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).

2 thoughts on “Justice Brennan and Justice White from the Catholic Bishops’ Point of View

  1. I’m not sure that WJB should be labelled “the last beneficiary of a so-called ‘Catholic seat’ on the Supreme Court.” Yes, we have stopped referring to Supreme Court *seats* that way. That’s to the good, especially because “seat” talk often meant that there should be one but only one Justice of whatever type was being discussed. But could Catholicism (or any other religion, or irreligion, etc.) really have been irrelevant to any post-1956 President’s thinking about whom to nominate to a Court vacancy? I assume that such factors have been in the mix every time, because judicial appointment occurs through political actors who care about (perhaps among other things) constituencies that care about their representation and, at least correlated in their minds to representation, their outcome priorities.

  2. Perhaps it’s just a question of labeling. I don’t intend to make the strong claim–which would be wrong–that Catholicism has been “irrelevant” in any appointments of Catholic Justices after Brennan’s. But at least for the Scalia and Kennedy nominations (the next Catholics), Catholicism was a much less significant factor than many others. That is why Barbara Perry, writing in 1989, placed their nominations in the category of “The Decline of the Catholic Seat.” See Barbara A. Perry, The Life and Death of the “Catholic Seat” on the United States Supreme Court, 6 Journal of Law and Politics 55 (1989). Looking back at the Robers and Alito nominations, it is probable that their Catholicism entered into the Administration’s consideration in connection with shoring up pro-life support. But the idea that they would be contributing somehow as Catholic representatives–the idea behind the concept of a “seat” of a particular sort–was not part of the story.

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