Religion on the bench

If Judge Neil Gorsuch is confirmed, he will be the first Protestant U.S. Supreme Court justice since 2010. An Episcopalian, he attended a Catholic secondary school.

Of the current eight justices, five identify themselves as Catholics: Chief Justice John Roberts, Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonya Sotomayor. Identifying themselves as Jewish are Justices Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan.

For 50 years after the court’s foundation, only Protestants served as justices. President Andrew Jackson broke the ice when in 1835 he nominated a Maryland Catholic, Roger Brooke Taney, as associate justice. Anti-Catholicism was loud and strong at the time. Taney was not confirmed.

Jackson never gave up on anything and did not forget Taney. Soon after the Taney nomination failed, the chief justice died. Jackson immediately resubmitted Taney’s name.

Taney was confirmed, becoming the first Catholic justice — and chief justice.

Taney himself died in 1864. Thirty years after Taney, President Grover Cleveland wished to solidify his political base in the South, so he chose a former Confederate soldier, Edward Douglass White, from Louisiana, to be a justice. Confirmed without much anti-Catholic criticism, White became the second Catholic on the high court in history. Highly regarded, Justice White was nominated and confirmed as chief justice in 1910. He died in office in 1921.

Since that time, with a few interludes, Catholics always have been on the court, but for many years it was conventional political wisdom that only one Catholic should be a justice at a time. People spoke of “the Catholic seat” on the court, not the “Catholic seats.”

President Ronald Reagan ended that tradition in 1986 by nominating Catholic Antonin Scalia to the bench to serve alongside Justice William Brennan, a Catholic named in 1957 by President Dwight Eisenhower. In 1988, Reagan named Anthony Kennedy, another Catholic.

In 1991 President George H.W. Bush appointed Clarence Thomas, a Catholic. President George W. Bush nominated Catholics John Roberts in 2005 and Samuel Alito in 2006. President Barack Obama chose Sonya Sotomayor, another Catholic, in 2009.

It took more time for custom to accept a Jewish justice. No president risked appointing a Jew to the court until 1916, when President Woodrow Wilson nominated Louis Brandeis, a lawyer in Louisville, Kentucky.

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Brandeis had two strikes against him: his Judaism, and he was an immigrant. His confirmation was not the best moment for religious tolerance in America, but he was seated. Justice Brandeis became one of the legal giants in Supreme Court history.

After him, it was hard to argue that a Jew could not be wise or loyal to the Constitution.

When Brandeis died in 1939, President Franklin D. Roosevelt chose another Jew, and another immigrant, Felix Frankfurter, to succeed him. People referred to “the Jewish seat,” but it was one Jew at a time.

President Bill Clinton nominated Ginsberg, a Jew, to the court in 1993. She still serves.

A year later, Clinton named Breyer, another Jew, to the court. The “one-Jew-at-a-time” unwritten law died. Breyer still is in office. The third Jewish justice presently serving is Kagan, appointed in 2010 by Obama.

When Andrew Jackson nominated Catholic Roger Brooke Taney 181 years ago, nobody dreamed that one day the high court would be a Catholic-Jewish monopoly.

It no longer will be if Gorsuch is seated.

Msgr. Owen F. Campion is OSV’s chaplain.