By Heather Hahn

May 12, 2010

Of the 111 justices who have served on the U.S. Supreme Court, 91 have been Protestant. But if Solicitor General Elena Kagan is confirmed as the 112th justice, no Protestants will sit on the nation's highest court for the first time in history.

Kagan, who is Jewish, would join a bench that already includes six Catholics and two Jews.

The good news is that it's a significant turning point in a country where Catholics and Jews have faced centuries of discrimination because of their faith.

For some observers, the news is also bittersweet because a tradition of influential Protestant voices that has included United Methodist Justice Harry Blackmun will be missing from the court.

"Certainly, prejudice against Roman Catholics and Jews has been greatly reduced in recent decades, and we can and should be thankful for that fact. I seriously doubt the vast majority of Americans are concerned about the religious background of Supreme Court justices," said Jim Winkler, the top executive of the United Methodist Board of Church and Society.

"Nevertheless, I hope President Obama will give serious consideration when making future appointments to the court to naming a Protestant. Balance on the court is important," he said.

Transcending quotas

At one time, presidents would determine who was best to fill an unofficial "Catholic seat" or "Jewish seat" on the bench.

Religious diversity has not always been easy. Justice Louis Brandeis received a chilly reception when he became the first Jew appointed to the U.S. Supreme Court in 1916. Fellow Justice James C. McReynolds refused to shake the hand of or even speak to Brandeis for his first three years on the court and likewise shunned Justice Benjamin Cardozo, the court's second Jewish justice.

If Kagan is confirmed, as expected, she will join fellow Jews Ruth Bader Ginsburg and Stephen Breyer. Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor are all Catholics.

Blackmun, who served from 1970 to 1994, was the most recent United Methodist to serve on the high court. Four other members of the United Methodist Church's predecessor churches served on the court. They included John McLean, who served 1830-61; Lucius Q.C. Lamar, 1888-93; Frederick Vinson, 1946-53; and Charles Whittaker, 1957-62

Does it matter if the court no longer has any Protestant justices?

Not much, say some observers.

"It sounds obvious, but I think the court is a court of law and the justices' job is to answer questions of law," said H. Jefferson Powell, a professor of law and religion at Duke University.

"In one sense, of course, who you are influences the way you answer questions of law. Complex legal issues can't be answered algorithmically. But a court of nine people can't be a truly representative body of the wider U.S. public."

The U.S. Constitution specifically bans a "religious test" be required to hold any office in the United States, and that's how it should remain, Powell said.

Faith matters

Religious views have some influence, observers said.

"After all, religious values have a way of affecting what people define as justice," said William B. Lawrence, dean of Southern Methodist University's Perkins School of Theology in Dallas. Lawrence was Blackmun's pastor at Metropolitan Memorial United Methodist Church in Washington, D.C., after the late justice retired from the Supreme Court.

Nevertheless, Lawrence thinks the absence of Protestants on the court won't make much of a difference.

"Protestant is such a multivalent term," he said. "It includes Quakers, Baptists, Pentecostals and Episcopalians. It's hard to say what brand of Protestant we have in mind. ...One can make the case that Southern Baptists have more in common theologically and ideologically with Roman Catholics than they do with United Methodists."

Powell said while religion often informs how justices might go about making legal arguments, it rarely has an impact on their individual decisions.

He pointed out that the Catholic Sotomayor is widely expected to vote more often with the court's liberal bloc that includes Ginsburg and Breyer than her co-religionists Scalia and Alito.

Powell formerly served as principal deputy solicitor general in the Clinton administration and knew Kagan, who was a White House adviser. He thinks she is an "excellent" choice.

"I think this change should not excite any comment or cause any pause."

Retired United Methodist Bishop Melvin Talbert agreed.

"I would not want us as Protestants to begin a rallying cry for more Protestants on the court," said Talbert, who formerly served as president of the National Council of Churches.

He was delighted, he said, when he learned that Kagan had clerked for Justice Thurgood Marshall, the first African American on the Supreme Court. "What I'm looking for is someone who is going to do justice."

United Methodist News Service
Heather Hahn is a multimedia news reporter for United Methodist News Service.