If confirmed, Samuel Alito Jr. would be the fifth Catholic on the current U.S. Supreme Court, giving the country a Catholic majority on the high court for the first time.

The nation’s response? A collective ho-hum, reflecting how times have changed from only decades ago when Catholics in public life faced questions – even accusations – from Protestants about their national loyalties, historians and law professors said.

“The most remarkable thing about it (a Catholic majority on the court) is that it’s unremarkable,” said Dennis Coyle, assistant professor of politics at Catholic University in Washington, D.C. “That says something about how mainstream Catholicism has become in intellectual and legal circles.”

In coming years, the court is likely to hear cases on partial-birth abortion, mandated parental notifications of abortion, same-sex marriage, and the relationship between religious institutions and government, legal scholars said.

Polls show Catholics, who make up a quarter of the American population, as divided on these social issues as the rest of the country.

How might a Catholic-majority court approach these cases, given Vatican stands against abortion and same-sex marriage? Probably no differently than other courts that have a mix of conservative, moderate and liberal justices, law professors said.

The Catholic justices – Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas, and Alito, if he wins confirmation – would form the court’s conservative bloc.

Present court alignments notwithstanding, Catholicism is no predictor of judicial temperament, said Scott Moss, associate professor of law at Marquette University Law School.

“It just so happens that the five Catholics on the court (including Alito) are extremely conservative folks,” he said. “But the Catholic justice preceding these five was William Brennan, who was more liberal than anyone on the court today.”

The way their religion affects Catholic judges differs from justice to justice, said Timothy Thibodeau, history professor at Nazareth College in Rochester, N.Y., and an expert on the Catholic Church.

“If Scalia gets a case that involves deep ethical dilemmas, it’s not a knee-jerk reaction that he’ll say, “I’m a Catholic, I have to do this.”‘ Thibodeau said. “His thinking on complex ethical moral issues that the court can face will be shaped by a Catholic tradition of ethics, a Catholic tradition of thinking philosophically about these things.”

The religious views of justices may indirectly contribute to their decisions on specific cases, but generally in indecipherable ways, legal scholars said.

“If a judge comes with a view that abortion’s a troubling act, that Roe vs. Wade is a troubling precedent … that could color how it (a decision on abortion restrictions) comes out,” said Rick Garnett, associate professor of law at Notre Dame Law School.

“That doesn’t mean the judge is imposing her religion on anybody, just that the judge has certain ways of (interpreting) that law that are shaped by important experiences in her life, and religion’s one of them.”

Ever since President Bush was elected in 2000, conservative Christians have hoped he would appoint justices who would overturn Roe vs. Wade, which legalized abortion nationwide in 1973.

Prominent Catholic clergy have criticized Catholic politicians who support laws contrary to church doctrine, but judges have a different role than people who make the laws, legal scholars said.

“Catholic judges, like other judges, have obligations to uphold the rule of law, and I don’t think upholding the rule of law creates a tension with the Catholic faith,” Garnett said.

Law professors interviewed called the influx of Catholic justices a complete coincidence. Should Alito be confirmed, five of the last six justices nominated by Republican presidents – stretching back to Scalia in 1986 – will have been Catholic. (Four of the last five justices nominated by Democratic presidents – stretching back to Arthur Goldberg in 1962 – have been Jewish.)

Even when John F. Kennedy became the nation’s first Roman Catholic president in 1961, the notion of a Catholic majority on the nine-member court seemed unimaginable, historians said. The court, like the country, was mostly Protestant.

The country remains mostly Protestant, about two-thirds so, according to pollsters. But a high court including Alito would have only two Protestant justices, David Souter and John Paul Stevens, the lowest number ever. The other two, Ruth Bader Ginsburg and Stephen Breyer, are Jewish.


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