Today’s announcement that Supreme Court Justice John Paul Stevens will retire can hardly be labelled a surprise (Stevens will soon turn 90, and has served on the court for more than three decades). But since the Supreme Court often decides cases which are entangled with questions of profound moral depth, any change in the court’s make-up is an occasion for careful scrutiny and widespread anticipation.
Stevens is generally considered the most reliably “liberal” justice on the Court. He was not yet on the court when Roe v. Wade legalized abortion, but during his 34-year tenure he has been an influential voice in support of that precedent on the most neuralgic issue for religious conservatives.
But Stevens’ retirement is of religious interest for another reason. When he steps down, it will be the first time in U.S. history that no Protestant is serving on the Court. National Public Radio recently (and in advance of the Stevens announcement) ran a story about this phenomenon. Before that, Slate.com raised some of the same points.
No doubt the six-justice Catholic majority on today’s court would alarm many of the founding fathers — perhaps even more than the presence of two Jewish justices. Strictly speaking, of course, religion cannot be used as a criterion in selection of judges. Article VI of the U.S. Constitution ruled out religious tests for service in public office, even before the First Amendment barred government meddling for or against religion. But the retirement of the only Protestant justice on the court is a milestone worth noting.
It is possible that the next appointee will fill the Protestant void, with or without a religious test. There are presumably still a few qualified Protestants out there, even ones who will fit the profile sought by President Obama. And religious SCOTUS observers might conclude that the church affiliation of justices is entirely beside the point.
The impact of Protestantism on the shape and practice of civil law is an interesting business, and more complex than you might guess. If you’re seriously curious, you should consult, for starters, John Witte’s excellent book, Law and Protestantism: the Legal Teachings of the Lutheran Reformation. And then you can move on to The Supreme Court and Religion in American Life (2 volumes) by James Hitchcock.
I’m still uncertain whether it matters or not that we have a Protestant on the court. The Catholic justices have, for the most part, a strongly developed understanding of natural law and moral order, and the same cannot be said of many Protestants. And that may be more important for the work the Supreme Court does than preserving a vestige of America’s Protestant cultural “establishment.”
Travis Scholl April 12, 2010
Will, I think you’re right about Catholic justices having a stronger understanding of natural law and moral order. Catholic theology and social teaching work more consistently in that direction. Of course, this assumes that Catholic justices care about Catholic theology.
But by the same token, we could say that “Protestant” justices would bring the strengths of their own traditions to bear too. Perhaps a stronger sense of civic vocation, religious freedom, etc? I suspect Witte has insight to bear here. Ultimately, I think I want a “Protestant” perspective on the court for the sake of plurality, but I don’t think it’s necessary for the institution to function. I guess there’s a historical irony that American democracy was a peculiarly Protestant phenomenon that doesn’t require Protestantism to persist. Or does it?
Will Schumacher April 14, 2010
One cannot assume, of course, that Catholic judges know (or care) about Catholic theology any more consistently than Protestant ones. A case in point might be Justice Sotomayor (although, to give her the benefit of the doubt, maybe she simply privileges different parts of Catholic social teaching than her conservative colleagues do).
But I am pessimistic about the capability of Protestant judges to bring to bear “the strengths of their own traditions” on their deliberations. Why so pessimistic? Because American Protestants have largely neglected their own traditions and abandoned even the ideal of a coherent worldview that can connect the “religious” dimension (i.e., a vision of moral order) to “secular” concerns (such as law, politics, or economics).
Perhaps Lutherans do not have to suffer with the Protestants in this. Figures like Gil Meilander and Robert Benne are to be taken seriously, and enrich us.
And at the risk of being flippant, I sometimes think that American democracy IS a secularized form of Protestantism.
Adam Koontz April 13, 2010
Of the major candidates on President Obama’s list whom I’ve heard mentioned, I believe only Diane Wood is a Protestant (Kagan and Garland are Jewish) and has rendered many pro-abortion decisions in her time, as an example of her moral jurisprudence. This kind of Protestantism would be unrecognizable to a Witherspoon or a Muhlenberg. The sorts of Protestants who were around at the nation’s founding, the kind with a strong doctrine of vocation and two-kingdoms theology, are now in the “sideline” denominations like the LCMS, PCA, or OPC that have very little effect on public life.
Whereas Episcopalians and Jews are disproportionately represented in Congress and (Jews, although no Episcopalians) in the Court, the LCMS musters I think two or three congressmen. The sorts of Protestants who might actually think about natural law are neither numerous nor influential in the way that they were at America’s founding. I don’t think it’s needless nostalgia to mourn this. Religious liberty exists in America because of the Founders’ Protestantism, but the folks who actually believe what a John Witherspoon or a James Madison believed about God and country are far from having much influence on the broader culture.
Will Schumacher April 13, 2010
Adam, you’re probably right about how the “kinds of Protestants” have changed since the founding–which is why it doesn’t really matter much to me whether a nominal Protestant gets appointed this time around. (By the way, is Hillary Clinton still a Methodist?)
But does religion still matter on the court, with or without a formal religious test? The question is answered by imagining the nomination of an outspoken atheist, who is on record as a committed legal positivist, and who therefore believes that law is simply made by human beings, with no connection to a real or objective standard of morality. I guess such a nominee would have about as much chance of confirmation as a Wahhabist Muslim cleric!
Adam Koontz April 14, 2010
You’re absolutely correct that religion does matter, although sometimes not in straightforward ways. The issue of the religious test is a complicated one, since even the Founders in radically democratic Pennsylvania (home of Thomas Paine) required this oath: “I do believe in one God, the Creator and Governor of the universe, the rewarder of the good and the punisher of the wicked, and I do acknowledge the Scriptures of the Old and New Testament to be given by Divine Inspiration.” This was amended in 1790 to be more deistic, but the oath stood. They recognized a limit to what the polity could allow in public office because a judge’s confession affects his jurisprudence, as your example of the atheistic legal positivist does.
Although I don’t want to go so far as to say that a minimal religious test is necessary, I think that Penn and other founders recognized a connection between confession and vocation that we’re gunshy about recognizing. It’s not really a coincidence that the liberal Jews and (for now) the liberal Protestant on the Court are its strongest advocates of abortion “rights,” but dare we forbid them from holding office? The fact that a Wahhabi imam wouldn’t get past the Senate Judiciary Committee shows me there’s at least an informal test, where at least some of the Founders openly required one.