No Protestants on SCOTUS

May 12, 2010 @ 11:14 By 27 Comments

Lawbook.jpgHere’s the new question at the “On Faith” discussion at the Washington Post. What do you think? Does it matter? Does theology matter? Does theology matter when it comes to rendering legal judgment?

If Elena Kagan is confirmed to replace retiring Justice John Paul Stevens, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations — the Protestant traditions. If Kagan is confirmed, six of the justices will be Roman Catholic and three will be Jewish. Should the Supreme Court be more representative of America’s religious traditions? Does religion matter in the mix of experience and expertise that a president seeks in a Supreme Court nominee?
Filed Under: Uncategorized 27 Comments
About Scot McKnight

Scot McKnight is a recognized authority on the New Testament, early Christianity, and the historical Jesus. McKnight, author of more than thirty books, is the Professor of New Testament at Northern Seminary in Lombard, IL.

  • Robin

    I would prefer if every supreme court justice was a socially conservative, evangelical, libertarian who held exactly the same positions I did on every subject to ensure that all decisions fell close to my preferences. However, as a matter of policy I think it matters very little what the religious makeup of the court is. I have no reason to believe that a protestant, broadly defined to include mainline and conservative denominations, would rule any different than a conservative Catholic like Scalia or a liberal Jew like Ginsburg.
    On a slightly different note, I find the current makeup of the court astounding when you consider that all (I believe) of the justices were appointed by protestants. Since I assume that the presidents selections were made based upon ideology more than religious preferences, it is interesting to note that protestant presidents consistently choose Jews and Catholics to be reliably ideological rather than someone from their own religious background. Any thoughts on that phenomenon?

  • Larry

    I’m more concerned about the lack of diversity in other areas. If Kagen is confirmed, all of the justices would be Harvard or Yale alumni. Four of them would be from New York City.

  • Steve

    The fact that there would not be a Protestant on the Supreme court is not, in my opinion, the most pressing issue. In my view the highest priority is having a Justice that seeks to follow our Constitution in a humble, nonpartisan fashion, with a heart seeking true justice for everyone that lives in the United Sates.

  • Richard

    I don’t want Joe the Plumber on the Supreme Court. I want educated, well-reasoned judges that wrestle with the constitutionality of the actions of the legislative and executive branches. If they put the best interests of the American people and the globe ahead of personal bias, I don’t care where they were born, what their family make-up was, or where they went to law school… though I could support a Wolverine over an Ivy Leaguer ;-)

  • http://thesometimespreacher.blogspot.com/ Andy Holt

    Richard, I find you’re insistence on promoting a graduate of the University of Michigan to the SCOTUS remarkably offensive, given the mediocrity of their football team in the last few years, and their continued failure to defeat the honorable genius Jim Tressel. You can have a seat on the bench when you finish higher than sixth in the Big Ten. ;)

  • http://www.TheFaithLog.com Jeff Doles

    The role of the SCOTUS is not to judge according to personal bias, of course, but neither is it to judge according to what they think is best for the American people or for the globe, for that would invariably run to what their personal bias is about what is best for those.
    Rather, the role of SCOTUS is to judge according to the US Constitution and that alone, because, presumably, the Constitution is about what is best for the American people. If there should be some way in which it is not best for the American people, there is a way to address that and amend the Constitution, and that is through the legislative branch, not the judicial.

  • Dan Kellison

    As poor an example of Catholic upbringing as the majority of the court shows, As a Catholic, I think a Protestant, would be welcomed.

  • http://www.theproblemwithkevin.com kevin s.

    I don’t care if they’re all Hindus from suburban Omaha, so long as they respect the Constitution.
    It does bring up an interesting point about evangelical Christianity’s failure to maintain an intellectual tradition. The Catholics have done the dirty work for us in that regard.

  • http://www.davidhimes.com David P Himes

    Two points:
    First, I must agree, that on principle, so long as an individual respects the Constitution of the US, their faith should not and does not matter.
    Second, it is interesting to observe that this particular group are members of faith traditions which emphasize a legalistic, works-oriented path to salvation.
    As Paul told us, grace and law are at odds with each other.
    Obama might have better served his own agenda by finding a “grace-oriented” Protestant.
    Now, there’s a basis for debate in Congress! What fun that would be to watch.

  • Richard

    @ 5 Andy
    Touche. I figured since the captain of our worst football team ever could become POTUS and we own space we could place someone on SCOTUS ;-) .
    @ 6 Jeff
    “Rather, the role of SCOTUS is to judge according to the US Constitution and that alone, because, presumably, the Constitution is about what is best for the American people. If there should be some way in which it is not best for the American people, there is a way to address that and amend the Constitution, and that is through the legislative branch, not the judicial.”
    Agreed, that was my intent in my statement. Thanks for clarifying it further.

