May 10th, 2010
12:12 PM ET
4 years ago

Supreme Court may have no Protestant justices for first time in history

If Solicitor General Elena Kagan is confirmed, for the first time in history, the U.S. Supreme Court would have no Protestant Christian justices.
If Solicitor General Elena Kagan is confirmed, for the first time in history, the U.S. Supreme Court would have no Protestant Christian justices.

Washington (CNN) - The U.S. Supreme Court may soon have no Protestant Christian justices for the first time in history.

If the Senate confirms Solicitor General Elena Kagan, the high court will contain six Catholic and three Jewish justices.

Retiring Justice John Paul Stevens is Protestant; Kagan is Jewish.

For most of American history, a Supreme Court with no Protestant Christian justices would have been unthinkable. Nearly three quarters of all justices who've ever served on the nation's high court have been Protestant. And roughly half of all Americans identify themselves as Protestant today.

But since Stevens announced his retirement, legal and religious scholars have begun entertaining the unprecedented prospect of a Supreme Court without a single Protestant justice.

"It's an amazing irony given how central Protestantism has been to American culture," said Stephen Prothero, a religion scholar at Boston University. "For most of the 19th century, Protestants were trying to turn America into their own heaven on Earth, which included keeping Jews and Catholics from virtually all positions of power."

Many religion scholars attribute the decline of Protestants on the high court to the breakdown of a mainline Protestant identity and to the absence of a strong tradition of lawyering among evangelical Protestants.

"Mainline Protestantism isn't a pressure group," said Prothero, "It's not like the National Council of Churches is lobbying Obama to get a Lutheran appointed to the Supreme Court."

And while Judaism and Catholicism have their own sets of religious laws that date back millennia, many branches of Protestant Christianity do not. For much of the last 150 years, evangelical Christianity has stressed an emotional theology of "heart" over "head" - not a recipe for producing legal scholars with eyes fixed on the Supreme Court.

"Evangelicals have put more effort into getting elected than in getting onto the bench," said Michael Lindsay, a Rice University professor who has studied evangelical elites. "Electoral politics is more similar to the style of rallying of around revival campaign than it is to the arduous journey of producing intellectual giants that could be eligible for the Supreme Court."

President Barack Obama announced Kagan as his nominee to the Supreme Court on Monday morning.

Obama's first Supreme Court appointee, Sonia Sotomayor, is Catholic.

One explanation of Catholics' and Jews' high court hegemony is that members of both traditions have long pursued legal degrees as a way to assimilate into a majority Protestant country.

"Most American Catholic law schools were not formed to be elite institutions of lofty legal scholarship, but as way to respond to the fact that other law schools were excluding Catholics," said Richard Garnett, a professor at the University of Notre Dame Law School. "It was a vehicle to get Catholics into the middle class."

"Early on, those schools admitted a lot of Jewish students who were being discriminated against," Garnett said.

Today, Catholic law schools at Georgetown University, Fordham University, and Notre Dame are considered among the best in the country.

Evangelical Protestant colleges, meanwhile - including Regent University and Liberty University, founded by Pat Robertson and Jerry Falwell, respectively - have opened law schools only since the 1980s.

And law schools with Protestant roots - like Harvard and Yale - shed their religious identities a long time ago, part of the broader fading of a distinct mainline Protestant identity in the U.S..

Some legal and religious scholars say the dearth of qualified evangelical candidates for the Supreme Court came into sharp relief in 2005, when President George W. Bush nominated White House counsel Harriet Miers to the high court.

An evangelical Christian who the White House promoted strenuously among evangelicals, Miers' nomination was brought down largely by conservatives - nonevangelicals, mostly - who said she was not qualified for the position.

In the last couple of decades, however, more evangelicals have begun pursuing legal degrees, including at elite colleges.

"There are now vibrant Christian fellowships at Harvard and Yale," said Lindsay. "Ten years from now, it will be entirely possible to see an evangelical Protestant on the Supreme Court."

Rachel Heflin, a senior at Patrick Henry College - a Virginia school whose students are mostly evangelicals from homeschooling backgrounds - said many of her friends are heading to law school next year.

