Why are we asking if the religious composition of the United States Supreme Court should be more representative of America’s religious traditions, now that it is likely that for the first time in its history, the Court is likely not to have one single Protestant on board? There will be six Catholic and three Jewish justices, should Elena Kagan’s nomination go through, and some people are nervous. Why?
Their cultural and legal roots being in England, where laws excluded from public office all non-members of the (“established”) Church of England, the U.S. Constitution’s signatories removed the possibility of such exclusion: “….no religious test shall ever be required as a qualification to any [federal] office….” (Article 6, Section 3; my underlining).
1…..I, a Protestant, am “nervous” not because of the probability that the U.S. Supreme Court will have no Protestant member but because of the legally irrelevant but politically loaded question as to whether the membership should be “representative of America’s religious traditions.”
2…..”America’s religious traditions”? Fifty five years ago, that meant what Will Herbert called it in his “Protestant – Catholic – Jew: An Essay in American Religious Sociology.” (Reinhold Niebuhr commented that “his thesis is that America is not so much a melting pot as three fairly separate melting pots.”) Today, due to the loosening of immigration laws beginning forty five years ago, all the world’s major religions have populations in America: that is the fact of “pluralism.” And the belief is widespread that one religion/culture is as good as another: that is the ideology of “multiculturalism” taught in our public schools.
3…..Consequently, we have a NEW fact, namely, America’s religions, and an OLD fact, “America’s [three] religious traditions.” Personally, if a religious test for Supreme Court membership were not illegal, I would want membership restricted to devotees of “America’s religious traditions.” My preference would not be a matter of prejudice: in the University of Hawaii, I taught “The World’s Great [meaning major] Religions.” Rather, my preference would be a matter of national identity, the particularity of the American civilization sustained by the American mind.
4…..Of a people’s “mind,” the axiom generally holds: the more it changes, the more it remains the same. Mao’s “cultural revolution” failed to cancel the Chinese mind (of which we hear from a son of ours teaching in a university in China). But an exception may be what is happening to the American mind, which is being ideologically eroded by aggressive atheisms and assumed egalitarianism-multiculturalism.
5…..The historical “American mind” is to be distinguished both from nativism/chauvinism/Americanism on the right and a utopian, antinational globalism on the left. It was born of the marriage of Biblical enculturation and Enlightenment political philosophy. In the case of Benjamin Franklin, Henry Steele Commager described the marriage as a merger of “the virtues of Puritanism without its defects” and “the illumination of the Enlightenment without its heat.” / Contemporary American historian Mark Noll, to emphasize each side of the marriage, speaks of America’s “two foundings,” the religious (which was Protestant) and the political (which was republican-democratic). My preferred analogy is that the American mind has two brain-hemispheres connected by the corpus callosum of our “civil religion.”
6…..In choosing nominees to the Supreme Court, American presidents should limit their choices to representatives of the American mind generously understood. Generously understood: some who are not Protestants, Catholics, or Jews are of the American mind, convinced of the historic American values and virtues. In this nominating, what weight presidents may give to balance – in gender, culture, religion, judicial philosophy – is entirely up to them.
7…..While confirmation of a presidential nomination to the Supreme Court requires only a majority of the Senate, we the people are free to express our opinions both as to particular nominees and as to the ideal composition of the Court. As to the latter, my opinion is that the Court should always be 4-to-5 on gender and on tight/loose interpretation of the Constitution.