The Catholic Bishops in the Rehnquist Court: Track Record as Amicus Curiae

By my count, the United States Conference of Catholic Bishops filed amicus curiae briefs in 22 cases during the Rehnquist Court. (For a spreadsheet showing USCCB amicus briefs and Justices’ votes for OT86-OT10, see here. Please let me know if the spreadsheet contains any errors.) Ten of the briefs dealt with religious liberty (encompassing statutory, Free Exercise, and Establishment Clause cases); six addressed abortion; three were about end-of-life issues; two involved the death penalty; and one addressed associational freedom. The chart below provides for crude comparisons among the Justices, placing them in an array of more or less agreement in their votes for the party (petitioner or respondent) supported by the USCCB’s amicus curiae briefs. Direct comparisons cannot be made among all the Justices due to the changing composition of the Court over this time period.

Justice Name

Agreement with Bishops’ Conference as Percentage of Cases

Agreement with Bishops’ Conference as Fraction of Cases

Justice White



Justice Scalia (Catholic)



Justice Kennedy (Catholic)            86%


Chief Justice Rehnquist



Justice Thomas (Catholic)



Justice O’Connor



Justice Breyer



Justice Souter



Justice Brennan (Catholic)



Justice Ginsburg



Justice Stevens



Justice Blackmun



Justice Marshall



The point of counting votes in this particular way is not to assess the influence of the Bishops’ Conference. It is highly doubtful that the Conference’s presence or absence as amicus curiae has had any effect on how the Justices voted. The point, instead, is to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

Joseph Weiler at St. John’s Law School

The Center for Law and Religion is delighted to announce that Professor Joseph Weiler (NYU) will visit us at St. John’s Law School next Monday, March 5, at 5:30 pm.  His is the third session in our ongoing seminar, Colloquium in Law: Law and Religion.  Professor Weiler will be presenting a paper dealing with the case of Lautsi v. Italy, which involved the display of the crucifix in Italian public schools and in which he was an advocate for several intervening European states.  Academics in the New York area and beyond are welcome to attend.  Please contact me if you wish to do so.

Justice Brennan and Justice White from the Catholic Bishops’ Point of View

During his time on the Rehnquist Court, Justice Brennan voted in seven cases in which the United States Conference of Catholic Bishops (the “USCCB” or “Bishops’ Conference”) filed an amicus curiae brief. He voted for the party supported by the Bishops’ Conference in three out of those seven cases. By contrast, during his time on the Rehnquist Court, Justice White voted in ten cases in which the USCCB filed an amicus curiae brief (the same seven as Justice Brennan, plus three more). He voted for the party support by the Bishops’ Conference in all ten of those cases.

The low level of agreement between Justice Brennan and the Bishops’ Conference is notable given that Justice Brennan was the last beneficiary of a so-called “Catholic seat” on the Supreme Court.  And Justice Brennan’s voting pattern presents an interesting contrast with Justice White’s.  The contrast is noteworthy because President Kennedy appointed White. As the country’s first (and thus far only) Catholic President, Kennedy could not politically afford to nominate a Catholic to the Supreme Court.  By contrast, Brennan’s Catholicism was an important factor in making him an attractive nominee for Eisenhower.  Thus, one reason that Brennan was appointed is that he was a Catholic, while one reason White was appointed is that he was not a Catholic.  Yet White ended up consistently voting with the Catholic bishops on the Rehnquist Court, while Justice Brennan had one of the lowest rates of agreement during the same time period.

There were five other Justices who voted in all ten cases in which the Bishops’ Conference filed an amicus curiae brief and in which Justice White voted: Chief Justice Rehnquist, Justice Blackmun, Justice Stevens, Justice O’Connor, and Justice Scalia. Rehnquist and Scalia joined White in voting for the party supported by the Bishops’ Conference in all ten of these cases. Justice O’Connor voted for that party in eight out of those ten cases, Justice Stevens in three, and Justice Blackmun in two. In the first several years of the Rehnquist Court, then, the three Justices with the best track record from the point of view of the Bishops’ Conference consisted of two Protestants (Chief Justice Rehnquist and Justice White) and one Catholic (Justice Scalia).

Scientific Progress and the Socio-Religious Worldview

This month, Baylor University Press publishes Rhetorical Darwinism: Religion, Evolution, and the Scientific Identity by Professor Thomas M. Lessl of the University of Georgia Department of Communication Studies.  Please see the publisher’s abstract below.

Everything evolves, science tells us, including the public language used by scientists to sustain and perpetuate their work. Harkening back to the Protestant Reformation—a time when the promise of scientific inquiry was intimately connected with a deep faith in divine Providence—Thomas Lessl traces the evolving role and public identity of science in the West.

As the Reformation gave way to the Enlightenment, notions of Providence evolved into progress. History’s divine plan could now be found in nature, and scientists became history’s new prophets. With Darwin and the emergence of evolutionary science, progress and evolution collapsed together into what Lessl calls “evolutionism,” and the grand scientific identity was used to advance science’s power into the world.

In this masterful treatment, Lessl analyzes the descent of these patterns of scientific advocacy from the world of Francis Bacon into the world of Thomas Huxley and his successors. In the end, Rhetorical Darwinism proposes that Darwin’s power to fuel the establishment of science within the Western social milieu often turns from its scientific course.

