by In 1990, when I resigned as General Counsel to the New York City Commission on Human Rights to join the Fordham Law School faculty, I was the only White member of the of the executive staff. I urged the Commissioner to try to find a qualified White person, if available, to replace me. He rejected that idea, presumably because Whites are the dominant racial group and not in need of any representation in the leadership of a government agency. Today, we face a similar question with regard to whether there should be at least one Protestant Supreme Court Justice. Protestants account for more than half of Americans today and historically have been our dominant religious culture.
Unfortunately, our simplistic understanding of rule of law tends to make it difficult to have a nuanced or coherent conversation on this topic. The dominant approach is one of neutrality. It assumes that a judge’s identity should not and does not make any difference. The opposite extreme is an essentialist one that identity is somehow determinative. Some commentators have conflated these two conflicting views. They argue that so long as a judge does not take his or her identity into account we should take it into account in order to obtain the representation of minority or under-represented perspectives. But if identity is irrelevant, then why bother with diversity? What is missing from the conversation is a middle view.
This view can be found in the leading scholarship on organizational behavior. As I discuss in my article White Lawyering, these scholars find that neutrality with regard to identity is a fiction. Each person in their own individual way manages those identities that are important to them or important to how others perceive them. Organizations that ignore significant identities are less productive and profitable than those that seek to achieve organizational goals while openly considering how identity influences the workplace. With regard to rule of law, this would mean discarding neutrality. Instead, we would seek the goal of equal justice under law by starting with the acknowledgement that we actually have different experiences of our own identities and of how others perceive us at the same time that we share the goal of rule of law.
So how should we approach the question of whether there should be a Protestant Supreme Court Justice? The middle view would reject both extremes — either the view that being Protestant is irrelevant or that it is determinative. Of course, many Protestant identities exist and every Protestant is an individual. The middle view would ask whether the majority Protestant identity is significant to people either in how they live their lives or how others perceive them. If either is true, then the task of pursuing rule of law — a task that requires understanding, and accounting for, identity as we work across differences to promote our shared goal of equal justice — suggests that Protestants have a seat at the table.
Russell — but what kind of “Protestant?” Liberal Episcopalian or Fundamentalist Southern Baptist? Post-liberal Anabaptist Methodist or Dutch Reformed neo-Calvinist? Anglo-Catholic High Church Anglican or separatist Darbyite Brethren? Reconstructionist-theonomist high Calvinist or progressively evangelical Latino Pentecostal?
Jurisprudentially, what Russell says here seems sensible to me. And I admit that in a country that was historically to a large extent built by and composed of Protestants, it would seem a little odd if not one of the nine Justices were Protestant. (Although I admit that part of me thinks there would be something not only remarkable but even in one sense admirable about a Court composed entirely of Catholics and Jews. It would be a surprising indication of progress that two groups that have sometimes been marginalized in the past could achieve such acceptance.)
The main question for me, though, is whether the label “Protestant” any longer has enough content as a descriptive matter, either culturally or theologically, to be very useful for these purposes. Historically, yes: a book like H. Richard Niebuhr’s “The Kingdom of God in America” shows, I think, how important Protestant thinking has been in shaping our constitutional and political order. But today? The label “Protestant” might be applied to Episcopalians, to evangelicals, to so-called fundamentalists and biblical literalist six-day creationists, to pentecostalists– maybe Unitarians?
I speak as an outsider, and I raise this as a question, not an assertion. But is there really much at all in common that makes it useful any longer to think of these disparate groups as having any identity, or even “family resemblances,” that could be represented by a Justice?
David & Steve — I think you raise a key question. Does being Protestant mean anything any more? My own take is that while great diversity exists within American Protestantism the identity “Protestant” still matters. From my own experience as a Jew, great diversity — and even antagonism — exists within the Jewish community. Nonetheless, a Jewish identity persists and influences how Jews understand the significance of having a Jewish Supreme Court Justice, whatever the Justice’s connection to Judaism. My intuition is that Protestants have a different view for a reason similar to the response White people tend to have to issues of race. When you are part of the dominant culture, your first reaction is to understand your culture as “normal” and not a separate identity. This perception would tend to overstate the differences within the identity and understate the similarities in how Protestants perceive themselves and others perceive them.
Russ, Your idea is interesting, but it brings up a more troubling question for me, why is this discussion even necessary. If I were ever to publicly announce I would only hire a white man or woman, or a person of color (pick one), or a specific ethnic or religious background, I would be sued. I would also be pilloried as some kind of bigot by most newspapers and most politicians. Yet if I were to say it as a requirement in hiring a Supreme Court Justice, it is OK.
I am not so naive as to think there is no bias in our decision making. But the goal in business today is to hire the best qualified for what you can afford. And a smart business owner understands that diversity is good. It exposes everyone to new ideas and perspectives.
