This week, Elena Kagan, former dean of Harvard Law School and Solicitor General, was chosen by President Obama to fill a vacancy on the Supreme Court. In the coming month, the debate surrounding Ms. Kagan’s confirmation will address her educational background, her intellectual abilities, her knowledge of the law, and (especially) her perspectives on interpreting and upholding the U.S. Constitution.
That is how it should be.
Still, as this important examination goes on, I will be thinking about something else. If and when Ms. Kagan is confirmed, it will be the first time in American history that our country’s highest court will not have at least one Protestant Christian sitting on the bench.
I find this troubling.
Don’t get me wrong. I do not have an axe to grind with Ms. Kagan. I wish her good luck and God’s blessings on this journey. I firmly believe that she should be evaluated according to Constitutional standards, and (separation of Church and State being what it is) not according to some religious or political calculus. I value the contributions of the six Roman Catholic and three Jewish jurists who may soon be ruling on the law of our land. In the end, I am not suggesting that any religious constituency (including Protestants) “deserves” representation on the bench.
Maybe, just maybe, something has been lost in recent years.
Maybe we have lost a tie to our history. The people who crafted the Constitution—people concerned with freedom of religion and the interaction between the Church and the State—were, by and large, Protestants. True, some of them were nominal church-participants. Yet, their world-view was (without question) shaped by Protestant concerns and Protestant values. These values included: a belief that all human systems are prone to corruption and therefore checks and balances were essential; a high regard for public education; an emphasis on a individual’s freedom to chart a path through life, to choose a vocation, and to make decisions before God, without excessive constraint from “higher” authorities in the government or the church. These values were the foundational building blocks of our Constitution and shaped our republican form of government.
Maybe we have lost a tie to a once-radical theological perspective. The Pilgrims came to this country to escape persecution—to escape being brutalized for their beliefs in a feudalist society that did not tolerate outliers. They came from a world in which royalty held absolute power—power that could prescribe what people should or should not believe about their Creator. Arriving in this land, these Calvinists declared their freedom from these shackles by trumpeting the Reformers’ belief that “God alone is Sovereign.” No king, no political figure, no ideological stance, and no bishop or pope, could take the place of an individual’s freedom of conscience before God.
Or, maybe we haven’t lost a tie at all. After all, over half of U.S. Senators are Protestant (15 Presbyterians). The President belongs to a Protestant denomination (The United Church of Christ). At the same time, I have to admit that it is no longer clear that a focused Protestant world-view exists “in the wild” anymore. If you take all the major issues that will confront the courts in coming years, there is a vast diversity of opinion among Protestants as to what it means to “do the right thing.” Maybe we lost our tie to a distinctive world-view a long time ago.
Still, pardon me for a moment; for I must mourn the passing of an era.
Now, tell me what you think… No big deal? Important shift? Something different altogether?
I feel that the system is broken. The supreme court should not be a life-long position. It should rather be limited to 4 or 6 years — not whole life of the individual. The whole thing about Catholic, Jewish and Protestant seats should be least of our concerns. All three groups can be manipulated, corrupted, and/or bribed. [This Post Edited by Site Moderator]
A typically very thoughtful post Scott. A couple points (not intended to rebut in any way your well considered argument, but rather to supplement the discussion):
1. We should be wary of suggestions that the Supreme Court, and other highly selective institutions, should “look like America.” (And I know that’s obviously not your point.) Such arguments have historically been used to discriminate against Jewish Americans in elite settings. (See, e.g., Marcia Graham Synnott, The Half-Opened Door: Discrimination and Admissions at Harvard, Yale, and Princeton, 1900-1970 (1979).) Perhaps because the Jewish religion is very legalistic, Jewish Americans have tended to thrive as lawyers and are highly represented in elite law schools, which means the pool of potential Supreme Court nominees should be expected to be much more Jewish than the overall population.
2. I’d suggest that the modern tendency for Catholics to be appointed to the Court is very much a function of Roe v. Wade (1973). With the exception of Sonia Sotomayor (whose appointment is largely a function of another modern American trend, the inflow of Hispanic immigrants), the Catholic justices on the Court were all appointed by Republican presidents committed to overturning Roe. Because Catholic church doctrine is strongly anti-abortion, and that of the mainline Protestant churches is decidedly not, it’s hardly surprising that the GOP would be drawing justices from a Catholic-tilted pool.
(Of course, it’s easily possible for someone to be somewhat tolerant of abortion on moral grounds (the PC-USA position), as well as on policy grounds, but also think Roe v. Wade is bad constitutional law. (That’s essentially my position.) But that position can make nomination and confirmation tough, which is one reason Laurence Silberman (who’s Jewish) wasn’t nominated by the Reagan and Bush administrations in the 1980s.)
Anyway, just food for thought.
Dear Scott: Thoughtful comments that warrant an equally thoughtful and comprehensive response–more than I can offer 24 hours post read. I will respond briefly. I agree there should be Protestant appointees considered and those of the Baha’i Faith, Buddhists, etc. A more colorful palette than a sprinkling of color meaning skin tone may be more just as well…pun intended.