  • http://transformingseminarian.blogspot.com Mark Baker-Wright

    It seems to me that calling the Protestant traditions “America’s largest religious affiliations” needs unpacking. Yes, if taken as a large group, there are probably more Protestants than other groups (but then, how are other “affiliations” defined?), but I’m sure any Roman Catholic would be quick to point out the the RC is still the largest single denomination in America.

  • http://mysticallimpet.blogspot.com Travis Greene

    kevin s. @ 8 is right. It’s actually pretty difficult for me to imagine an evangelical Supreme Court justice.
    David Himes @ 9,
    That’s a pretty narrow and reductionist understanding of both Catholicism and Judaism.

  • Barb

    at least we won’t be debating eachother about whether some protestant nominee is “Christian-enough”–probably better this way. What sort of Protestant do you want?

  • http://mrshields.com Adam Shields

    I would not put it as David #9 did, but I do think that both Jewish and Catholic traditions have a long legal theory as part of the culture and theology of their respective faith traditions. Protestants on the other hand tend to split rather than call back to theological/legal justifications in areas of faith and practice. Yes that is over simplifying, but I do think it is important to note that legal education is only recently been of importance to Evanglicals and Protestants. Catholic and Jewish institutions have been at the forefront of legal education for much of the last 150 years of US history.

  • nathan

    I think the question/concern itself is part of an increasingly “balkanized” cultural landscape…and that’s a problem in itself.

  • MatthewS

    When Sotomayor was appointed, life story was said to be significant. If this is true, then perhaps the absence of a life story that represents America’s largest religious affiliations might be a problem.

  • Jjoe

    I’d say granting corporations the same free speech rights as individuals is a very representative “protestant” decision. It’s a very individualistic, consumeristic, anti-government, pro-capitalism view of the world.
    I’d be in favor of a Buddhist supreme court justice, for they have to live with the consequences of their decision rather than ride on faith over works. I mean, which would you rather have making decisions? Someone who worries about their karma or someone who is going to heaven no matter what they do?

  • http://www.theproblemwithkevin.com kevin s.

    @Jjoe (17)
    “I’d say granting corporations the same free speech rights as individuals is a very representative “protestant” decision. It’s a very individualistic, consumeristic, anti-government, pro-capitalism view of the world.”
    Consumeristic isn’t the word you mean to use here.
    The Constitution is a pretty anti-government document. I don’t see this as a pro-capitalism decision. It merely affirms that you cannot abridge the right to free speech collectively.
    If corporations were not legally classified as people, this wouldn’t even be an issue. If you want to debate the wisdom of treating them as such, you are free to do so, but this case wasn’t about that.
    I’m also not sure what is inherently capitalistic about protestantism. Can you explain that?

  • Chuck

    It seems that the virtue of “diversity” in selecting all manner of public servants applies only in certain ways (ex. race, gender). A SCOTUS that is made up of only two religious expressions and two college law schools equals a pretty homogeneous group. I don’t see that as very healthy.

  • EricG

    The point made by several folks above that there is a lack of any sort of evangelical tradition in elite law is a very good one. As someone who went to one of those (awful) Ivy League law schools, and who is a partner at what is considered an “elite” law firm, I can tell you that evangelicals are almost nowhere to be found in those areas. The respected conservatives in law are almost all Catholic.
    I also have to admit to getting a chuckle out of hearing Protestants complain about under representation.
    By the way, the way some folks above seem to view the Constitution seems similar to the way some ultra conservatives view the Bible, as a sort of inerrant answer book. The truth of the matter is that the Constitution requires interpretation, which is often not black and white, just as the Bible requires interpretation.

  • EricG

    I’d like to add that I see at least two reasons evangelicals are not, as general matter, at elite levels in law.
    One relates to the issues Mark Noll raises in Scandal of the Evangelical Mind — i.e., the failure of evangelicals to make a sustained effort to cultivate an academic “life of the mind.”
    The second problem is that when evangelicals engage law, it is typically as an instrument of the culture wars. This approach is viewed with significant skepticism among the elite in the legal field, much the same way evangelical attempts to influence science education as part of the culture wars is viewed with justifiable skepticism by scientists. Evangelical engagement in both areas often appears like a farce. It is no wonder many scientists and lawyers don’t want to be identified as evangelicals.
    You’re not going to change the involvement of evangelicals at elite levels of law unless both of these are addressed.

  • http://www.theproblemwithkevin.com kevin s.

    @EricG
    “By the way, the way some folks above seem to view the Constitution seems similar to the way some ultra conservatives view the Bible, as a sort of inerrant answer book.”
    This isn’t true. The conservative position (the phrase “ultra-conservative” is raw pejorative) is that the court must take a strict view of the Constitution. For the purposes of the judicial branch, the Constitution might as well be inerrant.
    However, congress is free to modify the Constitution, for the reason that they are electorally accountable. This is nothing like the conservative approach to theology.
    Geography contributes quite a bit to the paucity of evangelicals at elite schools. Those who attend elite law schools tend also to have attended elite undergraduate colleges and universities. Students from the coasts have disproportionate representation at these schools, and the intellectual traditions on the coast skew away from protestantism (and toward, for example, Catholicism).
    I will agree that evangelicals should adopt a broader approach to civic engagement. They could learn from Catholics like John Roberts in this respect. And any Christian who cares about the make-up of the court should be as comfortable offering educated opinions on Kelo and Raich as they are Roe & Griswold.