However if we are to make our new employee, aka Supreme Court Justice, pass a litmus test, why not take one from Starship Troopers (the book, not the bad movie), that to serve in government you must have first served in the military. That way they have a better chance of understanding what Duty Honor Country and To Serve means.
I know the idea is farfetched, but no more farfetched than saying our new employee must be_________(fill in the blank).
Actually, I don’t think Stephen’s idea is so far-fetched. I think it would be a good idea to have at least one or two Justices who have served in the military. That might be a more salient and relevant characteristic these days than “Protestant.”
Interesting discussion, and I agree with what Steve gets at in the last comment: assuming that a judge’s life history, characteristics, and affiliations matter to the kind of judge a person would be, is “Protestant” among the most influential affiliations/characteristics for many (any?) potential nominees? If you made a list of Justice Stevens’ defining characteristics, beliefs, life experiences, etc., would “Protestant” be in the top 10? For Russ’s argument to hold true, I think he would have to amend it slightly to emphasize the importance of having a Sup Ct Justice for whom the Protestant faith is an important and defining commitment. That narrowing would, of course, make the argument even more controversial.
I have a slightly different take. The most important question is whether religious identity makes a difference for our society, not for the individual. Neither Jewish Justice, for example, is known to consider their faith to be “an important and defining commitment.” The organization research concludes that significant personal identities influence organizational behavior, even though we all manage our identities in individual ways (e.g., including whether we have a stronger or weaker faith commitment). As to Stephen and Steven, I do think the point regarding the military is an excellent one but again, the question here is the importance of religion. As I mentioned before, I suspect we have a tendency to think of Protestantism, like White racial identity, as “normal” or background, and therefore not a recognizable identity (or an identity that it so “diverse” that it is incapable of definition). I can say that as a religious minority — a Jew — I have always experienced the salience of the majority perspective on religion in America. While I would agree that Protestant, Catholic, or Jewish (as opposed to Muslim or Atheist) identity is less salient today than it was before World War II, I believe that the high profile religion cases that continue to pervade the courts and the media indicate that religion remains a salient factor in American life.
Fair point, but doesn’t that make the argument a little more awkward? We’re not saying, “Religious identity matters to a judge’s decision-making, so we need to have representation for Protestants.” Instead, we’re saying, “Religious identity may not matter for most of these judges, but because the public thinks it will matter, we need to have representation for Protestants.” This latter argument seems more problematic to the extent it exacerbates the public’s tendency to see the Sup Ct’s work less as law and more as politics.
Rob — Depends on what you mean by representation. I associate the representation argument with the essentialist view for quotas that I reject. Rather, I am arguing for a middle view that acknowledges that identity makes a difference while acknowledging that everyone is an individual. Accordingly, I would not think that any Judge would decide any case in any particular because he or she is Protestant (or Catholic or Jewish or Muslim). But if religious identity matters, I would say that the court would benefit from having at least one member with the experience of being a Protestant or being perceived as a Protestant. This middle view is only “politics” from the other extreme perspective — the idea that such a thing as “identity free” judging exists. Indeed, the business literature on identity is “apolitical” in that it seeks to maximize the goals of business organizations, such as profits, productivity, and job satisfaction. The corollary here, as I explain further in my article, would be to rethink how best to achieve the legal system’s goal of equal justice under law given that identity — how we perceive ourselves and how others perceive us — is a reality.
Russ — I think the question of Jewish identity is very different because of the unifying experience of persecution, in the Shoah of course but also in America.
Also, I think it’s different because of the “fundamentalist-modernist” controversy that split American Protestantism. Yes, there are wide variations among Jews in America, but it seems to me that the “center” is more robust — that the Jewish groups at the far fringes (whether ultra-conservative Hasidim or the communist party members of the ’50′s) remain minor voices.
Since the fundamentalist-modernist controversy, there simply has been NO theological-political center to speak of in Protestantism in America. There have been evangelical-fundamentalists on one side, and mainline-liberals on the other. Thankfully, that has been rapidly changing over the past ten years or so, but nevertheless, a wide chasm often remains.
