I hadn’t realized, till I read Diana Butler Bass’s lament, that if Elena Kagan, the president’s nominee for the Supreme Court, is confirmed by the Senate, there will be no Protestants on the High Court. Kagan is Jewish, as is Stephen Breyer and Ruth Bader Ginsburg. The other five justices are Roman Catholics. Can you imagine going back in time and telling the Founders that the day would come when there were no Protestants on the Supreme Court? For that matter, can you imagine telling someone born 50 years ago that within their lifetime, they’d live to see a SCOTUS populated exclusively by Catholics and Jews? From Diana Butler Bass’s remarks:

I’m not lamenting the loss of representation; I don’t think that Supreme Court picks should be ruled by affirmative action. Rather, the primary qualification should be that the person knows the law, understands the law, upholds the law, and possesses a certain sort of empathy for the way that the law impacts the lives of Americans. Accordingly, anyone–a Protestant, Jew, Catholic, Muslim, Buddhist, or atheist–can be an excellent Supreme Court justice.
However, the faith in which one was raised or which one practices forms the basis of one’s worldview–the way in which a person interprets contexts and circumstances. It involves nuances regarding theology, outlook, moral choice, ethics, devotion, and community. All religious traditions provide these outlooks to their adherents, and they are present in both overt and subtle ways through our lives. I’m not lamenting the numerical absence of Protestants. Instead, I will miss the fact that there will be no one with Protestant sensibilities on the court, no one who understands the nuances of one of America’s oldest and most traditional religions–and the religion that deeply shaped American culture and law.

Butler Bass, who is herself a liberal Protestant, goes on to say that the Protestant sensibility contributed to at least three powerful ideals in US constitutional thought and jurisprudence: the primacy of individual conscience, the power of religious symbols (hence the importance of keeping them out of public neutral spaces), and the separation of church and state. She fears that losing a Protestant voice on the High Court might weaken the witness to these values on the panel.
I find the absence of Protestants on the Court (assuming Kagan’s confirmation) to be interesting from a sociological point of view, but I think Butler Bass has no reason to worry. For one thing, I cannot imagine that a liberal justice like Kagan would rule in a way of which Butler Bass would disapprove on these key issues. On these questions, the liberal Protestant mind is one with the liberal Jewish and liberal Catholic mind. More broadly, is it really meaningful to draw these religious distinctions when it comes to jurisprudence? Antonin Scalia and Sonia Sotomayor are both Catholics, but they are very different in their legal approach. Scalia is a very conservative Catholic; I think it’s safe to presume that Sotomayor is a liberal Catholic, but I could be wrong about that. Would Butler Bass rather have a conservative Protestant like Michael McConnell on the High Court, for the sake of having a Protestant there, or would she prefer a liberal Jew like Kagan? I’m quite sure she would prefer a Kagan, given that McConnell has said he thinks the Court has gone too far in the separation side of church-state jurisprudence. Similarly, I think it’s safe to say that Evangelicals would much rather have conservative Catholics like Scalia, Roberts, Alito and Thomas on the Court than a liberal Protestant, and that conservative Catholics see no allies in Catholics Sotomayor and Kennedy, and would rather see a Protestant like McConnell.

The point is that the philosophical divide in contemporary American life is not between religions, but among people within different religions. Sociologist James Davison Hunter has been trying to explain this to folks for 20 years now. The disappearance of Protestants on the Supreme Court is a fascinating and important sociological and cultural marker, but I can’t see that it has much at all to do with the way the Court will rule. Am I wrong?
(BTW, posting will be light today — I’m home sick with a sinus infection.)
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