Obama pick would mean no Protestants on high court

President Barack Obama introduces Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House in Washington, Monday May 10, 2010 as Vice President Joe Biden applauds. President Barack Obama introduces Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House in Washington, Monday May 10, 2010 as Vice President Joe Biden applauds. (AP Photo/J. Scott Applewhite)
By Tom Breen
Associated Press Writer / May 11, 2010

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RALEIGH, N.C.—Nine justices, no Protestants.

If the Senate confirms Solicitor General Elena Kagan as the next Supreme Court justice, the result will be an anomaly in a country that has been dominated by Protestants since the Pilgrims.

Kagan, nominated Monday by President Barack Obama, would be the third Jewish justice, and would join six Roman Catholics on the court, meaning none of the justices would be rooted in the Protestant Reformation traditions that shaped the country from its earliest stages.

That could show Americans are far more accepting of religious diversity than they were a generation ago, when John F. Kennedy's presidential campaign was dogged by suspicions about his Catholic faith. But it also may be a sign of the approaching time when Protestants lose their majority status.

"I don't think this means Protestant America is over, but I do think it means the old way of thinking about Protestant America is over," said Stephen Prothero, a professor of religion at Boston University and author of "God Is Not One."

The possibility of a Supreme Court without Protestants is just a dramatic illustration of what observers of religion have known for years, Prothero said: that in a country where President John Adams could once say Roman Catholics were "as rare as a comet or an earthquake," Protestants have seen their share of the population dramatically shrink.

"The population is probably just over 50 percent Protestant," said Mark Chaves, a professor at Duke University who directs the National Congregations Study. "It's heading down, though, and any minute now it will probably drop below 50 percent."

Membership in "mainline" Protestant churches has been falling for decades, sapping the ranks of Episcopalians, Congregationalists, Presbyterians, Methodists, Lutherans and others who for years defined American mainstream religion.

In recent years, even Evangelical Protestant churches like the Southern Baptists, which grew while mainline churches faltered, have seen membership either stall or decline, says Tom Smith, director of the General Social Survey at the University of Chicago's National Opinion Research Center.

"Because the population is growing but their numbers are not, Protestants are, in effect, losing market share," Smith said.

Even that declining share of the population, though, doesn't make a ready explanation for the prospect of a court without any Protestants. Of 55 delegates to the Constitutional Convention in 1787, 53 were Protestant (two were Catholic). And 92 of the 112 Supreme Court justices in history have been Protestant. Fully half the Catholics ever confirmed to the court are currently serving on it.

"You'd predict Protestants would be either four or five based on their proportion of the population, but instead it looks like they'll be zero," Smith said. If confirmed, Kagan would replace Justice John Paul Stevens, a Protestant.

That's troubling if the court is supposed to reflect a diversity of opinion, says Baylor Law School Professor Mark Osler.

"There's an important part of our population that's not represented here," Osler said. "We have to recognize that faith plays into the development of conscience in the same manner that race and gender do, and perhaps more so."

As an example, Osler says cases involving the Fourth Amendment to the Constitution frequently involve justices asking whether actions of a party in a legal case "shock the conscience."

"Conscience is something that's developed, for many of us, in the context of faith," he said. "When you're asking that question, it's particularly important that you have a diversity of faiths."

There's no single factor that accounts for the disproportionate share of Catholics and Jews on the court, given that the eight non-Protestant justices were appointed over a period of 23 years by five different presidents.

Ideological affinity, along with categories like race and gender, seem to have played a greater role than religious affiliation.

"I think it's an accident of history," Osler said. "Presidents have been looking for other types of diversity."

A Kagan confirmation would spell at least the temporary end of a Protestant presence on the court, but Protestants will continue to wield significant influence in American life.

Protestants still make up roughly 55 percent of Congress, according to the Pew Forum on Religious and Public Life. And 50 years after his election, John Kennedy remains the only U.S. president without a Protestant background.

Beyond that, there exists the lingering influence of the country's Protestant heritage, from the Massachusetts Bay Colony to the authors of the Constitution and beyond.

"In many ways this is not just a Protestant country, but a Puritan country," Prothero said, referring to some early Protestants. "Protestants have outsized influence over the way we think in ways that are very subtle."