The Post-Protestant Supreme Court

Justice John Paul Stevens, described in media reports as the last remaining Protestant on the Supreme Court, announced Friday that he would retire.

In 2006, the court began to have a Catholic majority. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito tend to fall on the conservative side of the court compared to fellow Catholic Justices Sonya Sotomayor and Anthony Kennedy. Justices Ruth Bader Ginsburg and Stephen Breyer are Jewish.

“If religion is a factor, it’s not going to be in the top five by any means,” said Carl Esbeck, a law professor at the University of Missouri. “That said, one’s religious faith or absence thereof says a lot about your worldview, which affects your work. You want a variety of worldviews on the court.”

Non-evangelicals have done much of the heavy hitting for evangelicals in the law, said Notre Dame history professor Mark Noll. “Witness intense evangelical support for the George W. Bush Catholic nominees to the Supreme Court,” Noll said.

Institutions historically founded by Protestants have well-regarded law schools, such as Northwestern, Duke, Vanderbilt, and Emory.

“But how much Protestantism is left in those law schools? Catholics have law schools ranked in the top 30: Boston College, Georgetown, and Notre Dame, where something distinctively Catholic remains in each one,” Noll said. “Clearly, the day when the higher levels of American public life were reflexively Protestant, near-Protestant, or humanistic with a Protestant tinge are past.”

Christian groups often voice concern on how the high court could rule on cases related to abortion or religious freedom.

“For those who care about religious freedom, you want a fair number of justices to understand religion,” Esbeck said. “If you don’t value religious liberty, you’re going to not weigh religious freedom in the face of some counter policy like non-discrimination or national security.”

Stevens advocated for a strict separation between church and state, as argued in his dissent from a 2002 decision upholding a voucher program that allowed students to attend private religious schools.

“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundations of our democracy,” Stevens wrote.

National Public Radio reports that potential candidates for the open seat include Solicitor General Elena Kagan and federal judge Merrick Garland, both Jewish, as well as Michigan Governor Jennifer Granholm, who is Catholic, and federal judge Diane Wood, who is Protestant.

The Pew Forum on Religion & Public Life’s “Religious Landscape Survey” suggests that the country is about 51 percent Protestant, 24 percent Catholic, and 1.7 percent Jewish.

“I don’t think a person’s religious affiliation matters as much as their judicial philosophy,” said Mathew Staver, dean of Liberty University law school. “The rule of law is not to push an agenda.”

“I don’t think we would be fooled if President Obama picks someone with a Protestant affiliation,” Staver said. “It’s nice to have diversity, but the law is color blind and your skin color or religious affiliation shouldn’t be reflective of your decisions.”

Retired Supreme Court justice Sandra Day O’Connor told the Associated Press earlier this week that the high court should have more diversity.

“I think that religion should not be the basis for an appointment, but if that were the case, one would expect somewhere in the nine to see a Protestant or two,” she said. “You’ll probably see someone eventually.”

In a 2009 speech, Alito complained about “respectable people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs.”

“There has been so much talk lately about the number of Catholics serving on the Supreme Court,” Alito said. “This is one of those questions that does not die.”