If Elena Kagan, President Obama's nominee to the Supreme Court, is confirmed, the nation's high court will be, for the first time in its history, devoid of Protestants. Kagan is Jewish, as are Justices Stephen Breyer and Ruth Bader Ginsburg. All of the other justices—Chief Justice John Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Sonia Sotomayor—are Catholic. How did this situation come about in a historically Protestant-dominated country? And should evangelicals be concerned?
It's important to note that the composition of the Supreme Court has never reflected the composition of the country. All justices were white until the appointment of Thurgood Marshall in 1967, and all justices were male until the appointment of Sandra Day O'Connor in 1981. When President Andrew Jackson appointed the court's first Catholic member, Roger Taney, in 1836, the Roman Catholic Church was already well on its way to becoming the country's largest single Christian body. Most justices have also shared connections to a small group of elite schools. Harvard Law School trained the highest number, 14 justices, including five members of the current court. (Justice Ginsburg attended HLS but graduated from Columbia.) Kagan, a graduate and former dean of HLS, would make a sixth.
Throughout the court's history, some groups—notably Episcopalians, Presbyterians, Unitarians, and Jews—have been significantly overrepresented in comparison to their prevalence in the American population, while other groups have been significantly underrepresented. Though Baptists constitute the country's largest Protestant group, there have been just three Baptist justices. The second-largest Protestant group, Methodists, have supplied only five. There has never been a Pentecostal justice, despite that movement's explosive growth since the Azusa Street Revival of 1906.
The mismatch between Supreme Court members and average Americans is in part an example of the generally non-representational nature of elites, even in the supposedly egalitarian United States. From the late eighteenth to the middle of the twentieth century, a white Protestant establishment held sway, as Congregationalists (the heirs of the New England Puritans), Episcopalians, and Presbyterians pretty much ran the country and the rest of America's Christians pretty much let them. Unitarians, who controlled Harvard, got to participate heavily in governance as well, despite the fact that most Americans considered them heretics. The revivalist traditions that caught fire in the nineteenth century, including Baptists, Methodists, and Disciples of Christ, rapidly outstripped the establishment churches in membership but never overtook them in terms of cultural power. Evangelicals, for the most part descendents of the revivalists, have enjoyed even less access to the country's most exclusive halls of power, including the Supreme Court, the Senate, and the presidential offices at Ivy League universities.
The makeup of the current Supreme Court also reflects trends peculiar to jurisprudence. Judaism and Catholicism have extremely long and rich legal traditions, while Protestantism generally, and evangelicalism specifically, does not. American Jewish legal thinking has aligned well with liberal politics, which helps explain why all but one of the seven (soon, potentially, eight) Jewish Supreme Court justices have been nominated by Democratic presidents. American Catholic legal thinking has not aligned so closely with either political party, but Catholic teachings on Natural Law and the sanctity of life have made conservative Catholic nominees particularly attractive to Republican presidents who oppose abortion. As Robert Wuthnow argued in The Restructuring of American Religion, conservative Protestants have consistently made common cause with conservative Catholics on the subject of abortion in recent decades, nearly to the point of erasing centuries-old antipathies between these two branches of Christianity. The evangelical electorate might prefer to see one of their own on the high court, but they have had no problem supporting the current crop of conservative Catholic justices.