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No Protestants: A New Order in the Supreme Court

3 years ago
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Six Catholics and three Jews occupying all nine seats on the Supreme Court? It sounds like the start of a bad joke, but in fact it could be the end of what was once an unquestioned Protestant dominance of the high court, if President Barack Obama's pick to replace retiring Justice John Paul Stevens is confirmed.

Stevens is not only the liberal leader on the bench but also the lone Protestant, and with Obama's nomination Monday of 50-year-old Elena Kagan, the current solicitor general of the United States, to replace him, Stevens could be the last Protestant for some time.

Kagan identifies as a Conservative Jew -- the stream of Judaism between the more liberal Reform wing and the more traditional Orthodox -- though her level of observance is a matter of some conjecture. She had her bat mitzvah at 13 with a rabbi from the modern Orthodox tradition, and in her remarks with President Obama on Monday she said she prays every day that she can live up to the example of her parents, a lawyer and teacher, both now dead.

The prospect of her nomination had generally been welcomed by Jewish groups. They see her views as "in line with the Jewish community consensus that advocates more sensitivity for religious rights in schools and workplaces and at the same time insists on the strong separation of religion and state," according to a recent analysis in The Forward, a leading Jewish periodical.

But the real question is: Does Kagan's religion matter? Or does the faith of any justice matter?

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Clearly, the prospect of a Supreme Court that is two-thirds Catholic and one-third Jewish and without a single Protestant represents a watershed in American life.

For the first two generations of American history, until the appointment of the first Catholic justice, Roger Taney, in 1836, the high court had been the exclusive domain of Protestants, and for 30 years after Taney the court was again all-Protestant. The first Jewish justice, Louis Brandeis, was confirmed in 1916, and that inaugurated an era in which there was generally a "Catholic" seat and a "Jewish" seat on the high court.

Prejudices remained; in 1924 one justice, James C. McReynolds, refused to sit next to Brandeis for the court's annual official portrait because of Brandeis' faith, so there is no photo of the justices from that year. But even as such virulent bias eased, there was little urgency to increase the number of non-Protestant justices.

In recent years, however, Republican presidents have chosen a number of Catholic conservatives for the high court, and last year Obama used his first Supreme Court pick on Justice Sonia Sotomayor, a Catholic who was also -- and more significantly -- the first Hispanic justice and just the third woman.

Historical perspective is important. Christians, and Protestants in particular, continue to have an outsize share of the Supreme Court's legacy, even if Protestants will be absent from the court's next official photograph.

Law professor Geoffrey R. Stone of the University of Chicago has raised questions as to whether there are too many Catholics on the court, given what he sees as their conservative track record on abortion rulings. But Stone has also calculated that in order to bring total Christian representation down to the percentage of Christians in the current population, "none of the next 22 justices should be Christian." He added that none of the next 69 should be Protestant. (Jews are so overrepresented, he said, that none of the next 139 justices should be of that faith if we want to choose the high court according to a system of proportional representation.)

The justices themselves would say religion doesn't matter.

"No one regarded Ginsburg and Breyer as filling a Jewish seat," Justice Ruth Bader Ginsburg said of herself and Stephen G. Breyer, the other sitting Jewish justice, in a 2003 speech at the Brandeis School of Law in Louisville, Ky. "Both of us take pride in and draw strength from our heritage, but our religion simply was not relevant to President Clinton's appointment."

Antonin Scalia, one of the more conservative and devoutly Catholic members of the bench, has been even more trenchant -- characteristically -- in his dismissal of a religious influence.

"There is no such thing as a 'Catholic judge.' The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge," Scalia said in an address at Villanova Law School in 2007. "Just as there is no 'Catholic' way to cook a hamburger, I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic."

In fact, Scalia was so incensed at Professor Stone's questions as to whether there were too many Catholics on the court that he has vowed never to appear at the University of Chicago until Stone is gone.

The general public appears to agree that religion is not terribly important, with a Gallup Poll showing that overwhelming majorities say they don't care if the next nominee is a Protestant, and only 7 percent saying a Protestant nominee would be essential."

Several factors explain the relative decrease in concern over a justice's religion.

One is that representation on the Supreme Court has long been a marker of assimilation into American life by immigrant or other once-marginalized groups, such as African-Americans. Indeed, a justice's race, ethnicity or gender is likely to be of greater political and social import in the near future given that there have still been just two African-American justices, one Hispanic, and three women -- four, if Kagan is confirmed.

If Jews continue to be reliably liberal-to-moderate, Catholics have certainly come to reflect American society, as Catholics are divided politically as much as the rest of the country. The quest to figure out what a Catholic justice would bring to his or her decisions would likely not start with the nominee's Catholicism.

At the same time that religions like Catholicism and Judaism were becoming integrated into mainstream American society, "establishment" denominations like mainline Protestantism were declining in numbers and influence, or splitting internally over issues like gay rights.

As Martin E. Marty, a Lutheran and a preeminent scholar of American religious history, recently wrote, "pity the president who thinks he or she can assure representation of Protestantism simply by appointing a member of a Protestant church."

"Many Protestant churches are culturally so settled in that they wouldn't know what or how to protest. Many other Protestant people are so unsettled that they will lobby for their faction," he wrote. "Can the one who makes an appointment satisfy the people called Protestant? Most are, top to bottom, at odds with each other."

Moreover, evangelical Christians -- who represent the most visible and coherent religious and Protestant bloc in American life today -- have channeled most of their energies and resources into political activism. That has brought evangelicals great influence since their re-emergence into political life in the 1970s, but it has not yet produced top-flight jurists who could overcome concerns about their politics.

Whether Kagan will satisfy the senators who must confirm her is of course a matter of great speculation, and will continue to be so over the summer. Whether she will keep American Jews happy may be a question as well. Her views supporting strong executive powers, especially as regards terror suspects, have raised concerns among Jewish groups that tend to represent the more liberal views of most American Jews.

And then there is the story of her bat mitzvah (also called a "bas mitzvah"), in which she clashed with her rabbi.

"She had strong opinions about what a bas mitzvah should be like, which didn't parallel the wishes of the rabbi," Bill J. Lubic, who was a law partner with Kagan's father for 20 years, told The New York Times.

But it ended well. "She negotiated with the rabbi and came to a conclusion that satisfied everybody," Lubic said.

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