Like the skilled reporter she is, Nina Totenberg, NPR's Supreme Court correspondent, enlivened the discussion about the U.S. Supreme Court on April 7 by noting that Justice John Paul Stevens is the only Protestant on the Court. Six Catholics and two Jews sit on the Court. When Stevens retires, Totenberg wondered aloud, will finding a Protestant candidate for his seat be important? Not too many years ago, people talked openly about a Catholic seat or a Jewish seat on the Court. The notion of a single Protestant seat is remarkable, at least historically. The New York Times’ Adam Liptak picked up this theme on Sunday, April 11, and I believe others will follow.
This angle on the Stevens retirement coverage is likely to find traction in the major media, simply because it has the elements of pointless score-keeping and visceral reactions that give any news story traction. As Totenberg's sources pointed out, there is no evidence of faith-based bias on the Supreme Court. But that won't stop pundits from suggesting as much.
For example, the gross stereotype of a Catholic is that he or she is governed by immutable rules and prefers life in a rules-based structure. Is this true of the Catholic justices Roberts, Scalia, Kennedy, Thomas, Alito and Sotomayor? Who knows? Can you draw a parallel between Scalia's rules-based religion and his rules-based assertions of tradition and textual purity in the Constitution? Who knows? Both of Justice Stevens's wives were raised in the Catholic church. His children attended Catholic schools. Was he half-Catholic? No, but who cares?
Still, the "Protestant seat" angle could stir up a sensational controversy about church and state. Indeed, one of the few attacks ever made against Justice Stevens is that his opinions display "hostility to religion," as one law professor put it in 1990. This viewpoint was rekindled recently by Edward Whelan, writing for the National Review web site: “In every major establishment-clause case during his three decades on the Court, Stevens has concluded that government policies that accommodate or support religion are unconstitutional, even if they are an excepted part of our political and cultural heritage.” To that, I say, “Thank God.” In my opinion, Stevens is no more or less hostile to religion than the founding fathers who wrote the First Amendment, separating religion from the state. Stevens's certainly doesn't believe in faith-based law. One of his best statements in that regard is his dissent in the 1990 case of Nancy Cruzan v. the Director of the Missouri Department of Health, a right-to-die case. Some of his writing in abortion cases questioned the propriety of injecting sectarian religious doctrine into interpretations of law.
The primary message of the “lone” Protestant angle is this: Religion is public life is a divisive unrewarding controversy with nothing to be gained for the nation in any aspect of the debate. Over the years, the Supreme Court has been the focus of this debate, especially on the issue of prayer in the public schools. Despite all the concern about a liberal-conservative divide on the Court, we should celebrate the fact that the Court is one institution of government where religious affiliation barely has been noticed, until now. — Bill Barnhart