Should Catholic Justices Recuse Themselves on Certain Cases?

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Ms. Appleby, UCLA emerita professor, is the author of The Relentless Revolution: A History of Capitalism, forthcoming this fall. She is the co-founder of History News Service. Attribution to the History News Service and the author is required for reprinting and redistribution of this article.

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.

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Nancy REYES - 6/21/2009

Didn't Woodward's book the Brethren report that some of the supreme court justices chose the Roe case so that they could change the law? And that one of their wives was active in an organization that pushed for reproductive rights?

So I presume you only want justices who support the agenda (dare I say religion?) of the progressives to have a say in the court? Isn't this a religious test that is forbidden by the constitution?

Larry DeWitt - 6/15/2009

Professor Appleby—a scholar of stature and accomplishment—is unfortunately a purveyor of what I call Multicultural Postmodernism, which while admirable in general terms, often causes its adherents to conflate their own policy preferences with objective principles of national governance.

In this instance, Appleby is promoting a shameless double-standard. In this essay she wants to have it both ways: she wants to congratulate America for moving from a high court that was dishonored by racial, gender, and religious tests for membership; but then, she wants to re-impose just such a block when the Court may not support her particular political preferences. She wants Catholic justices to recuse themselves from sitting on cases involving gay marriage, abortion and capital punishment—because she fears Catholic jurists might not share her own views on these issues.

If Professor Appleby were being honest about it, she would have to acknowledge that what she is saying here is that she supports same-sex marriage and legal abortion, and she opposes capital punishment, and she is now worried that the composition of the Court does not suit her political preferences. Thus she wants to impose a kind of de facto religious test for Court membership—on a case-by-case basis. She does not want to rule Catholics ineligible to sit on the Court but she does want to prevent their presence from having any effect in those cases where they might not share her policy preferences. When that seems likely to happen, suddenly she finds new virtue in a religious test for Supreme Court justices.

Notice that what Professor Appleby is doing here is treating her position on these issues as somehow being the default position, and so it seems, to her way of thinking, that blocking the influence of justices who might have a different view is just by way of doing the right thing.

This idea is profoundly and fundamentally undemocratic. The democratic process here is: President nominates; Senate confirms; Justices rule. Nowhere in the democratic process does it allow for professors who might have a different opinion than a sitting Justice to disallow that Justice to rule on a case. That truly is a form of intellectual arrogance.

Professor Appleby—a scholar of stature and accomplishment—ought to be ashamed of herself.

Thomas R. Clark - 6/15/2009

As a former student of Joyce Appleby, I have only the greatest respect for her. She was by far one of the most intellectually engaging professors that I worked with as doctoral student at UCLA.

But as a Catholic I find her reasoning offensive and her assumptions completely unfounded for the following reasons:

First, at the risk of stating the obvious, not all Catholics share the political positions of the leadership of the Church, and I assume that the Justices are no different than the rest of us in this regard.

Second, Catholics are not the only religious group that takes positions on these issues -- presumably Jews, Protestants, Quakers, Anglicans, Unitarians and Muslims also take positions on issues like abortion, same-sex marriage, and the death penalty that are partly influenced by their religious beliefs. (Professor Appleby seems to have sided with conservatives who think that judges somehow rule, or should rule, strictly on the basis of the fiction that judges make decisions based only on "legal reasoning" or the "rule of law," with complete autonomy from other values of beliefs. I thought the legal realists of the 1930s had finally put such notions to bed, but apparently not.)

Third, it is sinmply not true that Catholics on the bench take the official Catholic position on issues. While it is true, of course, that the conservative Catholics on the Court tend to vote in ways that restrict reproductive choice, they do not vote "as Catholics" on other issues. For example, Justice Kennedy, a Catholic, wrote one of the most progressive gay rights opinions in the Court's history in Lawrence v. Texas.

Finally, do the Court's Catholics vote as Catholics on issues involving the war in Iraq or the death penalty? Even the conservative Pope Benedict has suggested that the war in Iraq does not meet ANY ONE of the required elements of a Catholic "Just War," let alone ALL of the required elements that are necessary to justify war. Yet, the Catholics on the Court (again Justice Kennedy partly excepted) have overwhelming voted to uphold and authorize George Bush's immoral actions in conducting this unjust war. The Justices take a conservative position, to be sure, not a Catholic one.

While the Catholic Church holds out the possibility that the death penalty could be justified in very narrow circumstances, it is ONLY when there is no other way to prevent an imminent and obviously greater evil. Pope John Paul II made it clear that none of the existing uses of the death penalty could possibly be justified. Yet, again, the conservative Catholics on the Court have been the ones most likely to uphold the death penalty.

I would posit that while the Catholics on the Court may tend to vote consistently with the Church's position on abortion and same-sex marriage, they do not vote this because they are Catholic; they vote this way but because they are conservatives who happen to be Catholic. If they always voted as Catholics, they would vote as liberals on the issues of the war and the death penalty.

Tom Clark

Jonathan Dresner - 6/15/2009

we require judges to withdraw from deliberations whenever a personal interest is involved.

Moral, ethical and legal convictions are part of what makes a justice more useful than a mere "umpire" and should be considered in the appointment and confirmation process.

If a justice fails to separate, though, their private religious beliefs from constitutionally justifiable legal and ethical issues, then they should recuse themselves.

But to assume that such recusal would be necessary is to return to the un-American tradition of the Religious Test.