Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
As it does every year, a new Supreme Court term has begun in Washington. This time, however, the Court’s composition is a bit unusual. At the moment, the Court has only eight members; a successor for the late Justice Antonin Scalia, who passed away in February, has not yet been appointed. But the Court’s composition is unusual for another reason, too: the religious backgrounds of the justices. None of the current members of the Court is a Protestant Christian. Neither is the man President Obama nominated for the Scalia seat, Circuit Judge Merrick Garland—a nomination that will now be set aside as Donald Trump prepares to be sworn in on January 20, 2017.
It is notable, in any case, that a Protestant has not sat on the High Court since Justice John Paul Stevens resigned in 2010. In historical terms, the scarcity of Protestants is a striking anomaly. Before now, the Court has always contained at least some. In fact, Protestants have made up the large majority of the 112 men and women who have served as justices. So the current situation should make us stop and think. How did it come to be that Protestants aren’t represented at all, and does it make a difference for the law?
First, to understand how we got here, it’s useful to divide American Protestants into two large groups: Mainline Protestants and Evangelicals. Mainline Protestants are the members of the traditional, legacy churches in America: Episcopalians, Presbyterians, Methodists, and so on. By and large, these churches are theologically and politically left-liberal. According to the Pew Research Center, for example, a majority of Mainline Protestants say either that the Bible should not always be taken literally or that it is not the word of God at all, and that one should rely on “common sense” rather than religion in deciding what is right and wrong. By sizable percentages, Mainline Protestants favor abortion rights and same-sex marriage. The leadership of these churches is overwhelmingly left-liberal, often more so than individual congregations and the people in the pews.
Evangelicals make up the second group. Evangelicalism is harder to define than Mainline Protestantism, because it is less institutional—and the distinctions between Mainline Protestants and Evangelicals are not exact, in any case. But, generally, Evangelicals are members of less-formally affiliated churches that emphasize the Bible over Church Tradition and personal conversion over formal church membership. They tend to be theologically and politically conservative. A majority of Evangelicals say the Bible is the literal word of God and that religion, not “common sense,” should provide guidance on moral questions. Large majorities oppose abortion rights and same-sex marriage.
When it comes to declining representation on the Court, the reasons differ for each of these groups. For the first group, the explanation seems to be the general decline of Mainline Protestantism, both quantitatively and qualitatively, in American life. Historically, Mainline Protestants were the dominant religious force in America, in terms of numbers and social influence. But the numbers have shrunk dramatically. According to Pew, Mainline Protestants now comprise less than 15 percent of the American population. Quite simply, people are leaving these churches, or dying, and are not being replaced. The Episcopal Church has lost 20 percent of its membership in the last 10 years. The Presbyterian Church (USA) projects that it will lose 400,000 members over the next five years.
Of course, numbers aren’t the whole story. Jews make up less than two percent of the population, but three justices are Jewish. (Judge Garland would have made a fourth.) But the cultural influence of Mainline Protestantism is declining, too. As Rusty Reno provocatively argues, in cultural terms, Mainline Protestantism seems to have transformed itself into a post-Christian phenomenon. The metamorphosis of many of America’s great universities in the past century, from Mainline Protestant to non-sectarian to essentially “None,” is a familiar story. More broadly, Reno writes, our elite cultural institutions, once firmly Mainline Protestant, now embody a “post-Protestant WASP” ethic of religious indifference, multiculturalism, and meritocratic success.
Members of the professional class, including lawyers, increasingly reflect this worldview, whatever their particular religious backgrounds. A Catholic or Orthodox Christian who succeeds at Harvard and in the legal profession is very likely to share the post-Protestant WASP ethic, at least when he’s on the job. How this happened is a long story, but the basic point is that, in terms of cultural influence as well as numbers, Mainline Protestant Christianity is much less significant than it used to be.
When it comes to Evangelicals, the reasons differ. As University of Michigan law professor Dan Crane observes, Evangelicals “are grossly underrepresented in the legal elite,” including the student bodies and faculty at elite law schools. Based on a survey he and others conducted, Crane estimates that only seven percent of 1Ls at top law schools are Evangelicals—a far lower percentage than the 25 percent of Evangelicals in the general population. Crane estimates that less than five percent of faculty at top law schools are Evangelicals. The pipeline that leads to professional achievement and, for a very few, a Supreme Court appointment begins with success at a top law school, so the fact that Evangelicals are so underrepresented skews things against them from the start.
Why are Evangelicals so underrepresented among legal elites? There could be many explanations, including self-selection by Evangelicals who, for whatever reason, avoid elite institutions. It’s worth considering, though, whether bias may explain some of this. Most Evangelicals are social conservatives (see above), and social conservatism is extremely disfavored at elite institutions. This has become especially pronounced in recent years. As the valuable Heterodox Academy site relates, “in the 15 years between 1995 and 2010 the academy went from leaning left to being almost entirely on the left.” The imbalance definitely exists on law school faculties, as studies of law professors’ political contributions make clear. It wouldn’t be surprising if conservative, Evangelical students (and faculty) at elite law schools quickly got the message: if you want to succeed and make the right connections with professors and judges, it’s probably better for you, on the whole, to be something else—or, at least, be quiet about it.
Now for the second question: Does the scarcity of Protestants make a difference to the Court’s decisions?
It’s hard to know one way or the other, but my hunch is, it depends which kind of Protestant, and which kind of question. 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. Recall my example of the Catholic or Orthodox 1L at Harvard. 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.
In short, the lack of Protestants on the Court, both the Mainline and Evangelical variety, results both from larger social trends and from factors specific to the legal profession, and, with respect to Evangelicals, at least, may have consequences for the Court’s decisions.
How these facts could play out with the swearing-in of a Republican President who promised to appoint Supreme Court justices “in the mold of Antonin Scalia” is of course a different question, one that I’ll leave for another day.
But a final note: I realize these observations may be unwelcome to conservatives and other proponents of judicial restraint, especially Originalists and Textualists, who hold that judging is, or should be, a matter of applying the law as written, without allowing one’s personal “priors” to intrude. Those are worthy goals and I am reluctant to slight them, even implicitly. But, in my defense, Originalism and Textualism can’t offer much help with regard to statutes like RFRA, which expressly require intuitive judgments. And, anyway, Originalism and Textualism have shown themselves to be rather weak guardians against judicial activism in the long run. Just ask Justice Alito.