Did you know that as the Supreme Court currently stands, every Justice is either Roman Catholic or Jewish? Assuming Amy Coney Barrett is approved and sworn in, a Catholic Justice will replace former Justice Ruth Bader Ginsburg who was Jewish, and even if Merrick Garland (who was Jewish) had been approved back 2016, in both cases this streak would have survived. The last two Justices to vacate the Court were Anthony Kennedy and Antonin Scalia, both Roman Catholic. The last Protestant to serve on the Court was John Paul Stevens who left the Court in 2010.
Has anyone ever wondered why this is? Furthermore, as a Lutheran pastor, should I be offended or even worried at this historical trend? Where are the Evangelicals on the Court? Does this mean my worldview is going unrepresented? For that matter, what about the Agnostics and Atheists? Surely between the two of them, shouldn’t one-ninth of the American population be represented on the Supreme Court? Is there some kind of Old Religion cabal in D.C., or is it that there something inherent to these two faiths that produces Supreme Court Justices at such a high rate? After all, between the two creeds, only 25% of Americans identify as either Roman Catholic or Jewish, so how is it that they fill 100% of the Supreme Court’s seats? Here are my best guesses.
This Is About Harvard and Yale More Than Faith
Before Barrett’s nomination and presumptive approval, every Justice had a pedigree that included either Harvard or Yale; Barrett can “only” boast a Notre Dame degree. No offense to our church members who are Fighting Eli or Harvard Pilgrims alums, but that stat alone is more jarring than the limited faith traditions of the Justices. It speaks to the relatively narrow corridors of opportunity among the politically elite, the kind of backstage pass that only a select few will ever be able to possess.
In the past, I accepted this fact on the grounds that both schools possessed reputations for the highest academic pedigrees in America. However, as many academic institutions now have little tolerance for certain ideological points-of-view, I have a more cynical view that the dominance of Harvard and Yale among Supreme Court Justices is more about shared experiences and networks. “Oh, I see you went to Harvard. You’re one of us.” (Harvard, Yale, and Stanford produce more members of the House and Senate than any other schools, too.)
Not All Religious Commitments Are Equal
In addition to the influence of one’s Alma Mater, in today’s current climate, to merely say that one is Jewish or Roman Catholic is pretty much meaningless, since Justices who have a shared faith can come down on completely different sides of the law. Sonia Sotomayor is Roman Catholic, but she is as far removed from Scalia’s jurisprudence as can be imagined. Other examples abound.
Only conservative Roman Catholics will admit and confront the reality that within the Roman Catholic Church there are widely divergent factions and worldviews. Far from being saved by a Magisterium, Rome, including her own Pope these days, fields a huge number of conflicting views. Yes, I know they will argue that they hold fast on the core doctrines and that the Pope has only spoken ex cathedra twice, etc. But if one is Jewish or Roman Catholic “in name only”, they may as well be rightly considered Secularist, Atheists, Agnostic, or some other “ist.” I mean, can we really say that Nancy Pelosi or Joe Biden are in any way observant Catholics when they defend abortion as they do? Traditional Catholics agree with me when I answer “No.”
The same is true of Judaism. Liberal or Reformed Judaism has virtually nothing in common with Orthodox Judaism. As one of my friends recently told me, he is, like many of the Jews he knows, an “atheist Jew.” Judaism has for centuries straddled the line of religious commitments and ethnic identity, so it is quite possible that you can rightly be called a Jew and yet either never practice the faith or water it down so that it is virtually unrecognizable, as many Mainline Protestants have done.
Judeo-Christianity Gave Us Common Law and the Separation of Church and State
Still, even with those two caveats, we are talking about 25% of America’s religious identities holding 100% of the seats. Why? It must be because of the deep and historic relationship to the Law that you find in both traditions. The Bible gifted the world with an understanding of Law that has blessed those who have observed it. Rooted in the objective nature of God, God’s Law – even the Old Testament Law – stands as a bulwark of truth, justice, and mercy. From this Law, the West has inherited a “common law” tradition, which relies on case law and precedent. We also inherited a distinction between Church and State, which granted has at times been overplayed by extreme secularists, but which has nonetheless given rise to fascinating and challenging legal issues that the intellectually-curious and historically-minded find attractive.
Though not unequivocally, the Bible served as the standard against which cases should be judged. While we can eat pork because the ceremonial law of the Old Testament had been fulfilled in Christ, there are moral offenses against God and neighbor found in the Bible that are offered as examples from which laws have been written or cases have been judged. With each successive case, a precedent is set and that law is usually codified. (Of course, precedent can be reversed as it was in the cases of Dred Scott v. Sandford and Plessy v. Ferguson. Hopefully, the same will take place with Roe v. Wade.)
This is a theory and practice of law that is in marked contrast with other faith and social traditions, such as Islam which has Sharia Law as its legal standard. I would argue then that it is our country's Judeo-Christian traditions that provides the reasoning behind our own legal tradition, and therefore it makes sense that those who come from the more ancient versions of those traditions might intuitively defend that tradition.
If there is one thing that both Judaism and Roman Catholicism have going for them, it is a shared sense of history. Evangelicals think a meaningful religious history began with Billy Graham or at best in 1517. There just isn’t an equivalent long view of history in Evangelical circles, and we can see this in their music, architecture, and teaching. It is always contemporary or “on trend”. Are the buildings designed with history in mind? Are Church Father’s quoted? Do their religious narrative and systemic beliefs go back centuries or basically a few years or maybe even a few months? No.
It is impossible for me to imagine true disciples of Steven Furtick or Joel Osteen seeking the kind of life that would lead to some of the most rigorous work of legal discernment imaginable. All that matters to most Evangelicals is what is happening now, and it is that pattern of thinking that precludes the kind of work that is literally built on centuries of ideas, writings, and influences. That’s not to say that Evangelicals can’t or don’t do that kind of work now, but there are probably not the numbers en masse to filter upwards all the way to the Supreme Court.
So, Should Protestants be Offended?
Because there is more to the dominance of Catholic and Jewish thought on the Supreme Court than mere religious confession, I don’t think so. Likewise, observant Jews and Catholics can and certainly do protect the interests of Protestants. Sometimes, even the liberals agree with our causes! Ideally though, since it is the role of a Supreme Court Justice to interpret the Constitution, their background shouldn’t really matter. But as it is more common in the age of literary deconstruction to reimagine the Constitution, backgrounds do matter. In most matters, I would prefer a practicing Roman Catholic with an Originalist understanding of the Constitution over a progressive theist of any stripe.
In the end, what matters is whether words have meaning that transcend time? Or can they be deconstructed to mean something else? Is there an unflinching moral core in the heart of a Justice that can be appealed to in order to defend something as fragile as a civil society? Does the Bible possess and clearly communicate eternal truths that should influence our social life? If your answers are yes, no, yes, and yes, I want you on the court, regardless of your religious tradition. I suppose it is sad that Evangelical churches and universities are not producing the kinds of minds that work their way into the court systems. But it is nowhere near the kind of tragic results that progressive or “liberal” views have imposed on our society through the courts.
Photo Credit- Supreme Court.gov