Anti-Roe judges are part of the conservative wing of Catholicism
By PETER SMITH
The Supreme Court overturned Roe v. Wade at a time when she has an unprecedented Catholic supermajority.
It is not a coincidence. That’s not the whole story either.
The justices who voted to overthrow Roe were shaped by a church whose catechism affirms “the moral evil of any induced abortion” and whose U.S. bishops have declared opposition to abortion their “preeminent priority” in the public policy.
But that alone doesn’t explain the judges’ votes.
American Catholics as a whole are far more ambivalent about abortion than their religious leaders, with more than half believing it should be legal in all or most circumstances, according to the Pew Research Center.
Notable Catholics who support abortion rights include President Joe Biden and House Speaker Nancy Pelosi, both Democrats. Democratic-appointed Catholic Judge Sonia Sotomayor dissented in Dobbs v. Jackson Women’s Health Organization which overruled Roe.
But the Dobbs majority justices are not just birthplace Catholics. Many have ties to intellectual and social currents within Catholicism which, despite all their differences, share doctrinal conservatism and strong opposition to abortion.
“It’s not just about choosing Catholics,” said Steven Millies, professor of public theology at the Catholic Theological Union in Chicago and author of “Good Intentions: A History of Catholic Voters’ Road from Roe to Trump.”
“It’s because they’re particular types of Catholics, traveling in particular Catholic circles that not everyone in your local parish identifies with,” Millies said.
In Dobbs, five judges voted to overthrow Roe – Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. A sixth, Chief Justice John Roberts, balked at overthrowing Roe but voted to keep the Mississippi abortion restrictions in question.
All six were raised Catholic.
Most went to some combination of high school, college, or Catholic graduate school. The one exception, the author of Dobbs Alito, fondly described growing up in a home where “church and family” were paramount. Five of the six justices still identify as Catholic, while Gorsuch attended an Episcopal church more recently.
The Supreme Court has been dominated by Protestant justices for much of its history. The majority has been Catholic since the 1990s, and for several years over the past decade the court had six Catholic judges, three Jews and no Protestants. ( Newly sworn in Judge Ketanji Brown Jackson identifies himself as Protestant.)
But religious identity has mattered less lately than ideology, which is why conservative evangelicals have encouraged Republican-appointed Catholics, said Nomi Stolzenberg, a professor at the University of Southern California, specializing in law and religion.
In fact, eight of the last nine Republican nominees to be confirmed to the Supreme Court, from the Reagan presidencies to the Trump presidencies, have Catholic pedigrees.
This religious demographic may seem striking given the Republicans’ staunch evangelical Protestant constituency.
But this is partly a question of the pool of available talent: the descendants of Catholic immigrants have worked intensely in legal professions.
Catholic institutions built their own intellectually rigorous law schools to facilitate social assimilation and upward mobility. Duquesne University Law School in Pittsburgh began as a night school for working-class immigrants.
Over time, Catholics studied in Ivy League schools and rose to the judicial elite.
“It’s a story of immigrants, how Catholics and Jews overcame anti-Catholic and anti-Semitic resistance and eventually invaded elite schools,” Stolzenberg said. A 2017 study found that 28% of federal appellate judges are Catholic and 19% are Jewish.
Millies said some early Republican-appointed justices disappointed conservatives by voting to support Roe.
“Republicans were looking for an identifier in the selection process that would make them safe,” he said. “In the 80s, he became a Catholic.”
This, too, reflects immigrant history, Millies said, as many midcentury Catholics sought to prove their American bona fide as staunchly anti-Communist social conservatives.
“Catholics have earned a place of honor in American culture as dependable and patriotic Americans,” he said.
Even the Catholic candidates were not all reliable. Anthony Kennedy, now retired, claimed Roe and gay marriage. But subsequent Republican administrations have also reviewed candidates’ court records and their involvement with influential organizations such as the Federalist Society, Millies said.
Gorsuch, who, like several members of the Dobbs majority, appeared at several Federalist Society events, studied at Oxford University with Catholic legal philosopher John Finnis.
Finnis is a supporter of “natural law”, described in the Catholic Catechism as “the original moral sense which enables man to discern by reason good and evil”. Gorsuch himself applied this principle in a book opposing assisted suicide.
“Gorsuch may no longer be a practicing Catholic – we don’t know,” Stolzenberg said. “What we do know is that his legal philosophy is shaped by the conservative Catholic philosophy of natural law.”
Barrett has long been affiliated with People of Praise, an ecumenical Christian group with a large Catholic membership. It combines doctrinal and moral conservatism, including opposition to abortion.
Thomas was raised Catholic in a largely Protestant extended family and briefly attended a Catholic seminary, then attended an Episcopal church before returning to Catholicism. He praised the Catholic nuns who taught him and the grandfather who raised him, a Catholic who “worked hard to support his family” and “a deeply religious man who lived by Christian virtues. “.
Thomas, agree on Dobbs, went further to say that the court should reconsider other rights that previous courts have granted based on legal theories similar to Roe. Such precedents have overturned state laws against contraception, gay sex, and same-sex marriage.
In a speech at Notre Dame University in 2021, Thomas paid tribute to the influence of the late Justice Antonin Scalia, long the court’s conservative mainstay.
Despite their different backgrounds — Thomas grew up in segregated Georgia in an African-American family with a limited education, Scalia, New Jersey as the son of an Italian immigrant with a Ph.D. — “we were both Catholic , attended parochial schools and … benefited from a common culture,” Thomas said.
Scalia – who regularly attended Mass in Latin, a rite that appeals to many conservative Catholics – influenced not only Thomas but other recent appointees.
“All those people would say, ‘We’re Scalia fans,'” Stolzenberg said. “Scalia was a conservative Catholic. This marked him a lot and marked his legal philosophy.
But with the Tories racking up win after win on the pitch – knocking down Roe, easing restrictions on guns and expand religious access to public forums and silver – their coalition will be tested, observers said.
They have long coalesced around the idea of “originalism” – that judges should interpret the Constitution according to how its framers intended or applied it.
But originalism, with its supposed moral neutrality, “is no longer going to serve the needs of the pro-life coalition,” said Bruce Ledewitz, a professor at Duquesne University School of Law who specializes in constitutional law and religion. Some talk about legislation. declare fetal personality, and “originality doesn’t get you there,” he said.
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