Is the Catholic Majority on the Court Unconstitutional?

So says Michael Gerhardt, the Samuel Ashe Distinguished Professor in Constitutional Law at the University of North Carolina, in this essay titled Why the Catholic Majority on the Supreme Court May Be Unconstitutional.

Here's what Gerhardt says on the question of unconstitutionality:

A second, serious problem with the current Catholic majority on the Court is that the appointments which made it possible may have been unconstitutional. The selections of some if not all these justices may have violated several constitutional prohibitions – Article VI’s express prohibition of religious tests for federal office, the Fifth Amendment’s Due Process Clause, and perhaps the First Amendment’s prohibition against the establishment of religion – especially as these prohibitions would likely to be construed by the current Catholic majority of the Court.

This is a bold argument, especially the claim that Supreme Court appointments might violate the Due Process Clause (Gerhardt never mentions this point again). How does Gerhardt support his argument?

For five years, President George W. Bush and his counselors labored to solve the puzzle of how to pick justices who would remain rigidly committed to the course of decision-making they preferred. They understood that talking the talk was an insufficient basis for ensuring nominees both had and would faithfully adhere to the right kinds of ideological commitments over time. President Bush’s solution was to pick people with rock-solid moral characters, including (as we shall see) deep-rooted religious convictions.
* * *
[Discussion of how the religious test clause should be interpreted]

[R]ecall some suggestive statistics: All five of the current Catholic majority of the Court were appointed by Republican presidents determined to lower the wall of separation between church and state (and to weaken Roe). Perhaps more tellingly, President Bush’s four nominees to the Court –John Roberts twice, Harriet Miers, and Samuel Alito, Jr had at least two things in common: All four had substantial experience in the executive branch and all four had strong Christian convictions.

Stop there for a moment: There are a few difficulties for the theory that Republican Presidents have been unduly favoring Catholics, and Gerhardt doesn't grapple with any of them:

1. Anthony Kennedy is Catholic, but he was also Reagan's third choice. Robert Bork was not Catholic at the time (he has since become Catholic), and I'm pretty sure that Douglas *Ginsburg* is not Catholic.

2. Clarence Thomas was not Catholic at the time of his appointment; he was Episcopal.

3. Samuel Alito was not Bush's first choice, and Harriet Miers is not Catholic. Whatever was said about her religion, her nomination cannot demonstrate a bias towards Catholics, in particular.

In short, out of 5 Catholics on the Court, one wasn't Catholic at the time, and two others weren't the president's first choice. Outside of these happenstance events, there would be only 2 Catholics on the Court.

Back to Gerhardt:

[W]e can turn to stronger, more direct evidence of unconstitutional behavior -- the candid admissions of the President and his advisers. It is rare for a president or his counselors to speak as openly as they did about Harriet Miers, but what they all said was significant: Recall the first thing President Bush’s close counselor, Karl Rove, publicly said about Miers’ nomination was that she was an Evangelical Christian and that this fact ought to appease Christian conservatives concerned about her ideological commitments. He was quoted as mentioning this in telephone conversations with interested and concerned interest group leaders, particularly those from conservative Christian organizations which had helped to vet prospective nominees to the Court. (We can only imagine what he might have said in private, non-telephonic conversations.) The President said that he knew Harriet Miers’ “heart” and was confident that she would be the same person 20 years from now as she was now. One of Miers’ fiercest defenders, Nathan Hecht of the Texas Supreme Court, spoke publicly at the White House’s urging about Miers’ religious conversion, the strength of her current faith, and his confidence that on the all important question of Roe her faith would make it impossible for to do anything other than to vote to reverse Roe.

* * *
We know, however, that President Bush cared about Miers’ religion, because he and others in his administration told us so. We know many Republican senators supporting Chief Justice Roberts and Justice Alito repeatedly praised their “characters” and “heart” – which were loaded with meaning, standing, in all likelihood, for how these senators expected the nominees to rule once they were on the Court.

* * *

If the nominees’ religious convictions were pertinent as evidence, or proof, that they had the right kinds of moral characters or commitments in order to be nominated to the Court (and not the other way around), then it is hard to escape the conclusion that he and his staff may have acted unconstitutionally.

True, Gerhardt points to some discomforting attempts to sell Harriet Miers, at least in part, on the basis of her religious faith. But that's really all that he has here. The fact that Senators might have mentioned the "heart" or "character" of John Roberts or Samuel Alito is a rather thin reed on which to base a claim that their selection was an unconstitutional preference for religion. (Consider that Bush seems to talk this way about everybody -- he famously praised the "heart and soul" of Russian president Vladimir Putin, for example.)

The main occasion on which Republican senators praised Alito's "character," for example, was when they were reading from an American Bar Association letter:

[Senator Kyl reads:] "Fifty years ago, a Supreme Court justice wrote of the traits of character necessary to serve well on the Supreme Court. He referred to the ability to put one's passion behind one's judgment instead of in front of it and to demonstrate what he called dominating humility. It is the belief of the Standing Committee Judge Samuel Alito possesses those same qualities."

Perhaps Gerhardt has other occasions in mind, but I can't find them and he doesn't provide any citations on this point.

As for John Roberts' "heart," I mostly found Democratic Senators using this term. Senator Leahy, for example, in his introductory statement:

The American people deserve a government as good as they are, with a heart as big as theirs.

Or Senator Kohl:

You will have no constraints on the decisions you reach other than your understanding of the Constitution in your heart. That is why it is so essential that we, the democratic representatives in a democratic country, take this week to probe that understanding and that heart. . . . Just as we want and need to know much more about you, we presume that you want the country to know a lot more about what is in your mind and in your heart.

Or Chuck Shumer:

They need to assess not only the sharpness of your mind but the fullness of your heart.

Or Dick Durbin:

I hate to keep referring back to these ancient memos, but it's said that if a hammer's the only tool you have, every problem looks like a nail. And in this case, this is the only tool we have to try to find out what's going on in your mind and in your heart.

Durbin again:

We know you have the great legal mind and have proven it with the questions here. But the questions that have been asked more and more today really want to know what's in your heart. And I think those are appropriate. When you look down from the bench or read a trial transcript, do you just see plaintiffs and parties and precedents, or more?

My guess would be that if Republican Senators praised John Roberts' "heart," they were merely responding to the Democratic Senators' consistent theme throughout the Roberts hearings. Once again, Gerhardt doesn't provide any citations of any occasions where the term "heart" was used as an underhanded way of referring to Roberts' religion.

Finally, Gerhardt doesn't even attempt to explain how his theory would apply to President Clinton, both of whose nominees to the Court were Jewish. Not only that, when Clinton announced the nomination of Ruth Bader Ginsburg, he used both of the words that, according to Gerhardt's theory, indicate an unconstitutional preference for religion:

People will find, as I have, that this nominee is a person of immense character. Quite simply, what's in her record speaks volumes about what is in her heart.

I happen to think it absurd to suggest that Clinton was exhibiting an unconstitutional preference for religion here, but that is exactly what Gerhardt would have to say (if he applies his theory consistently).