WASHINGTON — When Amy Coney Barrett emerged as President Trump’s likely nominee to the Supreme Court, a video clip of a tense exchange between her and Senator Dianne Feinstein of California circulated widely in conservative media.
“You are controversial. Let’s start with that,” said Feinstein, a Democrat, during Barrett’s 2017 confirmation hearing for the seat she now holds on the US Court of Appeals in Chicago. Then, Feinstein focused in on Barrett’s faith, questioning whether it could influence her rulings.
Barrett, 48, a former Notre Dame law professor, called herself a devout Roman Catholic but contended she could separate her religious beliefs from her legal decisions. Yet, Feinstein said she and other Democrats felt “uncomfortable.”
“I think whatever a religion is, it has its own dogma,” said Feinstein, who is Jewish. “In your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”
That sort of pointed questioning, which some fear will resume as Barrett is vetted by the Senate judiciary committee, has been decried by congressional Republicans as the kind of antireligious bias and anti-Catholic bigotry that they believe is tearing at the fabric of American society. But, if it is tearing at the fabric, it certainly hasn’t held back the rise of Catholic judges. If Barrett is confirmed after Senate hearings set to begin Monday, Catholics would hold a 6-3 majority on the nation’s high court — just the second time that’s ever happened — and it would be an extremely conservative majority.
Barrett, a mother of seven children, including two adopted from Haiti, is undoubtedly serious in her faith, and served on the pastoral council of her local Catholic church in South Bend, Ind. A former clerk for the late conservative Justice Antonin Scalia, she has garnered the adoration of conservative Christians and antiabortion activists for not just her religious convictions but also her skepticism, in speeches and rulings, of broad interpretations of a woman’s right to abortion.
She is widely viewed as a likely vote to overturn the landmark 1973 Roe v. Wade ruling that legalized abortion. And her connections to the Federalist Society, a conservative and libertarian legal group once on the fringe but now a powerhouse, and to People of Praise, a tight-knit faith community based on charismatic Catholicism that former members say teaches that wives should submit to the will of their husbands, have drawn concern among Democrats and women’s groups opposing her nomination.
The rise of Catholics on the Supreme Court, which long had been dominated by white men of mainline Protestant faith, is striking for a denomination that only includes about a fifth of US adults and was once so stigmatized that many Americans worried that Catholic politicians would be more loyal to the pope than to the nation. Still, historians said it’s difficult to unravel just how much religion rather than ideology has factored into a solid Supreme Court majority and whether, or how, the faith of those justices affects their rulings.
“I think the question is — and I am not sure of the answer — are they conservative judges who happen to be Catholic?” asked Margaret McGuinness, a religion professor at La Salle University in Philadelphia.
The five Catholics on the court are Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh. Justice Neil Gorsuch was raised Catholic but now attends a Protestant church. The other justices, Stephen Breyer and Elena Kagan, are Jewish, as was Ruth Bader Ginsburg, whose seat Barrett would take.
Most of the 13 Catholic justices who have served on the Supreme Court have been nominated by Republican presidents amid a decline of anti-Catholic discrimination, a rise in the number of Catholic lawyers, and an unlikely alliance between conservative Catholics and evangelical Christians that formed in backlash to the progress of the civil rights movements of the 1960s. They now sit on a court that has become a heavy cudgel in the culture wars, increasingly using the Constitution’s free exercise of religion clause to rule for churches over other interests, and issuing decisions that critics said often work to the detriment of women, people of color, and members of the LGBTQ community.
As with any religion, believers in Catholicism span the political spectrum. Catholic registered voters are evenly split between Democrats and Republicans, according to polls by the Pew Research Center. And Catholics, liberal and conservative, hold varying views on matters like abortion and immigration that track less with doctrine than with their core political beliefs, according to Pew.
Sotomayor, nominated by Barack Obama, has emerged as the liberal conscience on the Supreme Court, an ardent defender of immigrants, people of color, and criminal defendants. She is the first and only justice of Latin American descent, and Sotomayor’s ideology underscores a split among Catholics more broadly: 68 percent of Latino Catholic registered voters are or lean Democratic, Pew polling shows, while 57 percent of white Catholic registered voters are or lean Republican.
Democratic presidential nominee Joe Biden, who would be the second Catholic president should he win, has often leaned on his faith. During the first presidential debate, he highlighted his working-class upbringing in Pennsylvania and took a jab at Trump, saying “guys” like him and his friends would “look down their nose on people like Irish Catholics, like me, who grew up in Scranton.”
“People tend to think we all march to the beat of the same drummer,” said Thomas H. Groome, professor in theology and religious education at Boston College, who wrote the book of “Faith of the Heart.” “There is no lockstep Catholic vote; there is no lockstep position. All the Catholics don’t agree.”
The first Catholic justice, Roger Taney, joined the bench in 1836. A man of faith and a lawyer who defended an abolitionist preacher, calling slavery a “blot on our national character,” he nonetheless wrote the 1857 Dred Scott decision that upheld slavery, demeaned Black people as unfit for citizenship, and fueled the tensions that led to the American Civil War.
It took nearly 60 years for another Catholic to join the court.
