April 22, 2010
The Supreme Court and the Transformation of Demographic Priorities
— Barbra Barnett
As Martin Marty discussed in last Monday’s Sightings, John Paul Stevens is currently the only Protestant jurist on the United States Supreme Court and he has announced his retirement at the end of the current term. Of the eight remaining justices, six identify as Roman Catholic and two as Jewish. Some court watchers are gearing up for battle over the religious affiliation of the President’s next nominee to the court. Those who openly voice their fear that there may not be a single Protestant justice on the court argue that the particular worldview of a large swath of the nation will no longer have a sympathetic ear on the bench. As Marty notes, this grievance begs the question: Given the diversity within American Protestantism, is there a common Protestant worldview that could be represented by a member of one Protestant denomination, and if so, from which one? But rather than try to divine how President Obama could choose a nominee to appease a fractious nation, we might consider what the current (and future) makeup of the Supreme Court says about American religious history.
The composition of the Supreme Court tells a remarkable story of how members of once-marginalized groups have come to be accepted as members of mainstream American life. The U.S. Constitution clearly states that there will be no religious tests for office. But until fairly recently in American history the Supreme Court has been overwhelmingly Protestant. For the nation’s first two generations all members of the court of last resort in the land were Protestant. In 1836 Justice Roger Taney joined the court as its first Catholic member. But while Taney presided over the court, anti-immigrant, anti-Catholic sentiments flared across the country in nativist movements that erupted into violent attacks on Catholics and Catholic institutions, and spawned local and national political parties with explicitly anti-Catholic platforms. For thirty years after Taney the court was again entirely Protestant until the appointment of Edward Douglas White. But in the nineteenth century, the most important criterion for “diversity” on the bench was not religious but geographic, ensuring that justices represented the interests of northern, southern, northeastern, midwestern, and western states. Taney and White were both Catholic, but they were also both southerners, which was a far more significant factor in their day.
The role of religion in the Supreme Court nomination process rose in significance in the early twentieth century, when the nation began to expect a “Catholic seat” and then also a “Jewish seat” on the court. This practice was perhaps not wholly embraced. The nomination of the first Jewish Justice, Louis Brandeis, was bitterly contested and an anti-Semitic colleague refused to speak to him throughout his tenure on the bench. Anti-Catholic sentiments were also still common in the early part of the twentieth century. However, despite the nation’s uneasy relationship with its Catholic and Jewish citizens, the practice of having one Jewish and one Catholic Supreme Court justice continued more or less from 1916 until Richard Nixon broke with tradition in 1972.
By then the nation’s demographic and representational priorities had changed. In 1967, Justice Thurgood Marshall became the first African-American to join the court and in 1981 Justice Sandra Day O’Connor became the first woman to do the same. Today we tend not to view the religious views of a nominee as being definitional in the same ways that we see race, gender, ethnicity and class, as is clear from Justice Sotomayor’s “wise, Latina woman” comment. She did not describe herself as a “wise, Catholic, Latina woman.” We understand that religion plays an important role in individual formation, but other factors contribute as well. Ethnicity and gender now warrant a mention in describing ourselves and our worldview. From the Court’s earliest days until today we can trace a transformation of our demographic priorities. In the early period, American identity politics were cast primarily in terms of geographic balancing. As religious minorities claimed their right to equal participation in American life, Court membership needed to reflect this religious diversity. But religion again appears to be taking a backseat to other demographic factors.
Today, religious affiliation is not the only or even the main criterion for determining a jurist’s understanding of the Constitution or vision of justice and the law. In 1985, when asked about the future of maintaining a Catholic seat on the Supreme Court, Catholic jurist William Brennan remarked that in fifty years’ time “no one will care about these things.” Perhaps that time has come.
Barbra Barnett has a PhD in Ethics from the University of Chicago Divinity School and teaches at Elmhurst College.