If Elena Kagan is confirmed as the next Supreme Court justice, the court will have six Roman Catholics, three Jews and no Protestants.
Baylor University law professor Mark Osler thinks the Supreme Court needs a Protestant voice.
“Does that matter? I think it does,” he wrote on the Dallas Morning News blog. “Religious diversity is particularly important on a Court which so often gauges broad principles within the American population. For example, the Court often uses a ‘shocks the conscience’ test in assessing Constitutional violations in criminal cases. For many people, the conscience is formed largely through faith, and different faiths will shape the conscience in different ways. Without a diversity of faiths on the Court, and especially the representation of the largest religious bloc in the country, a discussion of ‘conscience’ may not reflect the truest sense of our common beliefs.”
Diana Butler Bass, a recent leader at a Cooperative Baptist Fellowship meeting, lamented the lack of “Protestant sensibilities on the court.”
She noted, “Protestants retain three general convictions that shape their worldview and impact the ways in which they engage the public square.”
Those convictions are individual conscience; the belief that symbols “mean something” (such as the cross and the flag); and church-state separation.
“Missing from the bench upcoming years will be someone who empathizes with the Protestant worldview in a visceral way,” wrote Butler Bass. “As religious cases multiply in an increasingly pluralistic world, I can’t help but think that losing the lived memory of American Protestantism will be a loss for all of us indeed.”
Susan Brooks Thistlethwaite, a senior fellow at the liberal Center for American Progress, thought that “the kind of Protestant spirit that drove the ‘Founding Fathers’ to disestablish religion (i.e., make it unconstitutional for states to financially support their favorite Protestant denomination) has a place in the mix, especially these days.”
The former president of Chicago Theological Seminary said, “The liberal Protestant ethos is not a matter of a nose count of who is what religion on the Supreme Court, but of an awareness of the historic religious roots of our commitment to not establishing religion and all that that commitment entails today. The very freedom of religion is at stake when we cross the line to a ‘public’ religion – and freedom of religion is one of our core freedoms as Americans.”
Before the nomination of Kagan, two senior fellows at the conservative Family Research Council, Ken Blackwell and Bob Morrison, wrote that “a serious Evangelical will not be seriously considered for the U.S. Supreme Court…Evangelicals have been passed over so many times that it’s as if they’re invisible.”
A few days earlier, writing about Protestants, not evangelicals, a commentator on FoxNews.com, Mark Joseph, said, “It remains troubling that a political culture that champions diversity is on the verge of having a Supreme Court that doesn’t share the religious views of nearly two-thirds of its population.”
Other commentators said religion didn’t and shouldn’t matter.
Conservative columnist and former Moral Majority leader Cal Thomas wrote, “The ‘numbers game’ counting Protestants, Catholics and Jews on the bench ought to be as unimportant as the number of blacks and women. It is the law that should be supreme and not a judge’s religious faith.”
Charles Haynes, senior scholar at the Freedom Forum First Amendment Center, pointed out that 91 of the 112 Supreme Court nominees have been Protestants.
“I think it is fair to say that most evangelical Protestants will be happy to see him [the last Protestant on the Court – Justice Stevens] go just as many liberal Protestants will mourn his loss. What matters in a Supreme Court nominee for many religious people on the Right and Left is not religious affiliation but core principles and judicial philosophy, especially as applied to such issues as abortion, same-sex marriage and the separation of church and state,” said Haynes, who has spoken at several Baptist Center for Ethics conferences.
The lack of a Protestant on the Supreme Court may not matter constitutionally, but it seems to matter culturally for any number of commentators – and for much different reasons.
Like the presidency, a seat on the Supreme Court signals cultural advantage, cultural ascendancy. When the first Catholic, Jew, African-American, Hispanic and woman gained a seat on the court, it signaled a mainstreaming, an acceptability of their faith, race or gender. It was a source of pride.
What is unclear is whether the reverse will be true. Will the lack of a Protestant on the Supreme Court be a consequential and unforeseen negative for Protestants and others?
Robert Parham is executive editor of EthicsDaily.com and executive director of its parent organization, the Baptist Center for Ethics.