The waves of Irish, German, and Polish immigrants from Central Europe, who arrived in the United States beginning in the mid-19th century, hugely increased the numbers and influence of Catholics in America, but those newcomers also often encountered harassment, nativism, and raw prejudice, driven in part by fear of their belief in the doctrinal infallibility of the pope.
“People had the idea that there was a Romanist conspiracy, that Catholics couldn’t be real Americans because their allegiance would be to the pope and not the US Constitution,” said Rebecca Brückmann, an assistant professor of North American history at Ruhr-University, Germany.
For much of the 20th century, there was an informal tradition, not consistently followed by presidents making court nominations, that there would be a Catholic seat and a Jewish seat on the court. No two Catholics served together until the 1980s. Catholics gained the majority for the first time with the swearing in of Alito in January 2006, and have held it ever since. The number increased to six when Sotomayor joined the court in 2009, but dropped back down to five after Scalia died in 2016.
“From the Puritans to the Framers and beyond, anti-'popery' was thick in the cultural air breathed by the early Americans,” Richard Garnett, a Notre Dame law professor, wrote that year in a newsletter for the university’s Cushwa Center for the Study of American Catholicism. Still, he said the new religious majority on the court indicated “that Catholicism is no longer regarded — or, at least, may not publicly be regarded — as particularly anti-American.”
The ascension of Catholics on the court has come amid a political realignment after World War II, when anti-communists, social traditionalists, and other conservatives began to forge new alliances. The so-called religious right movement in politics was fueled in large measure by opposition to changes pushed by civil rights activists in the 1960s. Disdain was especially directed at Chief Justice Earl Warren, who led the court as it handed down landmark rulings that banned racial segregation in public schools, expanded rights for women, and provided equal access to justice for criminal defendants who could not afford lawyers.
Conservative Catholics and evangelicals found common ground, forming an influential part of the base of the Republican Party, despite some fundamental disagreements over doctrine.
“Praying to the Virgin Mary, believing the bread and blood of Christ is literal bread and blood of Christ ... some evangelicals don’t believe Catholics are a true Christian faith because of these things,” said Stephanie Martin, an associate professor of political communication at Southern Methodist University.
And, for some Catholics, the reverse has been true.
Still, it has been Catholics, not evangelicals, who have been able to climb the fastest through the legal ranks. Earlier discrimination pushed Catholics to create their own parochial schools and universities, institutions such as Notre Dame and Boston College that sought to provide a broad curriculum, teaching divine and natural law.
Interest in the legal profession grew as Catholic families saw law and medicine as paths to the middle class. Catholic education also has been an impetus for many Catholics to enter public life; the Jesuits, in particular, often encourage people to live out their faith in the service of God and society. By contrast, evangelical schools are newer, and evangelical communities, which range from small Southern Baptists congregations to nondenominational megachurches, are more insular and lack cultural cohesion.
As Republicans have sought religious conservatives for the bench, the pool of Catholics has offered more options.
“It’s basically supply and demand,” Brückmann said. “And so they are not chosen for their religion, they are chosen for their politics.”
Overturning Roe v. Wade, opposing LGBTQ rights, and protecting the nuclear heterosexual family have been the most tangible goals for this wing of conservative jurists, scholars said. But the dispute between the conservative and progressive approach to jurisprudence also often rests on how much power the federal government has to compel states to protect individual rights and individual identities at the expense at what they regard to be traditional values, Martin said.
“It often gets distilled into the question over reproductive rights, but it is about much more than that,” she said.
Despite their rise to power and influence, religious conservatives — mainly white evangelicals — have continued to see themselves under attack.
And so, for some, Feinstein’s questioning of Barrett evoked similar probing of Thomas and Roberts over their ability to decide cases independent of the tenets of their faith. And it is being brought up again now, as the confirmation process for Barrett begins at a double-time pace.
Feelings remain raw. Speaking to group of Catholic lawyers in New Jersey in 2017, Alito recalled staying up to watch John F. Kennedy’s 1960 election as the first Roman Catholic president, feeling “it had lifted me up from the status of second-class American.”
Pointing to a Democratic lawmaker’s objection to his own nomination in 2005 because he’d make “too many Catholics on the court,” Alito declared the nation’s commitment to religious liberty was under fire.
But civil rights activists and public interest groups said they don’t object to the justices’ religion but to their records and remarks on and off the bench. Some 150 organizations have urged the Senate to block Barrett’s nomination, pointing to her stances on the Affordable Care Act’s guarantee of birth control, abortion access, LGBTQ rights, and criminal justice.
“It is really Democrats who are mobilized when thinking about the future of the court,” said Janelle Wong, government and politics professor at the University of Maryland. And Barrett’s potential to galvanize the left comes as fissures in the religious right alliance that made the Supreme Court’s conservative majority possible are starting to widen along class and racial lines, as many Black, Latino, and Asian Catholics and evangelicals have long been moving away from the broader political agenda, she and others said.
Concerns flared up again Monday when Thomas and Alito blasted the landmark decision granting marriage rights to same-sex couples, as the Supreme Court declined to take up the appeal of a former county clerk in Kentucky who was jailed after refusing to issue marriage licenses out of a religious objection to same-sex marriage.
Will that 2015 decision survive a court with six conservative justices? There is well-founded fear among liberals that, as with Roe, it will not.