The New York Times recently invited former clerks to contribute some memories of their boss, outgoing Supreme Court Justice John Paul Stevens. The charming recollection of Jeffrey L. Fisher, associate professor at Stanford, who clerked from 1998 to 1999, says so much about the modesty and civility of Stevens. Fisher recalled how an attorney arguing before the court for the first time kept referring, in her nervousness, to individual justices as “judges.” After being corrected twice for her presumption by an arrogant Chief Justice William Rehnquist, she inadvertently referred to Rehnquist as “Judge.” Rehnquist admonished her that “his court is composed of justices, not judges.”
Stevens immediately interjected: “It’s O.K., Counsel. The Constitution makes the same mistake.”
Around here, we feel a special affinity for any of the four Supreme Court “judges” who voted with us, as Stevens did, in the Hein vs. FFRF case (in which we asked the court for the simple right to sue President Bush for creating the White House Office of Faith-Based Initiatives).
In addition to being the oldest justice, Stevens is the last of the nominally Protestant justices left. Washington Post reporter Robert Barnes and NPR’s Nina Totenberg have broken a taboo, by examining the fact that six out of the current nine justices on the Supreme Court are Roman Catholic. Ruth Bader Ginsburg and Stephen Breyer are Jewish; Sonia Sotomayer, who just replaced Justice Souter, became the sixth Catholic. The five other Catholics largely vote as a conservative bloc. Anthony Kennedy can’t seem to resist that siren call of his Catholic brethren. (Sotomayer, we hope, will resist altogether their lure.)
The appointment of a sixth Catholic justice showed a serious lack of attention to detail on the part of the Obama Administration last year. Should the vast majority on our Supreme Court worship at the same church or come out of the same religious tradition? Does it serve our nation to have six justices schooled at least in part in religiously segregated institutions?
The rumored current short list for a Stevens replacement includes 7th Circuit Judge Diane Wood, newly appointed to that bench, a former colleague of Obama — and the only nominally Protestant judge on the short list a week ago. Two other names we’re hearing are Jewish judges: Judge Merrick Garland on the federal appeals court in Washington — the most conservative of the potential nominees, and Solicitor General Elena Kagan. This week, we started to see other names, including Michigan Gov. Jennifer Granholm — a Catholic! (albeit a liberal Catholic whom I personally like). But would Obama seriously consider appointing someone who would make a seventh seated Catholic? It strains credulity.
And wouldn’t it be nice if someone were worrying about whether nonbelievers were properly represented on the court? Instead, some register horror at the notion that Obama should take care to avoid another Catholic appointment. That would be a religious test for public office? Although Catholics are the single largest sector by denomination, there are actually, of course, far more Protestants in our nation. Roman Catholics are 24% of the population, but nonbelievers are 15%. Heck, we’re tied with Baptists for second place in demographics! So if we’re looking to represent views on religion, shouldn’t the president and Senate consider reserving an “atheist seat” too?
The idea that we can’t discuss Catholic domination on the high court is how we got into this disproportionate situation in the first place! At stake are hot-button constitutional issues: When life begins, when life can end, death with dignity, abortion, abortion funding, stem cell research, cloning for medical purposes, gay rights, marriage equality, the separation between church and state. And, we could add to the list as a potential case, the prosecution — or lack of prosecution — of Roman Catholic officials for sex crimes and coverup. A case may be wending its way up to the Supreme Court over the right of abuse victims to sue the pope himself. Are six justices supposed to recuse themselves?
Look at the open interference of the Roman Catholic hierarchy over constitutional rights. In the Terri Schiavo case, her Catholic parents and Catholic supporters got Congress to openly defy an independent judiciary. In the debate over health care reform, the Church not only tried to eliminate the right to even privately held abortion coverage for all women, but managed to strong-arm the President into vowing that the cutoff of federal funding for abortion will continue. (Namely, the infamous and cruel Hyde Amendment, named for its Catholic sponsor.)
Catholic Nancy Pelosi, much scolded by her church, should be given her due for standing up to her church on health care and abortion. It goes without saying that there are many progressive Catholic politicians and judges these days who are highly competent jurists. But even they should be looking askance at the ultra-domination of one religion on our highest court.
Justice has never been that blind!