In case you haven't heard, President Obama has nominated Second Circuit Judge Sonia Sotomayor to the Supreme Court. This has, of course, been somewhat overshadowed, at least in the circles I run with, by the California Supreme Court's tragic decision this morning upholding Proposition 8 (I say "tragic" because I believe the decision is legally correct only because California's laws related to constitutional amendments are horrible, as is the California constitution itself).
One interesting aspect of the Sotomayor nomination is that her inevitable confirmation will result in the Supreme Court being a solid two-thirds Catholic. The current "Catholic Block" is coterminous with the "Conservative Block," though it includes perennial wildcard Anthony Kennedy. The four more reliable conservatives -- Roberts, Scalia, Thomas, and Alito -- are all Catholics. Breyer and Ginsburg are Jews and Stevens is the sole representative of America's oppressed Protestant minority.
The Catholicism of the conservative Justices is most often discussed in relation to their abortion jurisprudence, as the Catholic church is, of course, not a big fan of abortion (it's not a big fan of the death penalty, either, but let's ignore that inconvenient fact for the time being). After the Court upheld a ban on so-called partial-birth abortion in Gonzales v. Carhart back in 2007, for example, this marginally offensive cartoon showed up in the syndicates:
The cartoon suggests rather explicitly, and probably unfairly, that the five Catholic Justices let their religious beliefs dictate their votes in the abortion case. In response to this cartoon and some other grumblings about religious beliefs influencing judicial votes, this slobbering editorial by John Yoo graced the pages of the Wall Street Journal, inartfully attempting to call out those of the "know-nothing left" who blamed the Justices' faith for their stance in the Carhart case. (I should add that, from what I hear, John Yoo is a pretty good professor, but setting aside the whole torture thing his editorials read like something out of a high school newspaper.)
The point is, it looks like we're going to be getting a solid librul Catholic on the Court, so it should be interesting to see the reactions to her anticipated votes on abortion cases and, for that matter, death penalty cases. I expect we'll get a lot of howling from conservative Catholics if Sotomayor votes in favor of abortion rights, just as Catholic Democratic politicians have been slammed, and even denied their place at the Lord's Table, for being pro-choice. These complaints will sound all the more shrill in view of the relative lack of controversy over the conservative Justices' consistent, unflagging, and in some cases all-to-enthusiastic support of the death penalty. The easy response to this is to fall back on a conservative legal philosophy -- i.e., that the death penalty is specifically mentioned in in the Constitution while abortion rights were dreamed up by the Court in Roe v. Wade, but in that regard Catholic critics are on no firmer (or weaker) ground than anyone else, and religion shouldn't come into it at all.
For the time being, of course, critics are more worried that Sotomayor's womanity and Puerto Ricanness will force her to vote in favor of underrepresented minorities, but the cognitive dissonance among Sotomayor's likely Catholic opponents regarding the abortion/death penalty issue should be interesting to observe.
I'd also like to point out that for all the talk of an 8:1 gender ratio failing to reflect the makeup of American society, which I generally agree with, nobody seems to be losing sleep over making sure America's religious communities are proportionally represented on the bench. Apparently identity politics has its limits.
