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

100%

10/10

Justice Scalia (Catholic)

86%

19/22

Justice Kennedy (Catholic)            86%

18/21

Chief Justice Rehnquist

82%

18/22

Justice Thomas (Catholic)

79%

11/14

Justice O’Connor

77%

17/22

Justice Breyer

58%

7/12

Justice Souter

53%

8/15

Justice Brennan (Catholic)

43%

3/7

Justice Ginsburg

42%

5/12

Justice Stevens

36%

8/22

Justice Blackmun

20%

2/10

Justice Marshall

13%

1/8

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.