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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