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Is a Supreme Court Without Protestants a Bad Thing?

Debates over whether Protestants are properly represented on the Supreme Court in light of John Paul Stevens’ retirement is laughable when you examine how little other marginalized groups are represented.

In this Sept. 29, 2009 photo, Associate Justice John Paul Stevens sits for a group photograph at the Supreme Court in Washington. Stevens, the court’s oldest member and leader of its liberal bloc, announced Friday, April 9, 2010 he is retiring, saying he will step down when the court finishes its work for the summer in late June or early July. (AP Photo/Charles Dharapak)

Justice John Paul Stevens’ recent decision to step down from the Supreme Court has led to a barrage of commentary on how to make an institution still dominated by straight white men more diverse. But instead of the typical discussions about race, gender, and class, another category has been highlighted uniquely for this appointment: religion. Stevens is currently the only Protestant on the court—six justices are Catholics, while Justices Ruth Bader Ginsberg and Stephen Breyer are Jewish—and if one of the many non-Protestant candidates shortlisted for the seat are confirmed, for example, Solicitor General Elena Kagan or D.C. Circuit Judge Merrick Garland, who are both Jewish, the Supreme Court would be devoid of Protestants for the first time in its history.

As an Episcopalian, I find the rather breathless coverage of this fact perplexing. Even without a seat on the court, its jurisprudence is still overwhelmingly shaped by the rulings and opinions of Protestants. Eighty-nine of the 111 Supreme Court justices in U.S. history, or over 80 percent, have been Protestants of one variety or another. Given the importance of precedent in Supreme Court decision-making, the decisions of these Protestants still weigh heavily on the present court, whether or not it has Protestant members itself.

This representation could be a good thing, given that Protestantism is still the majority religion in America. However, the Protestant denominations represented on the court bear little resemblance to the ones that currently dominate American religious life. There are a little over 2 million Episcopalians in America, representing less than one percent of the population, but we claim 35 justices, or 31 percent of the total. Similarly, the Unitarian Universalist Association claims just 221,367 members today [PDF], but ten Unitarians have served on the Court. By contrast, the top three Baptist conventions in the US claim almost 25 million members, or about 8 percent of the population; a mere three justices, or 2.7 percent, have been Baptists. The Protestant domination of past courts, then, is hardly representative of the America those courts’ rulings still affect.

More to the point, worrying about the number of Protestants on the court reflects a misunderstanding of the value of diversity in judicial institutions. We should be interested in having a diverse court because of the diverse backgrounds and experiences its members can draw upon. The Warren court’s landmark civil rights decisions during the 1950s and ’60s provide a good illustration of this.

The court’s majority was composed of men from marginal backgrounds, who brought a new empathy for less empowered parties in decisions. Warren himself, along with William O. Douglas, had grown up in grinding poverty. William Brennan was the son of a union leader who rose from nothing, and Arthur Goldberg advocated for working people for decades in the labor movement before his appointment. Most notably, Thurgood Marshall overcame institutional racism—including when the University of Maryland law school’s refused him because they refused to admit black students—to reach the court. As a result, the Warren court had justices able to understand experiences with which justices bred in comfort and privilege would be less able to empathize.

The most relevant current issue that diversity could play out is on LGBT issues. It is clear how, say, an openly gay, lesbian, or bisexual justice would bring the sort of empathy to rights in the ways that the majority on the Warren court did. In particular, the legal careers of Pam Karlan and Kathleen Sullivan, the Stanford law professors most commonly mentioned as LGBT contenders for the court, show a keen sense of how gay, lesbian, and bi perspectives are excluded from judicial decision-making. Both were closely involved in Bowers v. Hardwick, the 1986 decision declaring that laws banning consensual gay sex are constitutional. Sullivan worked as counsel for Hardwick, the gay man contesting Georgia’s sodomy ban, while Karlan, at the time a clerk for Justice Harry Blackmun, ghostwrote the dissenting opinion in the case.

Justice Lewis Powell, the man who cast the last-minute deciding vote in the 5-4 decision, stated during deliberation that he had never met a homosexual, not realizing that one of his own clerks that session was gay. Such knowledge of the personal experiences would not be lost on Karlan or Sullivan should they become justices themselves. In their cases, the diversity they add to the court will come with relevant experiences that make them better, and more informed justices.

Similarly, appointing a woman of color to the court would bring experiences of the persistence of racism, experiences that white men simply have not had. Leah Ward Sears, a former chief justice of the Georgia Supreme Court who is on Obama’s shortlist for Stevens’ seat, has written about her experience as a black woman in the Atlanta legal world, noting that as recently as ten years ago, she was assumed to be a cocktail waitress or attendant at parties. In cases concerning affirmative action or racial discrimination, it is hard not to see how knowledge of the stereotyping and marginalization of women of color would help the court’s decision-making.

It’s hard to think of what the equivalent value added from a Protestant justice would be. The legal system does not confront us with hardships to which no Catholic, Jewish, Mormon, or Muslim justice could relate. We have few experiences of discrimination outside of the law do we have that would inform the Court’s decision-making. Protestantism is America’s majority religion, practiced by the traditional powerful elite in and outside of government, and therefore the idea of Protestant marginalization—as a phenomenon comparable to LGBT, black, or female subjugation—are laughable. To be Protestant in America is to be privileged, and that means a practitioner of that religion treated as the default. Our experiences aren’t ignored when judges consider the law apart from the particular groups it affects. Tea-party fretting about the oppressed white Christian majority to the contrary, we’re faring quite well. The notion, then, that Protestants need a representative on the court is nonsense. We have already affected the course of American law more than is warranted.

Dylan Matthews is a student at Harvard University. He works part-time at the Washington Post.

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