Protestants vanish from high court?

With March Madness behind us, reporters have moved on to other bracket-like stories, including the next Supreme Court nominee. As Supreme Court Justice John Paul Stevens openly discusses his upcoming retirement, reporters play guessing games about candidates in the running.

We discussed a few weeks ago that when Stevens retires, there will be no Protestant on the high court. NPR’s Nina Totenberg has picked up the story, outlining the court’s potential future.

And what is particularly interesting, as attention focuses on a potential replacement for Justice Stevens, is that the two leading contenders to succeed him, Solicitor General Elena Kagan and federal Judge Merrick Garland, are both Jewish, while another often mentioned name, Michigan’s Gov. Jennifer Granholm, is Catholic. Yes, there are some Protestants in the mix, too, but it remains a distinct possibility that when the dust settles and a new justice takes his or her seat, there will be no Protestants on the high court.

Does it matter? Should it matter? Should it be discussed in polite society?

Are we really concerned most about whether it’s an appropriate topic for polite society? How about whether religion will impact the nominee’s decision on a court matter.

Perhaps Dalia Lithwick was the first to write on a Protestant-absence on the court for Slate back in December. Like the Washington Post, Lithwick took a fairly opinionated spin with little reporting but raised some interesting questions.

Professor Michael Dorf at Cornell Law School has argued, I think persuasively, that it’s not so much the justices’ individual religions that matters, but whether they are, “Catholic” or “Protestant” with regard to their respect for sources, texts, and any intervening precedent. Borrowing from a framework laid out by University of Texas law professor Sanford Levinson, this approach suggests that Catholics see the Word of God as mediated by Church teachings. Whereas Protestantism “emerged after the printing press had come to Europe, and it encouraged the faithful to read and make sense of the Gospels for themselves, without the requirement of obedience to Rome.”

I suppose this is all theory, but it’s certainly interesting to consider. But back to the NPR story, Totenberg does an excellent job of setting the story in its appropriate context, giving some historical background as well as using compelling graphs to illustrate the court’s shift over the years. She rounds up a variety of sources on the subject, raising important and interesting ideas.

[I]n the past quarter-century, Republican Protestant presidents have appointed conservative Catholics at least in part because of their reliably conservative judicial views.

The children of immigrants, second-generation Catholics, as Jews did before them, have embraced the law as a profession to succeed in. But as Richard Garnett of Notre Dame law school observes, “A whole lot of ethnic Catholics switched sides politically because of the pro-life issue, and so it turned out that for Republican presidents of the ’80s, ’90s and into the Bush administration, the people who were in the pool, who were available for nomination, and who shared the views of those presidents on some of these important questions, were people who are Roman Catholic.”

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.’”

Read the whole story because the reporter offers several more ideas to chew on.

However, allow me to be a bit picky for a few paragraphs. I would think that the idea that religion might influence your views on abortion should be much higher in the story, as well as whether religion could influence other decisions, like religious freedom.

It was odd that she identified Mark Scarberry’s religion but did not identify the religion of other “experts.” Does that fact that he’s an evangelical Protestant add to what he’s trying to say? If anything, Mark Noll could have been identified as an evangelical as he is fairly prominent for his scandalous book. I also wondered why she did not name the Bush nominee at the end of the story.

If she had more time and space, it would be nice to include some more quotes from previous or current Supreme Court justices. For instance, Sandra Day O’Connor told the Associated Press yesterday that the court should have more diversity.

During discussions with students and journalists, she also recommended more diversity on the court, saying more women, non-judges and a Protestant would help.

“I think that religion should not be the basis for an appointment, but if that were the case, one would expect somewhere in the nine to see a Protestant or two,” she said. “You’ll probably see someone eventually.”

Getting down to details, I wonder if the story could be more specific about Stevens’ religious affiliation as “Protestant” since there are so many different variations on that theme. The story could have also provided a percentage of just how many Protestants there are in the country to show what actual representation might look like, if that were the priority.

My scrutiny has come to an end, and I do think the story is worth your time. After reporters have considered the idea of a Protestant-absent court for a few months, it’s good to see such an in-depth, reported piece.

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  • Julia

    In law school I remember hearing discussion that Jews and Catholics have an affinity for the law since both have a long history of deference to commentary on Scripture – i.e. Tradition with a capital “T”. A professor likened developing Tradition to developing case law. On the other hand, the concept of case law must be taught to Protestants who have a greater affinity for the black letter law.

    Just saying what I heard at BS sessions at U of Illinois Law School in the ’80s. Interesting.

  • Jerry

    reliably conservative judicial views.

    One of the sad features of the current situation is that respect for the law has been replaced by desire to ensure a political outcome to the point that we now have a right-wing judicial activist court which is overturning many precedents, some of very long duration.

    Lost in this politicization has been consideration of the importance of how someone interprets the constitution as explicated http://www.usconstitution.net/consttop_intr.html instead assuming that there is only a liberal interpretation or a conservative one.

    Another mistake is to try to divide a judge on the basis of secular outlook versus religious outlook assuming that the difference is black/white.

    So I wish we had a situation where people could respect that the court is made up of serious constitutional scholars who to the best of their ability put the constitution ahead of their own personal preferences including religious preferences.

    Of course, I don’t expect that someone’s personal beliefs will be ignored but that they are secondary after their legal judgment.