  • JoanieD

    I find Jjoe’s comment in #17 interesting: “I’d be in favor of a Buddhist supreme court justice, for they have to live with the consequences of their decision rather than ride on faith over works. I mean, which would you rather have making decisions? Someone who worries about their karma or someone who is going to heaven no matter what they do?”
    When I first read that none of the justices were Protestant, I was a bit surprise, especially, if a commenter above is correct that all of the Presidents who appointed them were Protestant themselves.
    I want the justices to be the brightest, wisest people, dedicated to upholding the Constitution. That’s one reason to always pray for our President to make wise decisions in selecting these people.

  • EricG

    Kevin S. -
    Thanks for responding. But you are not really addressing my key point, which is that the Constitution must be *interpreted* (just as the Bible must be interpreted).
    People can say that Justices should “strictly construe” the Constitution, but that isn’t very helpful in many contexts. Judges are asked today to apply the Constitution to situations that didn’t exist hundreds of years ago, and that never crossed the minds of the framers. The few number of words used in the Constitutiuon alone should tell us something — it simply doesn’t provide the clarity some folks believe regarding its meaning in situations today. That’s not to say you throw out the text; it only means that interpreting it is far harder than some people let on, and there are often not clear answers.
    I’m not sure that geopraphy plays as much of a role as you might think in admissions to elite law schools. Many (if not all) of those schools try to generate a student body that has geographic diversity, almost as much as they attempt to have gender or racial diversity. That was the case at the law school I attended, and others I’m familiar with.

  • KEN

    Not only are there no protestants, there are apparently no people who did not originate in the NY , NJ area. Is the eastern seaboard the locus of all legal genius, let alone opinion. Broad representation of all of the USA geographically, academically, religiously, etc. should be a goal.

  • http://www.theproblemwithkevin.com kevin s.

    @ericg
    “Thanks for responding. But you are not really addressing my key point, which is that the Constitution must be *interpreted* (just as the Bible must be interpreted).”
    Nobody disagrees with this. Your main point was that conservatives see the Constitution as an inerrant answer book.
    “People can say that Justices should “strictly construe” the Constitution, but that isn’t very helpful in many contexts. Judges are asked today to apply the Constitution to situations that didn’t exist hundreds of years ago, and that never crossed the minds of the framers.”
    Nobody disagrees with this either.
    “The few number of words used in the Constitutiuon alone should tell us something — it simply doesn’t provide the clarity some folks believe regarding its meaning in situations today.”
    No, but it sure as heck doesn’t mandate that every state legalize abortion. It does not protect the right of government to take property from private citizens and give it to corporations. You have to inject your own opinion into the Constitution in order to arrive at those conclusions.
    “I’m not sure that geopraphy plays as much of a role as you might think in admissions to elite law schools. Many (if not all) of those schools try to generate a student body that has geographic diversity, almost as much as they attempt to have gender or racial diversity.”
    This isn’t true. Gender and racial diversity are FAR more important in virtually all admissions scenarios, undergrad or otherwise. Most undergraduate schools frown upon students from schools that have yet to send a student to their school. It is almost as big of a detriment as being a non-Asian minority is a positive.
    Further, home-schooled students have a very tough road to admission at the best universities. There are more top-tier students in home-schools and co-ops in the Midwest and rural areas.
    Undergraduate training drives admission to top law schools, so there isn’t any way around the geographic argument.

  • EricG

    Kevin S –
    You keep saying that nobody disagrees with various points I’m making, but I can tell you plenty of folks who sign on to “strict constructionism” don’t get these points. Perhaps you do; that’s great. That doesn’t undercut the fact that when I speak to conservative Christians, they often don’t get these key points.
    As to what my main point was, I find it interesting that you believe you know that better than me. My original post made reference to the way folks view the Constitution as an answer book, and relatedly the failure to see that it needs interpretation, which is the same point I’m making now.
    I’m also curious about the basis for your knowledge of admissions at elite law schools. What’s your personal knowledge? I can tell you I’ve observed first hand the efforts they make to attract a geopgraphically diverse student population, at least at some such schools.
    In all events, even if there were some geopraphic effect, the far larger problems are the ones I identify above (and don’t forget that there are indeed evangelicals on the coasts in any event): Evangelicals are simply not going to gain respect in law until they resolve the sorts of issues Mark Noll writes about, they stop fighting their culture wars, and they get real about the legal discipline. They are a long way off from getting any sort of respect now.