At the Liberty Law site, I have a post on the absence of any Protestant Christians on the current Supreme Court. In historical terms, this is a striking anomaly: Most of the 112 men and women who have sat on the Court have been Protestant Christians. What explains this, and does it make a difference for American law?
I argue that the reasons differ for Mainline Protestants and Evangelicals. The absence of Mainline Protestants is explained by the general decline of this group, in terms of numbers and influence, in American life. Membership in the Mainline churches is dwindling; and, at the cultural level, as Rusty Reno argues, Mainline Protestant Christianity has transformed itself into a “post-Protestant WASP” ethic of religious indifference, multiculturalism, and meritocratic success. The lack of Evangelicals, by contrast, is explained by their underrepresentation in the legal elite—which, in turn, may be explained in part by bias against Evangelicals (and other social conservatives) at top law schools.
Does the absence of Protestants on the Court make a difference for the law? In my view, it depends on which sort of Protestants, and which sort of legal questions:
If Reno is right about the transformation of Mainline Protestantism into a post-Protestant WASP ethos, then it shouldn’t matter whether actual Mainline Protestants are on the Court. Given the composition of the legal profession, most people likely to be appointed to the Court will have post-Protestant WASP values, whatever their particular faith tradition. … Post-Protestant WASP values, in other words, will be represented even without actual Mainline Protestants.
On the other hand, the absence of Evangelicals might make a difference to the Court’s decisions, at least with regard to some issues—for example, questions regarding religious liberty. Notwithstanding the Supreme Court’s 1990 decision in Employment Division v. Smith, which abandoned the test for constitutional purposes, most hot-button religious liberty cases nowadays turn on some version of the “compelling interest” test. This test holds that the government cannot substantially burden a person’s exercise of religion unless it has a compelling interest for doing so and has chosen the least restrictive means. This is the test contained in the Religious Freedom Restoration Act (RFRA), for example—the statute at issue in the Court’s recent decisions regarding the contraception mandate in Obamacare.
The compelling interest test requires many judgment calls: What is a “substantial burden” on religious exercise? What is a “compelling interest”? Is there a “less restrictive means” available? (In fact, it was the necessity of such intuitive judgments that led the Smith Court to abandon the compelling interest test in the constitutional context.) And judgment calls depend on the intuitions of the people doing the judging. An Evangelical Christian likely would have different intuitions about these matters than a post-Protestant WASP who views religions as more or less interchangeable, and anyway not all that important. Someone who views religion as a vital guide to behavior might be more skeptical of claims that a rule does not “substantially burden” religious exercise, or that the government has offered a “compelling” interest to justify the intrusion.
To be sure, many questions the Court faces do not implicate such matters. Much of the Court’s work involves fairly technical questions to which the religious background of the justices would be irrelevant. And it would certainly be possible for an Evangelical justice to put aside his own views in a religious liberty case, for example, by deciding a case on the basis of what our history and legal tradition hold to be “compelling” interests. On at least some questions, though, the religious background of the justices could well make a difference, and the absence of Evangelicals on the Court affect the course of the law.
You can read the whole post here.