Following Aquinas, my question here would be: “What is the point of trying to ensure that membership in a particular group (in this case, membership on the SCOTUS) reflects either (a) a similarity, or (b) a diversity of backgrounds and/or perspectives?” Aquinas says: whenever we find a group whose members are ordered to each other, that group must necessarily be ordered to some end or final cause (De Veritate, Q. 5, a. 3; see also In XII Metaph., lec. 12, 2630). So before we can say much about the goodness (or badness) of any “similarity” or “diversity” of background/perspective on the SCOTUS, we need to ask: what is the aim, end, goal, purpose of the group-activity performed by members of the SCOTUS? The sort of similarity or diversity that is desirable, will depend on the sort of group (and the aim of the group) about which we are speaking: if the group is an orchestra, we’ll want a certain kind of diversity (e.g., we’ll want orchestra members who are trained to play different instruments), but we will not want diversity of just any kind, or diversity just for the sake of diversity itself (thus it would be absurd to say that we need more non-musicians in the orchestra, just for the sake of respecting diversity). Similarly, if the group is the SCOTUS, we’ll want a certain kind of diversity, but we will not want diversity of just any kind, or diversity just for the sake of diversity itself. It’s obvious that a certain kind of “similarity of background/perspective” is desirable when it comes to membership on the SCOTUS (e.g., all members on the SCOTUS should have at least some legal training or background). But it’s not so obvious what sort of “diversity” is desirable. Regardless of how one ultimately answers the question about what sort of “diversity” is desirable, it seems to me that any answer will depend on some position (whether explicit or not) regarding the aim, end, or purpose of the group-activity performed by members of the SCOTUS. For this reason, I think that Russ’s “middle view” may need a bit more. It’s true enough that the self-understanding of those who are subject to law is relevant to our thinking about who (what sort of person) ought to become a Supreme Court Justice; after all, it’s generally not a good thing if those who are subject to the law regard the law as something externally imposed upon them, as if from an entirely alien source. On the other hand, I think that a further argument is needed if one wants to support the claim that a distinctively Protestant self-understanding (whatever that might mean) is relevant. Also, I don’t necessarily disagree with the view that the Supreme Court would benefit from having at least one member who is (or who is identified as being) a Protestant. But it’s not clear (to me, at least) what Russ’s reasons are for holding this view. Is it that:
1) there is something distinctive about the ‘Protestant’ worldview that should be reflected in Supreme Court decision-making?
or
2) a large number of American Protestants are subject to the law, and it’s not a good thing if a large sector of the population must regard the law (at its highest level) as being decided by someone ‘other’ than themselves?
or
3) or perhaps some other reason?
If (1), then what is the distinctive ‘Protestant’ contribution/insight that ought to be represented in Supreme Court decision-making?; and if (2), then is it really true (as an empirical fact) that American Protestants generally feel that the law is being decided (at the highest level) by someone ‘other’ than themselves?
In light of (1) and (2), here’s a possible irony: it’s often said that (1) what is distinctive of much American Protestantism is the view that religion is a private matter (and thus what judges and politicians do, as public officials, can have no real effect (for good or ill) on the internalized, private matter that is religion; but if that’s the case, then (2) American Protestants should not feel that what judges do (as public officials) is at all relevant (for better or worse) to the internalized, private matter that is religion (i.e., they should not feel that the law is being decided by someone other than themselves, since the very notion of ‘religious sameness-or-otherness’ altogether vanishes in the public square, for religion as such is not operative in the public square).
In short, I’m wondering whether Russ’s concern about how Protestants view themselves (or ought to view themselves) in the public sphere, actually stems from a distinctively Jewish/Catholic sensibility, and not from a Protestant one….
Now, Russ, what’s a nice Jewish boy like you doing, calling for such a thing. They had their turn, about 200 years worth. (Just kidding, of course.)
Steve and David mention the diversity of modern Protestants, and the difficulty in finding anything in particular that a Protestant might bring to the Court. The diversity of Protestants, of course, is nothing new. At the time of the Reformation, Protestants ranged from Calvinists wanted to run everything to Anabaptists who rejected power and just wanted to be left along. The one thing that might have been said about all Protestants at the time of the Reformation was that they were protesting–protesting a lot about the Catholic Church, in particular protesting the authoritarian nature of the Catholic Church. (One characteristic of Justice Stevens that might be Protestant is that he often resisted claims of authority, from Bill Clinton’s claim that he could ignore sexual assault suits to George W. Bush’s claim that he could do what he wanted to do to enemy combatants.) It is ironic that the one thing the religious folks who have run the Supreme Court (and much of the country) for 200 years might bring to the Court is their anti-authoritarian heritage.
Even though the question is moot for the current nomination, it remains a live issue so I wanted to follow up on Michael’s point. Here’s my take: the work of the Court is equal justice under law and doing that well requires us to manage identity, rather than falsely assume neutrality, in order to best realize that goal. I think that would fit within your account of Aquinas — and indeed I personally identify with the natural law tradition although I acknowledge that I have much to learn.
I think that Russ and I are ‘on the same page’ in this discussion. A big question that continually looms in the background here (but that is rarely addressed adequately) is the question of how we can do ‘justice under law’ in the light of the ends, aims, goals that are proper to our system of law. It’s often assumed (wrongly, I think) that there really is no aim, end, goal of our legal system other than to allow individuals to pursue their *own* aims, ends, goals without ‘interference’ from the state. The view that the law has no substantive ends of its own, it seems, is an extension of the view (a wrong view, in my opinion) that we can be entirely ‘value-neutral’, or that ‘identity’ (including religious identity) does not matter….