Q: If Elena Kagan is confirmed to replace retiring Justice John Paul Stevens, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations — the Protestant traditions. If Kagan is confirmed, six of the justices will be Roman Catholic and three will be Jewish. Should the Supreme Court be more representative of America’s religious traditions? Does religion matter in the mix of experience and expertise that a president seeks in a Supreme Court nominee?
The Supreme Court of the United States stands as the ultimate arbiter of laws under which all Americans must live. Its primary functions include determining the constitutionality of laws passed and settling disputes between the states. While the values justices bring into their decision making may well be influenced by their religious beliefs, such decisions should not be based on narrow sectarian beliefs or doctrines. They should be based on the justices’ unbiased understandings of the Constitution in the context of the matters that come before them. If the court ends up with no Protestants on it, why would this, in itself, be a negative?
In the history of the Court, there have been 111 justices, nearly half of whom have been either Episcopal or Presbyterian. From the perspective of demographics, these two Protestant denominations, along with Judaism, have actually been over represented on the Court, while Catholics and other religions have been under represented. This is not an inherent problem, since most contemporary justices have not shown narrow sectarian religious biases in their rulings. Instead, they have shown other ideological biases, and any narrow bias, be it religious or social, can skew the thinking and decision making skills of a jurist.
President Obama often stresses experience when he nominates or appoints someone to a position in his government, and clearly experience and expertise should be among the dominant criteria in choosing those who will sit of the highest court in the land. Significantly, Ms. Kagan has absolutely no judicial experience, so one has to wonder why he considers her above other qualified individuals who actually have judicial experience and expertise. The Court is not supposed to be a place for on-the-job training. The president should listen to his own rhetoric.
If one does want to consider the religious makeup of the Court, then it must be acknowledged that virtually all its justices have come from one of the Abrahamic religious traditions, which all tend to have overlapping views of the law. President Obama also emphasizes the value of diversity when he chooses or nominates someone. Unfortunately, he seems to view diversity superficially, seeing it almost solely from within the context of ethnic, racial, or gender categories rather than from philosophical, cultural, or experiential perspectives. Should not the latter be more important? Nevertheless, using his own criteria he could take a large step in the direction of diversity on the Court by nominating an Asian Hindu (Hinduism is the third largest religion in the world), a Buddhist, or someone from one of the other Asian religious traditions. There are many Americans of Asian heritage in the U.S. today, and an increasing number are sound legal scholars, practitioners, and jurists. Such individuals would likely be able to offer insights to understanding and evaluating the concept of justice that those jurists who have lived totally under Abrahamic legal assumptions and worldviews may not be aware of. In doing so, the president could make good on his rhetoric of inclusion and take a significant step toward true diversity.