When John Paul Stevens announced his retirement on Friday, intense speculation began as to who President Obama would select to replace him. Would the president choose another woman, further decreasing the absurd gender imbalance of the Supreme Court? Would he opt to nominate the first Asian justice, the second Hispanic, the third African-American? Could he possibly consider an openly gay nominee? Amid the hubbub of identity politicking, however, one question did not receive the attention it deserves. Justice Stevens is the only Protestant currently serving on the Supreme Court; if Obama does not nominate one as his replacement, the Court will be without a Protestant for the first time in its history. In a nation where 76 percent of adults self-identify as Protestant, this would be a difficult proposition, if not outright wrong.
The notion that one’s worldview can only be understood by someone from the same demographics is a relic of our worst tribalist impulses and represents a rejection, at least in part, of the idea of a common humanity. While it is naïve to believe that this common humanity is not meaningfully delineated by circumstances that largely run along demographic lines, it is close-minded to say, for example, that someone needs to have been educated in a failing school in order to understand the education crisis. If anything, such thinking evinces a sort of soft bigotry of identity, as it carries with it the implication that members of groups other than one’s own cannot possibly understand one’s way of living.
To this end, support for a “groundbreaking” nominee like Pamela Karlan ’80 GRD ’84 LAW ’84 should not be predicated on the idea that she would have intrinsic affinity for the groups who she is seen to represent. Indeed, this notion runs contrary to our very conception of law. That is not to say, however, that a nomination like hers would not be significant. For the president to nominate Karlan would represent a profound institutional acceptance of members of a heretofore excluded group. To break a glass ceiling is self-justifying, an end one can hope to see realized for the fact of its realization more than for any tangible consequence it might have.
And yet, it would still be a mistake for the president to allow the Court to be without a Protestant justice. At present, six Catholics and two Jews sit on the bench with Stevens, meaning that 89 percent of the Court is drawn from demographics which together comprise only 26 percent of American society. To strive for a Court which “looks like America” is to support our best ideals; to exclude Protestants from the Court is to overreact to the fact that these ideals have not yet been realized.
While I do not believe that the absence of a Protestant judge should, or would, have a meaningful impact on the Court’s operation, it would certainly impact its perception. In America, we view our institutions as both functional and theoretical agents; they are understood both by what they do and by what they are. While one might argue that in an ideal country, the religion of a justice would not even be known, America’s actual history says otherwise. Since our inception, religious discourse has been central to our national identity, even if our religious identity is set apart from the national discourse. With this as a given, one cannot argue that neglecting to consider the religion of Stevens’ replacement is a neutral act.
It is not so much that we must have a Protestant interpreting the law, but that the body that interprets the law must feel representative to those whose lives it affects. When one can look at a controversial decision and dismiss it as a product of the thinking of certain religious groups within society, rather than of a microcosm of society itself, the legitimacy of the Court is diminished, and the social fabric of America weakened.
Certainly, religion is not the only factor that comes into play in this conversation. Tremendous problems still exist regarding the fact that the Court is made up entirely of justices elevated from the federal judiciary, with a narrow set of educational and professional experiences. But it is important, as we each advocate for our favorite potential nominee, that we realize that the sort of identity politics that characterizes Supreme Court nominations is healthy only insofar as it is a mechanism for inclusion, for a broadening of access. While Protestantism has not historically faced problems of access, access is most real when it is realized.
Ironically, the pluralist ideal for American society would be best advanced by keeping a Protestant on the United States Supreme Court.
Ilan Ben-Meir is a sophomore in Trumbull College.
April 14, 2010
An earlier version of this article misstated the percent of American adults that self-identify as Protestant; it is 52 percent, not 76 percent. In addition, the article misreported the number of Supreme Court justices who are Catholic; there are six, not five.