As always your utterances are timely, thought provoking and not burdensome to the reader. Keep writing and I will keep reading.
God Bless,
Candy Asman, RN
How have we, as a Protestant sub-culture, let respect for education and pursuit of excellence become optional?
It seems to me that best-and-brightest requires values and commitments that we only support sporatically, having become ambivalent about notions of elitism, extraordinary ability and egalitarianism.
We yearn to be part of something bigger than ourselves, but — in broad strokes — are suspicious of institutions bigger than what we can find down the street.
I don’t feel unrepresented by only Catholic and Jewish Justices (if representation were even the issue), but given the population proportions, it can’t be random that we find ourselves here. For us to all thrive together, ALL of our communities must pull our own weight in leadership and excellence.
Apropos “Protestants and the Court,” interesting article in The Wall Street Journal today:
That Bright, Dying Star, the American WASP
Kagan Nomination Marks Another Faded Day in the Establishment’s Illustrious but Insular History; a New Path to Power
By ROBERT FRANK
On a recent morning at the Links Club, New York’s wood-paneled preserve of the old banking elite, a small crowd of white-haired members gathered for breakfast.
The talk around the tables, over poached eggs and toast, was of Europe and sovereign-debt markets. Some were quietly negotiating deals. The crowd was mostly older, though it included a smattering of 40-something and 50-something members.
While undeniably upper-crust, the scene, which included a Latin American and an Asian, was a far cry from the Links Club of 20 years ago, when doing business was forbidden and the strictly homogenous crowd of Protestant blue-bloods spent their mornings comparing golf scores and vacation homes.
“It’s changed with the times,” said one former member. “That’s both our gain and our loss.”
In the long downward spiral of what used to be known as America’s Protestant Establishment, there have been several momentous milestones: Harvard’s opening up its admissions policies after World War II. Corporate America’s rush in the 1980s to bring more diversity to the corner office. Barack Obama’s inauguration as the first African-American president.
History may reveal another milestone—Elena Kagan’s nomination to the Supreme Court. If she is confirmed, the nation’s nine most powerful judges will all be Catholic or Jewish, leaving the court without a Protestant member for the first time.
Of the 111 Supreme Court Justices who have served, 35 have been Episcopalians, making them the largest religious group on the court, according to court historians. The court’s first non-Protestant was Catholic Justice Roger Taney, appointed by President Andrew Jackson in 1836.
Whether the court’s religious makeup even matters in today’s legal world has become a subject of hot debate. Yet by ushering in a Protestant-free court, Ms. Kagan is helping to sweep away some of the last vestiges of a group that ruled American politics, wealth and culture for much of the nation’s history.
“The fact that we’re going to zero Protestants in the court may not be as significant as the fact that her appointment perfectly reflects the decline of the Establishment, or the WASP Establishment, in America,” said David Campbell, associate professor of political science at the University of Notre Dame.
Seen from the distance of time, the changes are stunning. In the 1960s, the vast majority of corporate managers were Protestant, according to E. Digby Baltzell’s famous 1964 tome, “The Protestant Establishment.”
The percentage of Protestants in Congress has dropped to 55% from 74% in 1961, according to Pew Forum. The corner offices of the top banks, once ruled by Rockefellers and Bakers, now include an Indian-American and the grandson of a Greek immigrant.
In old-money enclaves like Palm Beach, Fla., Nantucket, Mass., and Greenwich, Conn., WASPs are being priced out of their waterfront estates and displaced on their nonprofit boards by Jewish, Catholic and other non-Protestant entrepreneurs.
A survey by Pew Research found only 21% of mainline U.S. Protestants had income of $100,000 or more, compared with 46% of Jews and 42% of Hindus.
Until the early 1980s, when a flood of new wealth began to democratize the American elite, the path to power and status in America was straight and narrow. It usually began with old-line families in the lush estates of Greenwich, Boston, New York or Philadelphia and wound its way through New England boarding schools, on to Harvard or Yale and finally to the white-shoe law firms or banks of the Northeast or the corridors of power in Washington.
John J. McCloy—the Philadelphia-born, Harvard-educated lawyer and banker who served as assistant secretary of War during World War II and on several corporate boards, including Chase Manhattan Bank’s—became known as “the Chairman of the Establishment.”
His son, John J. McCloy II, a Connecticut-based venture capitalist, says Ms. Kagan’s nomination is a sign of the nation’s commendable meritocracy, but also a “dangerous departure” from Establishment mores, since Ms. Kagan, while a brilliant scholar, has no experience as a judge.
“I think we’re losing something fundamental with the Establishment,” he said. “The Establishment was really about people who became leaders because they were confident and highly competent in their areas.”
The Protestant downfall can be attributed many things: the deregulation of markets, globalization, the rise of technology, the primacy of education and skills over family connections.
