Author Archives: Kevin C. Walsh

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

In the first six years of the Roberts Court (OT05-OT10), the United States Conference of Catholic Bishops filed seven amicus curiae briefs. Four dealt with religious liberty  (Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, CLS v. Martinez, Arizona School Tuition Organization v. Winn, and Hosanna-Tabor v. EEOC), two addressed abortion (Ayotte v. Planned Parenthood and Gonzales v. Carhart), and one dealt with assisted suicide (Gonzales v. Oregon). The table below compares the Justices by whether they voted for the same party supported by the Bishops’ Conference as amicus curiae.

Justice Name

Agreement with Bishops’ Conference as Percentage of Cases

Agreement with Bishops’ Conference as Fraction of Cases

Chief Justice Roberts (Catholic)

100%

7/7

Justice Scalia (Catholic)

100%

7/7

Justice Thomas (Catholic)

100%

7/7

Justice Alito (Catholic)

100%

4/4

Justice Kennedy (Catholic)

71%

5/7

Justice Stevens

50%

2/4

Justice Souter

50%

2/4

Justice O’Connor

50%

1/2

Justice Ginsburg

43%

3/7

Justice Breyer

43%

3/7

Justice Sotomayor (Catholic)

33%

1/3

Justice Kagan

33%

1/3

These statistics reveal a stark division between the Catholic and the non-Catholic Justices, a division that is likely to shape up more and more as one between the Republican appointees (all Catholic) and the Democratic appointees (one of whom is Catholic). The three cases in which the party supported by the Bishops’ Conference garnered the votes of the non-Catholic Justices were all unanimous decisions (Hosanna-Tabor v. EEOC, Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, and Ayotte v. Planned Parenthood). The party supported by the Bishops’ Conference did not attract the votes of a single non-Catholic Justice in any split decision.

As noted in connection with the earlier chart showing the same measure in the Rehnquist Court, the point of this measurement is not to demonstrate influence, but rather 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.

 

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.

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).

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.