  • Deacon John M. Bresnahan

    Frankly, as a layperson regarding the law, I think that sometimes the business of legal precedent is overblown. I can still remember when the Roe v.Wade abortion decision was made, if you looked carefully in the “back pages” of the media, many liberal constitutional scholars were aghast at the decision constitutionally speaking. But, of course, after the decision they gave it full support because they were in favor of legalized abortion–and it was now precedent. Which to my mind –and in the opinion of a lot of others–completely discredits both the Roe decision and the rigid use of precedent by courts.
    After so many decades of liberal courts creating spurious precedents, it is only proper that a Supreme Court that respects the actual words of the Constitution deep-sixing some precedents. And an even worse precedent than Roe is the Supreme Court decision on eminent domain. In that decision the dividing line was basically the conservative, strict interpreters vs. the liberal pro-government anything goes interpreters on the Court. In that decision the court ruled that the government could throw you off your land and turn your land over to another private party.
    But the media gave this decision very little coverage. I suspect because some polls showed upwards of 90% of voters opposed this radical liberal decision that gives governments the power to kick people off their homesteads–their castles–and turn the land over to NOT a public use, but to political hacks and cronies of the politicians.
    In otherwords the liberal legal precedent is in support of legalized plunder of the average homeowner by big government to enrich the friends and cronies of the politicians. The position of the conservatives on the court was on behalf of the “little guy” and his precious acre and the real U.S. Constitution.

  • str

    Does it matter? Should it matter?

    Last time I checked Stevens wasn’t appointed to the bench as a representative of Protestantism – so why should it matter that upon his retirement the court might be without a Protestant … for a while.

    In the light of people actually considering such quotas valid, there should rather be a non-Protestant be appointed (and a non-Jew if Mrs Bader-Ginsburg retires etc.)

    Are we really concerned most about whether it’s an appropriate topic for polite society? How about whether religion will impact the nominee’s decision on a court matter.

    Professor Michael Dorf at Cornell Law School has argued, I think persuasively, that it’s not so much the justices’ individual religions that matters, but whether they are, “Catholic” or “Protestant” with regard to their respect for sources, texts, and any intervening precedent. Borrowing from a framework laid out by University of Texas law professor Sanford Levinson, this approach suggests that Catholics see the Word of God as mediated by Church teachings. Whereas Protestantism “emerged after the printing press had come to Europe, and it encouraged the faithful to read and make sense of the Gospels for themselves, without the requirement of obedience to Rome.”

    I don’t think this is all theory but all hogwash since the actual differences between judges and their judifical philosophies – originalists of all stripes, proponents of a living/evolving constitution (and those simply applying rule by judicial fiat) are hardly linked to the different epistomologies and ways of exegesis of Catholic or Protestant theology.

    If anything, a philosophy akin to a direct approach to scripture (if we take that Protestant claim at face value for argument’s sake) it is the Catholic judges like Scalia or Thomas that seem to go directly to the text of the constitution whereas others more clearly highlight precedent as binding.

    However, there might be a parallel if we take into account the way (especially liberal) Protestants often apply in exegesis – the text is (more or less) sacrosant but one can do what one likes with it in interpretation, no matter how contrived it is.

  • str

    During discussions with students and journalists, she also recommended more diversity on the court, saying more women, non-judges and a Protestant would help.

    Did she actually propose putting non-judges to a court? How absurd can one get?

  • str

    One of the sad features of the current situation is that respect for the law has been replaced by desire to ensure a political outcome to the point that we now have a right-wing judicial activist court which is overturning many precedents, some of very long duration.

    You must be joking. The court does not even have a “right-wing” majority. It has repeatedly told administrations, both Bush and Obama, to back off in some regards.

    And if the “precedents” are themselves ill-founded acts of judicial activism, no matter how long ago, I’ll say good riddance. Judges should stick to the law and the constitution.

  • str

    Jerry,

    reading now your entire posting, I am not so sure what you mean. I wrote what I did above thinking that you accused the court and its appointments of such a thinking.

    Other parts of your posting suggest that you criticized reporting on and discussion about the court. If so, I am with you there!

  • str

    Dear Deacon,

    strange that the overall bent of these precedents defer to the executive branch on matters such as eminent domain but are quick to claim supremacy over the legislative branch on matters such as abortion.

  • Jerry

    You must be joking. The court does not even have a “right-wing” majority.

    This is not the place for a discussion about why I think the court has swung way to the right wing based on their decisions including long time precedents they’ve overturned, but I will say that I don’t think religion is part of that.

  • http://blogs.chron.com/believeitornot Kate Shellnutt

    NPR might have used Protestant because Stevens hasn’t identified his religion beyond that.

    I haven’t been able to find Steven’s specific denomination or branch of Protestantism. Historically, others have identified as Methodist, Episcopalian, Lutheran, etc., so I assume he’s outside of those big three?

  • Jon in the Nati

    NPR might have used Protestant because Stevens hasn’t identified his religion beyond that.

    That would be my understanding; I have never seen Stevens identified (by himself or others) as anything other than simply “Protestant.”

  • Jill W.

    Has anyone been able to determine what his “kind” of Protestant Stevens claims to be? I’ve been looking for it all afternoon.

  • http://bendingthetwigs.blogspot.com Crimson Wife

    According to this article from the Catholic League, “President Gerald R. Ford appointed John Paul Stevens, a justice who is apparently without formal religious affiliation.”

    He grew up wealthy, so my guess is he was probably raised nominally Episcopalian.

  • MJBubba

    I saw that Ms. Sarah’s post was linked to from this essay at USA Today:
    http://content.usatoday.com/communities/Religion/post/2010/04/supreme-court-justice-stevens-catholic-jewish/1

    I am Lutheran, and less concerned about religious diversity, in view of the widely divergent philosophies of juridical thinking among the Court’s Catholic members. I am more concerned about achieving diversity of influences. I have not seen anyone observe a lack of diversity among the Universities attended by the members. I think that over half the Court have degrees from Harvard. Does anyone else think that this leaves America way too much under the influence of a single small faculty?


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