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Saturday, April 17, 2010

A Supreme Court without Protestants?

I have an op-ed in today's "weekend" edition of the Wall Street Journal called "The  Minority Court" (I didn't pick the title).  Here's a bit . . .

Those who founded our nation would certainly have been surprised by much of what goes on now at the Supreme Court—free-speech cases about online child pornography, search-and-seizure disputes involving thermal-imaging devices, and so on. Even more surprising to them than the Court's work, though, would have been the Court's current makeup. Its nine members include two Jews and six Roman Catholics. And Justice John Paul Stevens, the Court's lone Protestant member, recently announced his plans to step down. . . .

Certainly, the Court's current lineup confirms the long distance traveled since crude and bizarre anti-Catholic polemics and conspiracy theories helped to sink the 1928 presidential campaign of Al Smith, or the days when the unabashedly anti-Semitic Justice James McReynolds refused to speak to his Jewish colleague, Justice Brandeis. More curious than the increasing numbers of Catholics and Jews on the Court is the possible disappearance of Protestants. Diminishing prejudice helps to account for why a country that is 2% Jewish has a Supreme Court with two Jewish justices, but it would not seem to explain why the Court of a nation that is half-Protestant might soon have no Protestants. . . .

Posted by Rick Garnett on April 17, 2010 at 02:18 PM in Constitutional thoughts | Permalink


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Rick, I appreciate the opportunity to comment on your op-ed. There are a number of claims in it to which I’d like to respond.

(1) You are undoubtedly correct that the founders – by whom I assume you mean Jefferson, Madison and the usual cast of historical characters – would be surprised by the make-up of the Court, but it’s hardly the Justices’ religions that would shock them. The presence of two women and an African-American would do the trick. Jefferson, in particular, would be surprised to find the type of human he considered property sitting on the Court. The shock would be so great, I doubt it would even occur to them to ask the Justices’ religions.

(2) Diminishing prejudice certainly could explain why the Court might soon have no Protestant members. In fact, it is probably precisely diminishing prejudice that explains it. Mainstream Judeo-Christians of all kinds are considered equally worthy, apparently. Further inquiry into the particular branch of Judeo-Christian religion seems less imperative now than ever before.

(3) The Democratic party did not embrace expansive abortion rights. It embraced expansive privacy rights. Its unwillingness to embrace an invasion of privacy, by using state power to limit an individual’s choice about whether to obtain an abortion, did drive many Catholics away from the Democratic party.

(4) I doubt there is any data to support the assertion that “gifted evangelical Protestants” are now able, in ways they were not able before, “to follow the Catholic path into elite law schools and legal jobs.” Are you suggesting that qualified evangelical Protestants have been discriminated against in admission to law schools? When? By whom? The claim is not only unsupported and implausible, it is undermined by your own account of the previous make-up of the Court – if there were few Catholics and no Jews on the Court until the 20th century, who was on the Court, if not Protestants? If your point is that they weren’t evangelical, does evangelical refer to membership in particular Protestant denominations?

(5) I would think that the largest unrepresented group in the United States on the Court, based on religious views, is atheists. Would you agree? It is much more remarkable, it seems to me, that despite atheists making up a significant minority in the United States, any nominee for the Court professing to be an atheist would be a non-starter. That, it seems to me, is a much larger and more important story about religion and the Court than the possible temporary absence of Protestants.

Thanks again for the opportunity to respond.

Posted by: Mark Edwards | Apr 19, 2010 9:35:57 PM

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