by NPR’s Nina Totenberg explores whether it’s a legitimate concern that, with Justice Stevens’ (now certain) retirement, there may be no Protestants on the Supreme Court. LRE’s own Rick Garnett weighs in with this observation:
Garnett contends that the real dividing line in the country is not between Catholic and Protestant. Instead, he says, “it’s more the kind of religious versus secular divide. “So for those Protestants in America for whom their faith is important, they can look to the court and say, ‘Well, we do see representation on the court of people like us — people who take their religious faith and religious traditions seriously. True, they’re Roman Catholics … not Baptists like us, but they take their religious traditions seriously.’”
It’s probably controversial to suggest even that the secular-religious divide matters, but is Rick correct to suggest that finer distinctions beyond secular-religious are not (or should not be) of concern when it comes to Supreme Court appointments?
Rick may be correct to the extent that the secular-religious distinction may matter in cases of religious liberty (though I hope not), or in the democratic sense of “we want to see people like us making these decisions.” But does a justice’s particular religious identity matter? Perhaps it shapes the way the justices will interpret the Constitution, engage extralegal considerations, give parties with inadequate legal representation the benefit of the doubt, or consider the interests of unrepresented parties. Perhaps religiously influenced views of human fallibility or institutional authority matter. (I know there has been some scholarship on these points, including the fabulous “The Justice Who Wouldn’t Be Lutheran” by LRE’s own Marie Failinger.) Of course, even if religious identity matters, the relevance may be outweighed by the divisiveness and danger of exploring that relevance openly in a religiously diverse society.
So should we care that the Protestant Supreme Court Justice is on the verge of extinction? Are we ready to consider the religious identity of justices irrelevant, or relevant only from the perspective of crass political calculations?
This is a fascinating question that deserves the thoughtful reflections that it is beginning to elicit. But why are we asking it now? In other words, in what sense is Justice Stevens Protestant? Can anyone point to any place in which he discusses his own religious beliefs? I don’t intend in any way to question Justice Stevens’ character or beliefs, but I honestly don’t know the sense in which he is regarded as “Protestant.”
John, maybe that underscores the point that this is really just an issue of perception — i.e., should Protestant Americans be troubled that there is no one who self-identifies as Protestant on the Court, regardless of whether that self-identification translates into a particular judicial role or function. With the perception (accurate or not) that (evangelical?) Protestant values are being marginalized by our political and legal cultures, maybe the absence of Protestants on the Court is part of that perceived marginalization. Maybe that is Rick’s point — that if Protestants are concerned about this development, they should be reassured that the Catholic justices do, to varying degrees, represent the interests that underlie the (evangelical) Protestants’ concern about the religious identity of the justices. To be clear, though, at this point, I don’t even know if it’s actually a concern among Protestants. Most evangelicals I’ve talked to would gladly embrace a Court full of Scalias.
Like John, I was surprised to hear that Justice Stevens is a Protestant. It reminds me of what Gertrude Stein is supposed to have said upon hearing the news that Calvin Coolidge had died: “How can they tell?”
Do cultural Protestants count? JPS would almost certainly qualify as a WASP, no?
The “should we care?” question, it seems to me, has a couple of different dimensions. So, if the lack of Protestants on the Court suggests either that Presidents Reagan, Bush, Clinton, Bush, and / or Obama “discriminated* against Protestants-as-Protestants in their selections, I would think we should worry. And, if the lack of Protestants suggests that, due to changes in the composition of the student bodies at elite law schools, and changes in the composition of the legal profession at the highest levels, Protestants are being excluded from the “pool” from which Justices are drawn, then we should also worry. What about this, though — what if we think that (i) many of the recent judicial nominations have been by Republican presidents who, presumably, are looking for nominees who are at least skeptical about Roe v. Wade, (ii) “liberal” Protestants in the “pool” of potential Justices are not likely to be skeptical of Roe, and (iii) there have not been enough “conservative” Protestants in the “pool” from which these Republican presidents were drawing? Should we worry, then? Or, should we figure that there are a lot more Michael McConnell’s coming down the pipeline, so it will sort itself out?