Yet many also point to the shifting dynamics of the faith itself, with mainline Protestantism giving way to the more fire-and-brimstone brands of Evangelicals in recent decades. The Episcopal Church, usually seen as the church of the Establishment, has seen some of the most pronounced declines in recent years.
Rev. Mark S. Sisk, bishop of the Episcopal Diocese of New York, said the polarized landscape of religion today hasn’t favored more moderate faiths like Episcopals.
“When it comes to elective office, I can’t think of anyplace in the country where being a middle-of-the-road Episcopalian would be a great plus,” he said.
He added, however, that tracking the ups and downs of socioreligious groups like WASPs was no longer relevant.
“That kind of calibration of ‘what members of my team are on the front lines’ seems to me to be an antique kind of thing to do,” he said.
Meantime, WASP culture has been left to live out its days as a fashion statement, on the shelves of Ralph Lauren stores, or as a social badge at defiantly old-world clubs like the Knickerbocker Club in New York or the Bath and Tennis Club in Palm Beach.
In “The Protestant Establishment,” Mr. Baltzell pointed to the prejudice and insularity of the elite as the eventual causes of its decline. “A crisis has developed in modern America largely because of the White-Anglo-Saxon Protestant establishment’s unwillingness, or inability, to share and improve its upper-class traditions by continuously absorbing talented and distinguished members of minority groups into its privileged ranks.”
Jamie Johnson, the documentary filmmaker and heir to the Johnson & Johnson fortune, said he believed the destructive effects of wealth over multiple generations were also a factor.
“The generations of affluence bred a certain kind of casual, passive approach to life and wealth building,” he said. “Lots of people just got lazy.”
Write to Robert Frank at robert.frank@wsj.com
Dear Rev. Johnston,
Respectfully, in a country that now features income inequality comparable to mid-19th century England, and has an an appallingly high infant mortality rate, the religious and denominational makeup of the Supreme Court ranks pretty low on the list of priorities for Christian witness, at least in this Protestant’s opinion — if it should be on the list at all. (I guess you could put me in the “no big deal” category.)
As a Christian and as a citizen, I am less concerned about the religion or denomination of Justices than I am with how they decide cases. That is, I am more concerned with their jurisprudential world-view than with their religious or denominational one.
I was a big fan of Justice Stephens — and fear a Justice Kagan won’t end up being in the same league — but frankly it never occurred to me that he was a Protestant, and I still couldn’t tell you his denomination. I also find myself in rather regular agreement with the two Jews on the court, though I flinch at even feeling the need to point out their religious affiliation in this fashion.
Near the end, you note that there isn’t an essentially Protestant world-view, and I would agree wholeheartedly. As an Episcopalian, I find myself agreeing on almost nothing with, say, the typical Southern Baptist, and often have rather intense disagreements even with members of my own denomination. Conversely, I greatly admire and feel inspired by the way Catholic nuns and priests do God’s work in the most desperate corners of the planet, and by many American Jews’ ceaseless commitment to social justice.
Beyond some essential parameters and assumptions, it is hard to identify a coherent Protestant world-view anymore. If it’s not too presumptuous, may I suggest we continue to do God’s work in this world, and let the religious and denominational makeup of the Court, not to mention the White House and Congress, sort itself out.
Yours in Christ,
Geoff
I salute you. These are wonderful comments. I agree with the prevailing trend here that a justice’s denomination (or religion, or lack thereof) is less of a concern than many other factors. I am sure that I am the victim of a bit of nostalgia and “what has become of main-line Protestants” hand-wringing too!
Yet, let me make one more appeal for a classic Protestant position that I do not want to see vanish, regardless of the individual who embodies it. I am speaking about the Protestant inclination to caution against placing too much power in the executive branch of government.
Protestants have long been suspicious of what happens when power gets concentrated in an individual. Observant Catholics, however, are presumably more comfortable with that notion, at least in the religious sphere. In a time (and I am talking about past administrations and the current one) when questions are being raised about the scope of presidential power, this seems a crucial perspective to have in the mix. Although, I will admit, that it not a perspective that is confined to Protestants!
Yes, but…
The folks in the previous administration most comfortable with expanding executive and governmental powers, including the President himself, were all Protestants. The current President, who also is quite comfortable with expanding his power, is also Protestant.
Yet among our most ferocious critics of expanded governmental and executive power, both inside and out of government, are Catholics, Jews, and other non-Protestants and non-religious. The list is rather lengthy and impressive. Russ Feingold and Patrick Leahy, to name just two critics , are better Protestants than most Protestants.
Also, and regrettably, huge swaths of the electorate most interested in expanding government power in various areas hail from Protestant denominations.
Agreed… You have all convinced me that I should call for Protestant thinking, rather than Protestant bodies!
Amen.
LOL — and yet —- the most visible Protestant “thinkers” (and I use the term very loosely) on the current political front, scare the daylights out of me !
Just as Weldon Gaddy and others have spent the last decade working to un-hijack the term “Christian” from the far-right, we may need to coin a phrase “Traditional-Moderate-Protestant” to communicate what the word “Protestant” used to convey. Alas.