A Supreme Court without Protestants

For most of American history, Protestant justices have dominated the U.S. Supreme Court. Yet when Justice John Paul Stevens retires this summer, he will leave the Court without any Protestant justice at all for the first time in its history, the Chicago Tribune recently reported.

Much the same phenomenon has occurred in other sectors of society. Prior to 1970, for example, none of the eight Ivy League colleges had ever had a president who was not a white male Protestant. By 1995 none of the eight Ivy League presidents was a white male Protestant. Penn's last three presidents, for goodness sake, have not only been Jewish, but Jewish women.

That's the sort of problem that rears its ugly head when you stop choosing people on the basis of background and pick them on merit instead. It just opens the floodgates.

Some people think John Paul Stevens retired because he's 90 years old, but you and I know better: He just couldn't keep up with the level of erudition among his Catholic and Jewish colleagues. After Rehnquist died, he had nobody to talk to!

Protestant pros and cons

But to get back to the prospect of a Supreme Court without Protestants— I know what you're thinking: The Thirty Years' War. The Salem witch trials. The Boston Massacre. The Know-Nothing riots. The Ku Klux Klan. Bleeding Ireland. The British Raj in India. Jonestown. Good riddance, you say!

Yet notwithstanding the lawlessness and bloodshed that Protestants have provoked ever since Martin Luther first violated private property by nailing his theses to the door of somebody else's church, President Obama is coming under pressure to replace Stevens with a Protestant justice, on the ground that Protestants still account for roughly half of America's population.

Without Protestant representation on the Court, argues Pepperdine University law professor Mark Scarberry, "you could have an undermining of confidence in the court, a sense of a lack of participation." I feel much the same way about the shortage of Jewish and Asian players on the Eagles.

The best cooks

An African-American reader voiced a similar concern a few years ago when I edited a restaurant guide for Philadelphia Style magazine. Blacks comprise 40% of Philadelphia's population, he noted, yet my list of "Philadelphia's 150 best restaurants" included only one place that served soul food.

I replied that four of Philadelphia's largest demographic groups— blacks, Irish, Jews and WASPs— have many things to be proud of, but culinary excellence isn't among them. Conversely, four of Philadelphia's smallest demographic groups— the French, Chinese, Japanese and Thais— can't seem to cook a bad meal.

Every ethnic group, by virtue of its traditions, has its strengths and weaknesses. Some consistently produce great cooks. Some churn out great musicians. Some make great engineers. Some breed great fox hunters. Can you see where I'm going with this?

Who staffed the newspapers?

The Supreme Court currently numbers six Catholics and two Jews, even though Catholics comprise barely 20% of the population and Jews less than 2%. That reminds me of an astute observation made by the journalist George Murray in The Madhouse On Madison Street, his loving 1965 memoir of the Hearst chain's wretched old Chicago Herald-Examiner. Through the first half of the 20th Century, Murray remarked, the newsrooms of most urban daily newspapers were staffed by members of two ethnic groups that had little else in common: the Irish and the Jews.

Actually, the Irish and the Jews did share a few common characteristics: Both were upwardly mobile immigrant groups with long histories of persecution as well as inbred literary inclinations. As underdogs, they had to try harder than the WASPs who ran the country, and in the process they kept their blades sharper. When opportunities opened up, they seized them— first on newspapers, then as college presidents, and now as Supreme Court justices.

Queen Elizabeth weighs in

This whole discussion of Protestants on the Supreme Court has been necessarily muted because, after all, religion is supposed to be a private personal matter. As that great Protestant monarch Elizabeth I put it— around the time she sent the Catholic Mary Queen of Scots to the block— "I will have no windows into men's souls."

But in fact religion does matter: Unlike, say, race, ethnicity or gender, one's choice of religion provides a window into how one explains the universe— a significant consideration in the choice of a Supreme Court justice. A judge's religion is irrelevant only if it can be shown that religion isn't really a matter of choice, or that all faiths are equally nutty and irrational (which may indeed be the case).

But if Protestants can't compete with Catholics and Jews, you ask, what are they to do? If they can't find work on newspapers, or as college presidents, or even as Supreme Court justices, how will they support themselves? And if God no longer favors Protestants, why did He make so many of them?

Ah, but surely you know the punch line: Somebody has to pay retail!♦


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