The Supreme Court's evangelical blind spot

If President Trump nominates and the Senate confirms Allison Jones Rushing, an appeals court judge rumored to be on the short list to replace the late Ruth Bader Ginsburg, the Supreme Court will get its fourth Baptist justice ever. And the court could use a Baptist, or a Pentecostal, or any sort of evangelical or low-church Protestant at all. Even a Methodist from a church with a band might do.

As it now stands, the Supreme Court's religious composition is very different from that of the country it serves. While we shouldn't expect SCOTUS to be a demographic mirror of America, evangelical representation strikes me as particularly important given the demographic's high engagement with controversial social issues. That is, the value of an evangelical justice is not that she would rule in a specific manner because of her faith, but that she would have an insider's understanding of a shrinking but still significant demographic that figures disproportionately in major cultural battles and is increasingly opaque to the Americans on the other side of those fights.

About two thirds of Americans identify as Christians, and that identification as a cultural marker is what interests me here. It's more about a general vision of the world, habits of mind, and who we view as members of our religious in-group than the state of anyone's soul. Within that majority, evangelical Protestants are the largest sub-group, followed by Catholics, then mainline Protestants. By this measure, evangelicalism claims one in every four Americans — and yet there are no evangelicals on the Supreme Court, nor have there been in decades. (There are also no religiously unaffiliated justices, though another quarter of Americans are "nones.")

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After two centuries of dominance by mainline Protestants — overwhelmingly from upper-class WASP denominations like Episcopalians, Congregationalists, and Presbyterians — SCOTUS has become predominantly Catholic and Jewish. Five of the present justices are Catholic (John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh). Two are Jewish (Stephen Breyer and Elena Kagan), as was Ginsburg. One, Neil Gorsuch, was raised Catholic (he even attended the same Catholic high school as Kavanaugh), though as an adult he has attended an Episcopalian church without formally joining, which is as close to Catholic as a Protestant can get.

The last indisputable Protestant on the court was John Paul Stevens, whose retirement in 2010 left SCOTUS with its first entirely non-Protestant line-up. The last Protestant to get anywhere near evangelicalism was Harry Blackmun, a Nixon appointee who retired in 1994. Blackmun was a Methodist, which, as the old joke goes, is a Baptist who has learned to read. The last member of an actual evangelical denomination was Hugo Black, a Baptist who retired half a century ago.

This trend toward Catholic and Jewish appointments is significantly a function of self-selection: Evangelicals for a number of reasons are less likely to plot career paths that would qualify them for SCOTUS. "Judaism and Catholicism have extremely long and rich legal traditions, while Protestantism generally, and evangelicalism specifically, does not," historian Elesha Coffman noted in a 2010 Christianity Today report.

Law school was historically a favored path for Catholic and Jewish immigrants hoping to gain respect, legal security, and middle class status in America, while a strain of anti-intellectualism grew among evangelicals. Those evangelicals who value education often favor Christian colleges, which don't burnish the resume for a SCOTUS pick. Indeed, Protestants of all sorts are now dramatically underrepresented in the Ivy League, from which every current justice hails. Evangelicals also tend to be of lower socioeconomic class and wary of debt, which together can put costly degrees out of reach. Meanwhile Jews, Episcopalians, and mainline Presbyterians hold three of the top four spots for household income among American religious groups.

All this means the pool of qualified Catholic and Jewish candidates is simply larger. Any president's short list today is likely to have more Catholics and Jews than Protestants, let alone evangelicals. The other two women Trump is reportedly considering are both Catholic. But there can't be zero low-church Protestants in this entire country with the education and experience needed to serve the Supreme Court well. Rushing may be one, and surely there are others, even others who might be chosen by, say, a President Joe Biden. Evangelical Democrats exist, though the cultural familiarity I have in mind here wouldn't even require active religious practice.

Exactly what difference an evangelical justice would make is impossible to say. Ginsburg downplayed her religion's influence on her rulings, saying we'd be better advised to speak of "justices who happen to be Jews" than "Jewish justices." Her good friend, the late Antonin Scalia, likewise mused that he would be "hard-pressed to tell you of a single opinion of [his] that would come out differently if [he] were not Catholic." But Breyer, known for being fairly secular, has said Judaism shaped his understanding of justice as well as his general legal perspective and style.

In any case, the justices' task is interpreting the law as it is, not making it what they — or their denomination — wants it to be. It's unlikely any justice will ever begin an opinion, "As an evangelical, I think ... " (though a Jewish justice once opened a dissent thus). But they might well begin a private conversation with a colleague that way, offering useful insight into a litigant's motive or mindset that would otherwise be missed. Just such an insight could have been helpful, I argued, in a recent SCOTUS decision concerning religious freedom which turned on a distinction between different contexts for religious exercise that, from an evangelical perspective, doesn't make sense. This case certainly will not be the last of its kind.

In the 20th century, when WASPs were still the Supreme Court's native species, there was an unofficial tradition of holding a "Jewish seat" and "Catholic seat." Perhaps similar informal reservations will develop in this century as U.S. demographics evolve. If they do, an "evangelical seat" should be included.