"When your circle of friends is comprised of aspiring lawyers, the joke is about who's going to make it to the high court first," said Heflin, an evangelical Christian who will be attending George Washington University Law School on scholarship.

Which means that a Protestant Supreme Court resurgence may not be too far off.


Filed under: Elena Kagan • Supreme Court
soundoff (13 Responses)
  1. Dominican mama 4 Obama

    Times ARE changing. Try to keep up folks!

    May 10, 2010 01:20 pm at 1:20 pm |
  2. Anonymous

    Isn't Justice blind???...I have absolutely no idea of the religions of the judges of Canada's Supreme Court and have never even heard it brought up as trivia. If a person is qualified, has no skeletons revealed in their vetting, then there should be no reason the nomination should not procede. Unfortunately we all know what will actually happen – religion and politics will get in the way and there will be a ferocious debate over her nomination..... Let it begin.

    May 10, 2010 01:21 pm at 1:21 pm |
  3. gt

    thats sad....no wonder were in the mess we are in now...

    May 10, 2010 01:25 pm at 1:25 pm |
  4. Michael Armstrong Sr.

    Every one wanted a seperation of church and state so heres a start .

    May 10, 2010 01:26 pm at 1:26 pm |
  5. Mikey

    This just goes to show the stupidity in our current obsession with "diversity." Every special interest group thinks it has to have someone on the bench with their same gender/skin color/race/religion, etc. The problem with that is, there are only 9 justices and it would be nearly impossible, if not actually impossible, to represent every alleged minority (as a white, christian, conservative male, I'm one of the smallest minorities where I live, but I don't need to make sure everyone in government looks and thinks just like me). Kagan should not be penalized because she's not protestant, nor should she be benefited by being a woman. The Supreme Court should be filled with the most capable legal minds we have, not by people whose sole qualifications are their outward appeal to vocal special interests.

    May 10, 2010 01:31 pm at 1:31 pm |
  6. ABE

    Lets leave religion alone. Let the best person get the job. Religion has no place in politics and I hope they do away with the life time appointments. I have high regards for the justices but we need fresh minds and there appointment should not be more than ten years. The highest office in the country the Presidency could only be a two term president and he is the leader of the country. Something is wrong with this picture. God Bless.

    May 10, 2010 01:39 pm at 1:39 pm |
  7. Marty, FL

    This should be a non-issue in our country with freedom of religion.

    May 10, 2010 01:49 pm at 1:49 pm |
  8. Fed Up

    No WASP's on the court? Blatant racism. Come on America. Where is the outrage?

    May 10, 2010 01:54 pm at 1:54 pm |
  9. Dave W

    Sure wish religion and politics could be kept separate! I'd like to see at least one Athiest on the court to be fair and I'm not being sarcastic. It would probably lead to a more pragmatic application of justice without religious bias.

    May 10, 2010 01:55 pm at 1:55 pm |
  10. Joe

    Three Jews. I hope they are Jews as of a religion, not affliated with the State of Israel as a Jew. Which are extreme radical Jews.

    May 10, 2010 02:02 pm at 2:02 pm |
  11. Unbelievable!!

    Why does this matter?? The justices are not supposed to make decisions based on their religion.

    May 10, 2010 02:04 pm at 2:04 pm |
  12. Dave Harris

    This is ironic, since this country was mostly founded by "protestants", seeking religious freedom which the Catholic Church and other institutionalized state churches denied them in Europe. One wonders if Catholics are particularly drawn to the law, believing as they do in legalistic systems which claim absolute truth. What if the Pope commands them to ban abortion, or gay marriage, or contraception and threatens to excommunicate them if they don't? Catholic bishops have already tried to intimidate politicians and voters who don't share their views. I doubt that they would consider Supreme Court justices to be above the will of their God.

    May 10, 2010 02:13 pm at 2:13 pm |
  13. Randolph

    So what? This is not a theocracy!

    May 10, 2010 02:53 pm at 2:53 pm |