Feature

Supreme Court: The last Protestant

When Supreme Court Justice John Paul Stevens retires, the court will be without a Protestant for the first time since its inception. 

When Supreme Court Justice John Paul Stevens retires this summer, the court will be without a Protestant for the first time in its 220-year history, said James Oliphant in the Los Angeles Times. Protestants make up about 51 percent of the population, but following Stevens’ departure the court will consist of two Jews and six Catholics. This “historical oddity” is particularly striking given that the court was exclusively Protestant for its first decades; it didn’t get its first Catholic, Roger Taney, until 1836 and its first Jew, Louis Brandeis, until 1916. Stevens’ pending resignation has prompted debate “as to whether the religion of a justice matters, and whether President Obama should consider the faith of his next nominee.” Only one of the president’s three reported favorites to replace Stevens is Protestant—federal appeals court judge Diane Wood. The other two—Solicitor General Elena Kagan and appeals court judge Merrick Garland—are Jewish.

If Protestants are shut out, said Richard W. Garnett in The Wall Street Journal, don’t expect them “to, well, ‘protest.’” America’s story is largely about “the efforts of once-marginalized and ‘outsider’ groups—like Jews and Catholics—to get ‘in.’” Mainstream Protestants were never on the outside and, for most of them, being Protestant isn’t really much of an “identity.” But when it comes to representation on the Supreme Court, one segment of Protestants—evangelicals—is definitely overdue. If evangelicals feel excluded, imagine how it feels to be among the 16 percent of Americans who claim no particular religion? said David Walters in WashingtonPost.com. The Constitution clearly states there should be “no religious test” for office. Yet presidents invariably overlook any outspoken atheists or agnostics when making nominations to the court. When do nonbelievers get a seat?

Who said the court should “look like America”? said Matthew Wilson in The Dallas Morning News Online. The Supreme Court is “in no sense a representative body,” and appointed justices “are not supposed to have constituents.” Their role is to interpret the Constitution, and the notion that there is a female or black or Protestant way of doing so is pernicious. Most Americans are more interested in “a nominee’s constitutional philosophy and judicial temperament” than in his or her religion. And that’s exactly as it should be.

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