by As Rob Vischer reports below, Christianity Today suggests that evangelicals might not be able to relate to Elena Kagan. Evangelicals Bill Clinton and Barack Obama, for whom she worked, seem to think otherwise.
In a St. Thomas law review symposium article, “Catholic and Evangelical Supreme Court Justices: A Theological Analysis“, I review the history and analyze the potential impact of evangelical (as well as Catholic) Supreme Court justices. It has been almost a century since an evangelical was appointed to the Court. Among the last evangelicals on the Court were David Brewer, the first John Marshall Harlan, and James C. McReynolds, all noted for opinions combating racist tendencies in American law (though McReynolds was personally anti-Semitic, refusing to even speak to Louis Brandeis). The dearth of evangelical appointments since the early 20th century can in part be explained by the withdrawal of the previously active evangelicals from the public square following the Scopes trial–what some church historians have called “the great reversal.” But evangelicals re-engaged with culture in the last quarter of the 20th century and there is an increasingly strong bench of thoughtful evangelical lawyers and legal academics from which a president might appoint an evangelical to the Court.
What might an evangelical bring to the Court? Evangelicals, like those from most religious groups cannot be easily pigeon-holed. There is not a clear evangelical take on the vast majority of issues that might come before the Court. But three evangelical doctrines (whether evangelicals could identify all of them by name or not) yield three different views of the world that might affect some judicial decisions. First, evangelicals believe in an objective notion of justice to which law should conform. Law should not be merely the commands of those with power. Underlying this is the evangelical doctrine of common grace (closely analogous to natural law) which stands in sharp contrast to modern positivist approaches to law. Second, evangelicals believe that society should include robust intermediate institutions, especially the family and the religious congregation. Power should be disbursed among a variety of social and political institutions. Underlying this is the evangelical doctrine of sphere-sovereignty (closely analogous to the Catholic doctrine of subsidiarity). An evangelical justice would be likely to support the decentralization of power in our federal system. Finally, evangelicals would likely be strong supporters of religious freedom. They believe that one’s religion is a matter of choice. They would have been unlikely to support Supreme Court decisions in recent decades allowing the military to prohibit the wearing of a yarmulke and allowing the federal government to prohibit Native American religious groups from smoking peyote in religious services.
It seems to me Evangelicals’ political views are presently more determined by the broader conservative political movement than those principles. I rather suspect most rank-and-file Evangelicals, at least, would support the yarmulke and peyote bans, for example. (I’ll admit I don’t know but base my view on the talk I hear about such things.) Similarly, the support for decentralization among Evangelicals appears to fit the contours of conservatism, which favors decentralization rather selectively. When it comes to federal police powers useful in fighting terrorism, or prohibitions of flag burning and late-term abortions, Evangelicals appear to follow the conservative view that favors strong central powers as long as they support their views. In regard to the natural law, it’s hard to say how this would affect Court rulings, as the inner law seems to be open to very broad interpretation.
I can think of one evangelical scholar-judge (or former judge)who would be a superb nominee to the Supreme Court, and who might make a major (and desperately needed) contribution to enhancing the integrity and substance of constitutional law. It’s not likely to happen under the current administration. But maybe the observations of Russell and others about the value of having a Protestant justice will help to increase the likelihood of this happening at some point in the future.
Bob, it seems to me that you’re talking about “neo-Calvinists,” not about “evangelicals.”
I don’t think “common grace” and “sphere sovereignty” are “evangelical doctrines.” First, they aren’t “doctrines,” they’re principles drawn from doctrines. Second, they’re Dutch Reformed in origin, not “evangelical.” Third, while some evangelicals, including many evangelicals who are political conservatives, rely heavily on these principles, not all evangelicals do so. And, even evangelicals who purport to be Kuyperian mix their Calvinism with Chicago-style neoconservatism in incoherent ways.
Personally, I appreciate what Abraham Kuyper has added to evangelical conversations about faith and culture, but I think Kuyper was quite wrong on several key points. I’m not at all sure that “common grace” is a Biblical or theologically coherent idea, for example, and in my estimation in his Stone Lectures Kuyper greatly overestimated the “Christian-ness” of the U.S. Constitution. I’m also not sure that “sphere sovereignty” adequately captures the nature of the cultural mandate. In this vein, I think Kuyper was dead wrong about government and law being necessitated only by sin.
I also think many contemporary evangelicals abuse and misuse Kuyperian thought to reach quasi-libertarian economic views and fideistic views about the Bible and science that would have made any good Dutch Calvinist wince. It’s curious that no conservative evangelicals today seem to have heard of Kuyper’s protege Dooyeweerd, whose economic thought was moderately socialist. Neo-calvinist evangelical thought about faith and science tends to be appallingly uninformed and shallow, as evidenced by such intellectual atrocities as Nancy Pearcey’s book “Total Truth.” The reality, it seems to me, is that neo-Calvinists often owe more to Milton Friedman than to Calvin.
Finally, I think neo-Calvinist evangelicals are essentially Constantinian and insufficiently critical of the use and abuse of secular power — and that this lineage traces directly back to Kuyper.
Now, if we’re talking about nominating a Wesleyan-Hauerwasian-progressive-emergent evangelical to the Court — then that would be interesting!
Obama is an evangelical? That is laughable.