justice Sonia Sotomayor and Associate Justice Neil Gorsuch in taking a new court photo including Gorsuch, their most recent addition, at the Supreme Court building in Washington on June 1, 2017. Photo by Jonathan Ernst/Reuters
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This triumph of conservative Catholicism on the court has a dark lining, however, in the increasingly deep political split within American Catholicism. Though always a matter of debate, Catholic politicians' and even judges' conformity to party platforms is causing especially tense discussion right now. This spring, at a conference on Catholicism and politics in an age of division held at Loyola University-Chicago, San Diego Bishop Robert McElroy challenged Catholic political thinkers to take up social causes beyond the church’s opposition to abortion rights.
At Georgetown University last month, Catholic leaders from across the spectrum met to discuss polarization in the church. Archbishop Jose Gomez of Los Angeles, while known as a fierce defender of immigrants’ rights, called abortion “the most important social justice issue facing the church,” according to America magazine’s account of the conference.
Some of the division is being driven by Pope Francis and his appointed cardinals and bishops, who have shifted the emphasis of Catholic politics to social justice concerns, speaking out on the environment and gun violence, even redefining immigration policies recently as a “life” issue. In June, McElroy told a group of Catholic priests that Francis rejects “a notion of law which can be blind to the uniqueness of concrete human situations, human suffering and human limitation.”
Amid this leftward drift, the Catholic Supreme Court has shown evident disregard for workers, the environment and voting rights, taking positions that directly oppose Catholic social teaching.
Of course, the justices decide on matters of law, not theology. Those of us attuned to the role of religion in public life may ultimately concede that in matters of law, faith is not as consequential as we are inclined to think.
But it will be important to note how the Jesuit-educated Kavanaugh’s background influences his perspectives on the rights of labor and migrants, the needs of the poor and disadvantaged, and the problems inherent in America’s excessive confidence in individualism and capitalism.
(Jacob Lupfer, a frequent commentator on religion and politics, is a writer and consultant in Baltimore. His website is www.jacoblupfer.com. Follow him on Twitter at @jlupf. The views expressed in this commentary do not necessarily represent those of Religion News Service.)