Supreme Choices


Published April 21, 2010, issue of April 30, 2010.
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Easy for us to say it doesn’t matter if there are no longer any Protestants on the U.S. Supreme Court, what with two Jews among the nine current justices, and several more co-religionists on the short list to replace the retiring (and Protestant) John Paul Stevens. So what if the majority of Americans are Protestant, and Jews make up less than 2% of the population? If the high court was meant to exactly mirror the American citizenry, some of the Catholics now dominating the bench would have to be given the boot.

Then again, if strict equal representation over time is to be the goal, those of us who are women have the right to wave the diversity flag. According to Geoffrey R. Stone, professor of law at the University of Chicago, over the Supreme Court’s entire existence only 3% of its justices have been women, hardly representing the 51% of the population that is female. To make up for this sorry history, Stone calculated, the next 112 justices would have to be women.


Truth is, only the paranoid would believe that the absence of a Protestant on the court would signal the end of Protestant power in America. (There is, remember, a Protestant in the White House and quite a few in charge elsewhere.) The ascension of qualified candidates from previously excluded groups was important for what those individuals would bring to the court, not what they would take away.

Besides, using religion as a predictor of judicial behavior is just as foolhardy as using race, gender or even party identification. “It’s hard to draw a direct line between Brandeis, Cardozo and Frankfurter and their decisions in a particular case,” Jeff Shesol, author of the new book “Supreme Power,” said of the first three Jewish justices. “The Catholics on the court today are not monolithic in their views. And if Eric Cantor got appointed to the Supreme Court, I wouldn’t expect him to line up with Justice Ginsburg.”

Right, again.

There was a time when geography was a key determinant in court appointments, reflecting a belief that where one was from influenced judicial behavior. The 20th century saw the gradual inclusion of Jews, blacks and women, even though the pot didn’t always melt easily. (One justice, James Clark McReynolds, was so antisemitic that he refused to even sit for a group portrait with Brandeis.)

As the law-professor-in-chief mulls his next nominee, let us hope he seeks another sort of diversity and selects someone with the experience to understand how the law is lived beyond the rarified atmosphere of judicial chambers.

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