Supreme Court Likely to Have No Protestants

The Christian Century, June 15, 2010 | Go to article overview

Supreme Court Likely to Have No Protestants


If Solicitor General Elena Kagan, preparing for confirmation hearings to make her the newest member of the U.S. Supreme Court, is installed, it would change the religious makeup of the nation's highest court. But does it really matter that the bench would include six Catholics and, with her confirmation, three Jews and no Protestants?

It's a historic turning point for a court once comprised of Protestant elites to have no Protestants following the retirement of Justice John Paul Stevens. But the shift may say more about how the country-rather than the court--has changed.

"I think that this means that this is an extraordinarily tolerant country religiously, and I think we should stop for a moment and appreciate that," said Boston University professor Stephen Prothero. "It wasn't long ago that Protestants were burning down Catholic monasteries, and it wasn't long ago that the Holocaust happened."

As times changed, presidents used the nomination process to determine who should fill a "Catholic seat" or a "Jewish seat" or even a "woman's seat" on the court. Now, even those limitations are archaic, Prothero said. "The glass ceilings are gradually getting shattered."

If Kagan is confirmed as expected, she will join fellow Jews Ruth Bader Ginsburg and Stephen Breyer on the court. Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor are all Catholics.

Religious affiliation has become, in recent weeks, the newest wrinkle in the long-running Washington parlor game of sketching the profile of top-level nominees that often starts with race, ethnicity, gender and ideology.

The Constitution specifically forbids a "religious test" for government office, and that's the way it should stay, said Barry Lynn, executive director of Americans United for Separation of Church and State. "Religious affiliation," he said, "is immaterial."

First Amendment Center scholar Charles Haynes said Kagan's nomination--and the rather ho-hum consideration of the court's religious makeup--is an indication of the country's maturity. …

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