GUESTVIEW: Our American heritage: the Protestant legacy on the Supreme Court

By Guest Contributor
May 28, 2010
supreme court

The U.S. Supreme Court, 23 June 2003/Brendan McDermid

The following is a guest contribution. Reuters is not responsible for the content and the views expressed are the authors’ alone. Elizabeth E. Evans is a U.S. freelance journalist living in Glenmoore, PA who writes about religion.

By Elizabeth E. Evans

It is hard to evaluate the significance of history while it is being written.  But in considering whether it matters that there possibly will be no Protestant on the Supreme Court when it convenes next fall, one thing is clear – it’s a fascinating time to be a student of Christian practice in America.

Does the lack of Protestants of any stripe on the Court truly matter to anyone save those who might feel upset that their denomination is left out?  Arguably not.  In a time of increasing ethnic and religious pluralism, and with tectonic changes going on within Protestantism and Catholicism in the United States, it is possible that the old categories simply don’t work anymore.

Writing for the Huffington Post last month, Chicago University law professor Geoffrey Stone brought a bracing realism to the question of religious identity and the Court.  He pointed out that of the 112 Supreme Court justices who have served since it was founded, 83% percent have been Protestant, 11% percent Catholic, and 6% percent Jewish. However, he continues: “the U.S. population today is roughly 78% Christian, 51% Protestant, 24% Catholic, 16% non-religious, 2% Mormon, 2% Jewish, and 2% Muslim, Buddhist and Hindu combined.”

To achieve a truly representative Court, according to these standards, “the next 69 justices should consist of 32 Catholics, 29 non-religious individuals, four Mormons, a total of four Muslims, Buddhists and Hindus, and no Protestants or Jews,” wrote Stone.  Considered in that light, it would be almost impossible for any president to make the “right” choice.

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But isn’t picking a potential justice all about the law, anyway?  Mostly, argued longtime observer and religious historian Martin Marty in a piece posted on the University of Chicago Divinity School website.

While some candidates steeped in a religious culture might be more sensitive to “nuances” in a case, others might use those “nuances” as weapons, asserted Marty.  “Overall, it might be best if the public said, ‘We are reassured you justices are religious; just don’t ‘use’ that religion too much.’”

(U.S. Supreme Court justices sit for official picture on September 29, 2009. They are (1st row, L-R) Anthony M. Kennedy, John Paul Stevens, John Roberts,  Antonin Scalia, Clarence Thomas (2nd row, L-R) Samuel Alito, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor/Jim Young)

“It’s interesting that it’s evolved this way,” said Rodger Van Allen, a professor of theology and religious studies at Villanova University. “To have no one from a Protestant background doesn’t seem quite right – if there were no Catholics or Jews it would be noted.”  Given the political and societal sensitivities involved, he said, he’d be surprised if the next nominee wasn’t of a Protestant background.

Asked the same question, Princeton Theological Seminary theology professor Ellen Charry responded: “I don’t see this as a problem for a variety of reasons.  It seems like a throwback to a time when we in the United States thought we were living under a benign, secularized Protestantism which we called ‘civil religion.’ That ethos no longer obtains.”

In addition, both Catholics and Protestants in an increasingly pluralistic America are themselves very varied in beliefs, said Charry.  What is most important is that justices are committed to obeying the rule of law.  “The person’s credentials, not their religion, should be the important issue,” she said. “To say that there should be a Protestant on the Court privileges Protestantism in a way that is no longer appropriate.”

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The fact that his or her faith affiliation no longer impedes a candidate from advancing to the Court means the nation has taken a step forward, said Van Allen.  “In some ways this is a new era of openness, a feeling that we are all in this together.  A lot of anti-Catholicism and anti-Semitism has passed away. We should be grateful.”

(Photo: U.S. President Barack Obama applauds next to his nominee for Supreme Court Justice, Solicitor General Elena Kagan, in the East Room at the White House in Washington May 10, 2010. REUTERS/Jim Young)

Interestingly, the fact that there is an ongoing Jewish presence on the Court hasn’t gotten quite as much press.  Elena Kagan, President Barack Obama’s nominee to replace the last Protestant on the bench (retiring Justice John Paul Stevens), is Jewish. Asked to speculate on this phenomenon, Van Allen said that Jews in America have preserved their strong identity while being vigorous players in society:  “They are very smart, they work hard, they achieve in every field.  It isn’t surprising that they would emerge as leaders. We are all the richer for it.”

While Protestantism (by a hair) remains the dominant faith in America, as Charry pointed out, it is in itself extremely diverse.  As mainline Protestant denominations wane, there is a vigorous debate going on within evangelical Protestantism about how to be politically engaged – even as there is internal disagreement about theology, social justice and even what it means to be called an “evangelical.”

Although Catholics manage to “hang together with a little more apparent unity,” there is also a lot of diversity within American Catholicism, said Van Allen.

The educational and philosophical forces that mold Americans may be as important as their religion, suggested Charry.  “From my standpoint…the American experience has a profound shaping and reshaping effect on every group that has come here,” she said.  The importance of separating church from state in the United States “has profoundly affected religious communities. (They) need to understand one another, listen to one another, and learn from one another. “

All in all, it’s impossible to generalize about American religion and religious affiliation, as changes in worship, religious expression and belief reshape the American landscape.  “Flux is everywhere,” Charry said.  In a time at which so much about American religious culture is up for grabs, it is indeed tough to weigh whether it matters  if a Protestant wears the robes of a Supreme Court justice or not.

CottonMatherBut it is William_Pennpossible  that centuries of emphasis on individual freedom of conscience and respect for diverse opinions and beliefs has molded each justice so that they bring a temperament to the Court that is idiosyncratically American.  If that is the case, they reflect the Puritan and Quaker theological philosophies that so shaped America in the early years, and have continued to thread the fabric of American society since then.

(Portraits: Puritan Cotton Mather (L) and Quaker William Penn (R)

In that sense, the legacy of Protestantism may indeed continue – even without a Protestant on the Court.

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