Why the Catholic Majority on the Supreme Court May Be Unconstitutional

Abstract

In this essay, Professor Michael Gerhardt ponders two possible problems with how presidents may have assembled the current Catholic majority on the Supreme Court. The first is that they may have unwittingly demonstrated their agreement with social scientists who believe that neither the rule of law nor Supreme Court precedent constrain justices, and the second is that they may have violated constitutional prohibitions on religious tests for federal office. After showing how both these problems may have occurred, Gerhardt demonstrates how they were avoidable at the time the current majority was assembled and in future judicial selection.