Political writer and blogger at ChrisWeigant.com
Posted: 06/30/2014 9:01 pm EDT Updated: 06/30/2014 9:59 pm EDT
The makeup of the current Supreme Court can be seen, in one way, as a big success story for certain minorities. It is a triumph, in fact, for two groups which have historically had to put up with a lot of discrimination and lack of political representation in America. These two groups are not defined by gender or race, but rather by religion. Broken down on religious lines, today's Supreme Court has members from just two religions, both of which had been historically underrepresented on the highest court: Roman Catholics and Jews. There are six Roman Catholics currently serving on the court (Samuel Alito, Anthony Kennedy, John Roberts, Antonin Scalia, Sonia Sotomayor, and Clarence Thomas) and three Jews (Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagen). This is undoubtedly a story of rising up from underrepresentation. But, bearing in mind that America is a country with almost too many religions to count, have we actually moved into a problem of overrepresentation or lack of diversity? The question is on my mind today, obviously, as a result of the decision today in the Hobby Lobby contraception case. Three Jewish Justices and one Roman Catholic voted against five other Roman Catholics in a case defining the dividing line between religion and government -- a decision which affects us all.
Even bringing such questions up is a delicate matter. The United States Constitution states quite plainly that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Even if Article VI, paragraph 3 didn't exist, it brings into question the concept of "affirmative action" and the concept of "quotas." All of which have their own long history, pro and con, in America. So allow me to state from the beginning that I am not advocating religious quotas on the Supreme Court in any way. I don't think we should revert to the days when people openly spoke of there being a "Jewish seat" or a "Catholic seat" (note that both are singular) on the Supreme Court. But I still have to wonder, with all the top-notch lawyers in the country, why the current court has such a stunning lack of diversity in the religious realm. I propose no concrete solutions, though, I merely raise the question.
The change in the Supreme Court's makeup is undoubtedly a story of triumph over previous discrimination. Roman Catholics in particular have faced enormous discrimination in American history. There was even briefly a political party (the "Know Nothings" or the "American Party") whose entire agenda was based on being anti-immigrant and anti-Catholic. No other religion has that dubious historical distinction (with the possible exception of the Mormons, who faced equally virulent political discrimination in America's past).
The first Roman Catholic was appointed to the Supreme Court in 1836, but the second and third had to wait until 1894 and 1898. The first Jewish appointment was made in 1916. Since the Constitution was ratified, there have been a grand total of 112 Supreme Court Justices. A full 91 of these (81 percent) have been one flavor of Protestant Christian or another. Only 12 have been Roman Catholic (11 percent), and only 8 have been Jewish (7 percent). Seen in this light, it is pretty stunning that of only 20 Jewish and Roman Catholic Justices in all American history, almost half are now currently serving on the Supreme Court. This, as I mentioned, is a real triumph of minorities who faced a lot of previous discrimination. The equivalent today might be a future Supreme Court composed entirely of women and Latinos (in terms of the political hurdles they have overcome -- I'm not trying to equate religion and either gender or ethnicity, mind you, in any other way than on the scale of struggles faced).
As recently as the 1980s, there was a clear de facto religious quota on the Supreme Court, with one Jew and one Roman Catholic sitting in what was called the "Jewish seat" and the "Catholic seat." There was no law which compelled this, but it was a strong 20th-century political tradition -- one eventually expanded to also include an "African-American seat" and then a "woman's seat." But by the 1990s, even such unacknowledged quotas crumbled, as court members were nominated which fell outside the traditional concept of such minority seats (such as having a conservative African-American on the court, or having more than one woman). Soon the court's age-old Protestant majority shrank as well, until (in 1994) Stephen Breyer's nomination led to the first-ever Protestant minority on the court. By 2010, the last remaining Protestant retired, and the Supreme Court became exclusively Jewish and Roman Catholic.
This brings us up to date. One-third of the Supreme Court is now Jewish, and two-thirds are Roman Catholic. By population, about one-fourth of the American public is Catholic and less than two percent is Jewish. This means that, in terms of religious demographics, 27 percent of the country has 100 percent representation on the Supreme Court. The 50 percent of the country who identify as Protestant have precisely zero representation -- to say nothing of other various religious minorities.
The Supreme Court has had a large degree of success in moving towards greater diversity in the past half-century. Women, in particular, have made great strides. We now have a Latina on the high court as well. In not-so-obvious areas, however, the Supreme Court seems to be regressing noticeably. There is not a single Supreme Court member who didn't attend either Harvard or Yale, for instance. There is not a single member who has ever run for any public office -- which might go a long way to explain their obtuseness when it comes to rulings on campaign finance laws. Both these improvements and these regressions have to be laid at the feet of the presidents making the appointments. Supreme Court Justices are not elected, therefore the makeup of the court is entirely up to the president, who is free to chose any candidate for any reason they wish -- taking into account whether such a person improves diversity on the court in some ways, and removes diversity on the court in other ways.
This is also a result of the "no religious test" idea, enshrined in the Constitution. This concept cuts both ways. It means that even if 90 percent of the people are of one religion, a member of the 10 percent shouldn't be barred from office. But it also means that there is nothing to stop the 10 percent from holding all the available positions, either. If there is really no religious test (instead of de facto religiously-based individual "seats"), then sooner or later, randomly, we should face the situation we now face. If the best candidate for the job is weighed on legal knowledge and judicial temperament alone, and if religion isn't part of that equation whatsoever, then sooner or later we'll have an all-Protestant Supreme Court again (or a court made up of Mormons and Muslims, perhaps). By the laws of chance, the religious makeup of the Supreme Court should fluctuate over time.
But the makeup of the Supreme Court doesn't actually change all that often, so it might be a long time indeed before we see an all-Mormon/Muslim court. Consider that the following religions have never had a single member named to the highest court in the land: Orthodox Christians, Mormons, Pentecostals, Muslims, Hindus, Buddhists, and Sikhs (this should only be read as a partial list -- there are many other religions which have also never been represented). No Supreme Court Justice has ever publicly claimed to be an atheist, either.
The claim cannot be made that co-religionists on the Supreme Court vote identically (political position is a much better indicator). The fear when John F. Kennedy ran for president that "he would take orders from the Pope" cannot now be proven by the voting patterns of the current court (while five Roman Catholics voted in Hobby Lobby's favor, one dissented, just to give the most obvious example). There is not a true "Catholic bloc" of votes on the Supreme Court, even when it comes to questions of religion and law -- not in the way that there are reliably conservative and liberal blocs of votes (both currently balanced at four each). So I am not suggesting that the five in the majority voted the way they did because their own religion has strict views on contraception.
Presidents select Supreme Court Justices in order to further their own legal, political, and constitutional philosophies. Ultimately, if the voters want a different makeup on the Court, they will indicate this by the presidents they elect (to put this another way). America has moved beyond forming political parties whose purpose is nothing short of religious bigotry, and we've also moved beyond the undeclared tradition that "this is your religion's single seat on the Supreme Court, so just be happy with one out of nine." This is all to the good. But diversity for diversity's sake is a valid goal as well, because it brings to the table different life experiences, different viewpoints, and different ways of viewing the real-world effects of judicial decisions. Two religions who have historically been in the minority on the Supreme Court (20 out of 112, remember) now not just dominate the court, they exclusively dominate the court. Since religion is a big part of the worldview of any adherent, it doesn't seem too much to ask that future presidents at least consider a wider range of religious diversity when considering equally-acceptable candidates to the highest court in the land.
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