Monday, February 06, 2012

Elena Kagan could reshape the US Supreme Court


For the first time since it was set up 221 years ago by America's Protestant founding fathers, the US Supreme Court is poised to have a bench without a single Protestant justice, if Jewish candidate Elena Kagan is chosen.

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
Barack backing: 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 Photo: AP

If the Senate confirms Elena Kagan, President Barack Obama's choice to replace retiring justice John Paul Stevens, she will join two other Jewish justices and six Roman Catholics serving on the highest court in the land.

The thought of a Protestant-free Supreme Court bench was too much to bear for some.

"I'd like to offer here... a lament for the passing of American Protestantism," American religion scholar Diana Butler Bass wrote on BeliefNet.com about Obama's decision to nominate Kagan, a Jew.

"There will be no one with Protestant sensibilities on the court, no one who understands the nuances of one of America's oldest and most traditional religions - and the religion that deeply shaped American culture and law."

The United States was, after all, once the largest Protestant nation in the world, she noted. Protestants currently make up the country's biggest religious group.

To Frances Kissling, a visiting scholar at the University of Pennsylvania's Center for Bioethics, a changing Supreme Court was the natural reflection of demographic developments in US society.

"The image of America as Kansas - wheatfields and farmers and European Protestant stock - is no longer what America is," she said.

"Most of our presidents, our justices, our powerful people have been mainline Protestants but that has changed and we have an America now with a president who has combined Muslim-Christian roots, a Supreme Court with six Roman Catholics and what will be three Jews," she added.

"I think that's marvelous."

Not too long ago, having all Jewish or Catholic justices and zero Protestants on the high court was just as unthinkable as an African-American president of the United States.

"Can you imagine going back in time and telling the founders that the day would come when there were no Protestants on the Supreme Court?" Rod Dreher wrote on Beliefnet.

"Can you imagine telling someone born 50 years ago that within their lifetime they'd live to see a SCOTUS (Supreme Court) populated exclusively by Catholics and Jews?"

Both Catholics and Jews have fought to overcome discrimination in the United States, including exclusion from plum jobs at law firms and quotas on numbers for admission to Ivy League colleges, which were in place until the second half of last century.

"Prior to the 1970s, no Catholic or Jew got high enough in the law profession that they could be considered for the Supreme Court," said Kissling.

"The opening of employment and education opportunities in 1960s is a dominant factor in this change in the court."

Catholics already hold 67 per cent of the seats on the Supreme Court and Jews will hold 33 per cent, if Kagan passes muster with the Senate as expected.

"Some anti-Semites will see something dangerous about having three Jews on the Supreme Court but I think it's a real tribute to how far one can go in America, whatever one's religion or ethnicity, on the basis of hard work if barriers are removed," Dreher said.

Bass, meanwhile, expressed sadness at seeing a Protestant-free high court.

"I can't help but think that losing the lived memory of American Protestantism will be a loss for all of us," she wrote.

A survey released two years ago by the Pew Forum on Religion and Public Life showed that barely 51 per cent of Americans were Protestants, compared to nearly two-thirds in the 1960s, and predicted that Protestants would no longer be in the majority in the United States by the middle of this century.

Catholics made up a quarter of the US population and Jews less than two per cent, the 2008 survey showed.

At the time the survey was released, Pew fellow John Greene foretold what is playing out today at the Supreme Court.

"So many of the values and institutions in American public life came out of Protestantism," Greene said.

"I think you're likely to see a change in those institutions and the cultures that support them" as the religion of the founding fathers loses ground in America, he added.


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