| by J. Terry Todd Media chatter about the Supreme Court's religious composition ramped up this week in the wake of President Obama's nomination of Elena Kagan to fill the vacancy on the bench when Justice John Paul Stevens retires this summer. On mainstream news outlets and in the blogosphere, legal experts and religion professors rushed to explain the significance of the fact that Kagan's confirmation would leave six Catholics and three Jews on the bench – and no Protestants.
"Religion used to be the most important consideration for the court," George Washington University Professor of Law Jeffrey Rosen told ABCNews.com, "it's a fascinating truth that we've allowed religion to drop out of consideration on the Supreme Court, and right now, we have a Supreme Court that religiously at least, by no means looks like America."
If the Court is to reflect diversity of opinion, Baylor Law School Professor Mark Osler said in Tom Breen's AP story on the Court's religious composition, "There's an important part of our population that's not represented here." Osler went on to say, "We have to recognize that faith plays into the development of conscience in the same manner that race and gender do, and perhaps more so."
Boston University religion professor Stephen Prothero expressed something similar when he told the Boston Globe, "We think through ethics and law in our lives, whether we are Supreme Court justices or not, in light of our backgrounds and religious commitments," Prothero said. "And I think it's a pity to have only two religious traditions represented on the court
All of this crystallized for me on the religion page at the Huffington Post, where Diana Butler Bass offered a "lament" over the loss of the "lived memory of American Protestantism" on the Court. It's not the lack of representation that troubles Bass, only the fact that the Court won't have someone with "Protestant sensibilities" on the bench.
My first thought about all of this somewhat self-important hand-wringing? Don't worry. Like Sonia Sotomayor and Samuel Alito, Kagan went to Princeton, where I'm sure she (like they) absorbed enough "Protestant sensibility" to last a lifetime.
In the rear-view mirror of history, the fact that no Protestant will sit on the Supreme Court, at least in the short term, is remarkable. It wasn't so long ago that the Court was seen as one of the last bastions of (white and male) Protestant privilege, with some justices holding on rather anxiously as the ground shifted under their feet. A story from the 1947 Everson case on public funding for parochial schools illustrates the point. According to Donald Drakeman's recent Church, State, and Original Intent, during oral arguments in the Everson case, Justice William O. Douglas passed a note down the bench to fellow Justice Hugo Black that read, "If the Catholics get public money to finance their religious schools, we better insist on getting some good prayers in public schools or we Protestants are out of business."
Protestants are in no danger of going out of business in the U.S., even if a Protestant won't show up to work on the bench at the High Court anytime soon. Amid all this chatter, there's been little attention to what a Protestant really is these days – except for some of the broader reflections in Bass' lament. Nor is there much truly thoughtful analysis of history. Protestants have always been a contentious, infighting and spiritually eclectic bunch. Over the centuries, the result of the Reformers' throwing off the papal yoke has been a dramatically de-centered, perpetually evolving family of movements.
So even if there were a Protestant seat on the Court, who would hold it? A gay Episcopalian? A Korean Presbyterian? A Methodist who does Zen meditation or a Southern Baptist who would have more in common with the Court's conservative Catholic bloc than, say, a Quaker when it comes to adjudicating on social issues?
Religion – and particularly Protestantism – plays just as prominent a role in American public life as it ever did, only in different ways and in different configurations. As the coverage of Kagan's nomination intensifies over the next several months, journalists (as well as academics like me) will have plenty of opportunities to examine the interplay between politics and religion in the U.S. Somehow I doubt any of us will find that the Protestant influence on our culture has really, truly gone missing.
J. Terry Todd is Associate Professor of American Religious Studies at Drew University and director of Drew's Center on Religion, Culture & Conflict. The author of many articles on religion in 20th-century America, Terry is especially interested in religious conflicts over family life and sexuality, and how Christian ideas and practices shape U.S. politics and mass media.
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