Stevens, the Only Protestant on the Supreme Court
April 10th, 2010
By ADAM LIPTAK
Doug Mills/The New York Times
But Justice Stevens cuts a lone figure on the current court in one demographic category: He is the only Protestant.
His retirement, which was announced on Friday, makes possible something that would have been unimaginable a generation or two ago — a court without a single member of the nation’s majority religion.
“The practical reality of life in America is that religion plays much less of a role in everyday life than it did 50 or 100 years ago,” said Geoffrey R. Stone, a law professor at the University of Chicago. Adding a Protestant to the court, he said, would not bring an important element to its discussions.
“These days,” said Lee Epstein, a law professor at Northwestern and an authority on the court, “we’ve moved to other sources of diversity,” including race, gender and ethnicity.
That move reflects a profound shift in the way we think about law, and in the very meaning of identity politics.
On the one hand, the job of Supreme Court justice now seems to require a very specific set of qualifications. Except for Justice Stevens, all the current justices attended law school at Harvard or Yale.
Like Justice Stevens, all served on federal appeals courts before their appointments, in a break from the historical practice of including leading lawyers and politicians in the mix. And all members of the current court, except for Justice Stevens and Justice Anthony M. Kennedy, were elevated from appeals courts in the Boston-to-Washington corridor.
On the other hand, society seems to demand that the court carry a certain demographic mix.
It is hard to imagine the court without a black justice, for instance, and it may well turn out that Justice Sonia Sotomayor is sitting in a new “Hispanic seat.” It would surprise no one if President Obama tried to increase the number of women on the court to three. Not so long ago, there was similar casual talk, but of a “Catholic seat” or a “Jewish seat” on the Supreme Court. Today, the court is made up of six Roman Catholics, two Jews and Justice Stevens.
It was not ever thus. Presidents once looked at two main factors in picking justices.
“Historically, religion was huge,” said Professor Epstein of Northwestern. “It was up there with geography as the key factor.”
There is, for instance, no official photograph of the justices from 1924. The court had to cancel its portrait that year because Justice James C. McReynolds, an anti-Semite and a racist, refused to sit next to Justice Louis D. Brandeis, the first Jewish justice.
But when Justice Abe Fortas resigned in 1969 from what was considered the “Jewish seat,” President Richard M. Nixon saw no political gain from replacing him with another Jew, settling instead on Harry A. Blackmun, a Methodist.
As that progression suggests, religion, which once mattered deeply, has fallen out of the conversation. And it seems to make people uncomfortable on the rare occasions it is raised.
Professor Stone, of the University of Chicago, learned this in 2007 when he wrote an opinion article in The Chicago Tribune after the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart.
“Here is a painfully awkward observation: All five justices in the majority in Gonzales are Roman Catholic,” Professor Stone wrote. “The four justices who are not all followed clear and settled precedent.”
“Given the nature of the issue, the strength of the relevant precedent, and the inadequacy of the court’s reasoning, the question” of religion, he went on, “is too obvious to ignore.”
Professor Stone said he was surprised by the vehement criticism that followed. Catholics in particular, he recalled in an interview, said the religion of the justices should be off limits.
One Catholic, Justice Antonin Scalia, was especially furious about the questions raised in Professor Stone’s article.
“I had been pleased and sort of proud that Americans didn’t pay attention” to religion, he said in an interview with Joan Biskupic for her recent biography of him, “American Original.” “It isn’t religion that divides us anymore.”
Professor Stone’s article, he said, was “a damn lie,” adding that “it got me so mad that I will not appear at the University of Chicago until he is no longer on the faculty.”
The short list of candidates to succeed Justice Stevens includes two Jews, Solicitor General Elena Kagan and Judge Merrick B. Garland of the United States Court of Appeals for the District of Columbia Circuit, and one Protestant, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, in Chicago.
But it is unlikely that religious affiliation will play a meaningful role in the decision making. Justice Ruth Bader Ginsburg has said that society is past worrying about a nominee’s religious affiliations.
“No one regarded Ginsburg and Breyer as filling a Jewish seat,” she said of herself and Justice Stephen G. Breyer in a 2003 speech at the Brandeis School of Law in Louisville, Ky. “Both of us take pride in and draw strength from our heritage, but our religion simply was not relevant to President Clinton’s appointment.”
For his part, Professor Stone said there were ways a justice’s religious affiliation could have an impact on the court. President Obama, for instance, could nominate an evangelical Christian.
Mark Tushnet, a law professor at Harvard, had another suggestion.
President Obama, he said, could use Justice Stevens’s retirement as an opportunity both to honor tradition and to break new ground.
“The smartest political move,” he said, “would be to nominate an openly gay, Protestant guy.”