The Impact of Faith on Higher Education

This year Oxford University Press will publish No Longer Invisible: Religion in University Education by Professors Rhonda Hustedt Jacobsen and Douglas Jacobsen of Messiah College.  Please see the publisher’s abstract below.

Drawing on interviews with hundreds of university professors, co-curricular educators, administrators, and students from public and private colleges and universities across the United States, Douglas and Rhonda Hustedt Jacobsen demonstrate that religion is central to the work of higher education in the twenty-first century.

Religion Matters begins with an examination of the history of religion in American society and higher education, from Protestant establishment to secular dominance to the much more complex and pluralistic dynamics of the culture today. The authors define religion carefully, identifying three different modes of faith: historic religion, public religion, and personal religion. The second half of the volume explores six educational topics where religion intersects with the core goals and purposes of college/university education: religious literacy, interfaith etiquette, framing knowledge, civic engagement, convictions, and character and vocation. The authors pose key questions: What should an educated person know about the world’s religions? What does it mean to interact appropriately with members of other faiths? What assumptions and rationalities, secular or religious, shape the way we think? What values and practices, secular or religious, guide civic engagement? How do personal beliefs interact with the teaching and learning process? How might colleges and universities point students toward lives of purpose and meaning?

This volume shows that by paying careful and nuanced attention to the role of religion, educators can enhance intellectual life in any college or university.

From Roper to Rosie to . . .

For some time now, I’ve been kicking around a draft paper about the Catholic Justices on the Roberts and Rehnquist Courts. Its genesis was a somewhat jarring liturgical experience, when the Prayers of the Faithful included a prayer of thanksgiving for a Supreme Court decision interpreting the Eighth Amendment that was authored by one Catholic Justice (Kennedy), with a dissent authored by another Catholic Justice (Scalia) and joined by yet another (Thomas). Over time, the paper morphed into a response to what one might think of as the Rosie O’Donnell or Geoff Stone view of the Catholics on the Supreme Court. (See here, around the 4:45 mark, for O’Donnell; here for Stone.) Reconceived in such a manner, however, I later realized that the paper had drifted in the wrong direction, for it is difficult to say something new, true, and interesting in direct response to a position already widely believed to be old, false, and uninteresting. But the lines of inquiry I had been pursuing may yet yield some insights into the Roberts Court’s approach not only to the sorts of issues that draw the institutional interest of the Catholic Church, but also to constitutional (and related statutory) decisions more generally.

The principal methodological move that I have made in developing the paper has been to consider the views of the Justices in conjunction with the amicus curiae briefs filed on behalf of the United States Conference of Catholic Bishops over the past twenty-five years (from the beginning of the Rehnquist Court in 1986 through the first six years of the Roberts Court, ending in spring 2011). The personnel changes over the last quarter-century on the Supreme Court make direct comparisons of Justices difficult, but the set of cases is large enough to yield interesting insights that I aim to share in my next few posts.

Thanks to Ashley Berner

We at CLR Forum want to thank Ashley Berner for absolutely superb, thoughtful, and deeply interesting commentary.  She has enriched our reflections and discussions immensely.  Her posts may be accessed here.  She may stay on for a bit to wrap up a few thoughts.  And hopefully she will agree to come back sometime soon.

CLR Forum Welcomes Kevin Walsh!

We are delighted to welcome Professor Kevin Walsh to CLR Forum for the next few weeks.  Kevin is a law professor at the University of Richmond School of Law, where he teaches courses in constitutional law, federal courts, and religion and the Constitution, among others.  Kevin is a graduate of Harvard Law School, after which he clerked for Judge Paul V. Niemeyer and Justice Antonin Scalia.  He writes primarily in the areas constitutional law and federal courts, and he also has scholarly interests in law and religion.

Garnett on the Ministerial Exception

The on-line interview series, Dialogues on Law and Justice, first noted by my colleague Mark, has posted a very useful and informative dialogue with Rick Garnett (Notre Dame) about the ministerial exception; the Hosanna-Tabor case and the several positions of the government, the legal academy, and the Court; some of the mechanics of Supreme Court cert. review; the relationship of the ME to other free exercise issues; and the various meanings of church-state “separation.”  Check it out.

“The Theological Aspirations of Secular Politics”

This is an interesting short review of a new book by Simon Critchley.  Here’s a paragraph which was particularly eye-catching (h/t Sam Bray):

The thinker who has done most to expose the theological aspirations of secular politics, and especially its infatuation with some version of providential design, is John Gray. Like Critchley, Gray thinks of modern politics as “a chapter in the history of religion”. What begins with the millenarian thinking of the Hebrew scriptures finds its expression in the bloody utopianism of the Jacobins, the Nazis and Stalin. Here, the book of Revelation is the surprising template for modern political action. “What is essential to neoliberal millenarian thinking is the consolidation of the idea of good through the identification of evil, where the Antichrist keeps assuming different masks: Saddam Hussein, Osama Bin Laden, Kim Jong-il, Mahmoud Ahmadinejad, and so on,” Critchley writes. For Gray, the reason to expose the theological underpinnings of political discourse is to exorcise its power. Only tragic pessimism can free us from the violence of the theologian’s ambition. But there are no votes in tragic pessimism. So the bloodshed continues.