If the U.S. Senate confirms the nomination of Solicitor General Elena Kagan as an associate justice of the Supreme Court, its action will mark a new stage in the evolution of American institutions. For the first time in its history, the court will have no Protestant justices.
Traditionally the court has been dominated, at least demographically, by justices who admitted to being some kind of Protestant. But the WASPS, the white Anglo-Saxon Protestants, who once sat in the seat of judgment determining the constitutionality of abortion and civil rights, are seated there no longer. The only WASP-y remnant of the current court is the fact that all the justices, including the current nominee, attended or are graduates of either Harvard or Yale Law, once the gold standard for WASP institutions.
In one sense the issue seems very much beside the point. The Supreme Court is not a religious body, asked to assess American religious practices or name their religious holidays. The chief justice is not a Roman pontifex maximus, charged like Julius Caesar with the solemn responsibility of naming lucky days on which the Senate might safely meet. Religion in America unlike religion in ancient Rome is not the direct business of government.
On the other hand, only someone marooned on a desert island for the last 30 years could possibly think that religious issues do not come before the court with some frequency or that the religious affiliation of the justices is of no concern whatever to Americans, liberal and conservative alike. As long as religious commitments shape moral values, they will influence people's judgments about a wide range of practical problems, including the prohibitions and mandates of the law.
That would be true even of all the justices were avowed atheists like Christopher Hitchins and Richard Dawkins, two of the so-called NewAtheists, who reject all the gods currently on offer and who seem eager to win converts to their religion-free point of view. The absence of religion never means freedom from the necessity of making moral judgments and the grounds for making moral judgments is an inescapable question for any thinking person. Too little religion like too much can mandate certain ethical judgments and preclude others.
One would have thought that traditional Protestants of a conservative bent might be the first to worry about the decline of Protestant representation on the court. After all, there have been 94 Protestant justices on the court since 1789. While that number clearly demonstrates an overrepresentation of the Protestant majority, the reduction of the Protestant presence on the court to zero might seem like a radical and troubling break with longstanding tradition.
After all, more than half of Americans still regard themselves as some variety of Protestant, however tepid or intense their religious views may be. About 40 percent of that number could be safely labeled conservative evangelical. With issues that may come before the court from gay marriage and abortion-related lawsuits to the rights of religious minorities and the interpretation of the two religion clauses of the First Amendment, one might surmise that the complete absence of Protestant justices could be worrying to Protestant traditionalists.
But if a protest is expected among evangelicals, none has as yet occurred. Indeed, among the observers who seem not to mourn the departure of Protestant justices are considerable numbers of evangelical Christians. Such evangelicals often find their ethical and religious concerns far better represented by Roman Catholic justices than by liberal Protestants.
This reaction is not a quirky anomaly.
Over the last generation there has been a sharp decline in the importance of brand name Christianity - Episcopal, Baptist, Methodist, Presbyterian and the like - and the development of an incredible diversity of views under each label. A United Methodist can be liberal, evangelical, liturgical, revivalistic, social activist, mystical and anything in between. Which means that friendships and alliances across old denominational lines can be far more important to many Christians than adherence to once powerful denominational labels.
Denominations are by no means entirely irrelevant (far from it!) and some brand names have held up better than others. But for an ever larger group of Americans, holding similar views on religion and morality is, in the end, far more crucial than bearing the same label.
Protestants will undoubtedly be back, labels and all. There are too many of them not to spawn a few more constitutional scholars and first-class jurists. In the meantime, conservative Protestants seem perfectly content to have their questions raised, their skepticism voiced and their values represented by justices who do not wear their tribal insignia. Esse quam videri - substance matters more than appearance, always has, always will.
David C. Steinmetz is the Kearns distinguished professor emeritus at the Divinity School of Duke University and the McDonald distinguished professor at Emory University.