No Protestants on the Supreme Court.

Right now, there is not a single Protestant on the United States Supreme Court, which is an amazing fact since when I was in law school in the early 1980s, professors were still talking about the "Jewish seat" and the "Catholic seat."

This is a singular phenomenon that has been ignored by the media under the rubric that "all religions are the same."

It is also a reason to regret the fact that mainstream Protestantism decided that voluntary self-extinction was the only answer to the secular challenge.

Worth Watching - Justice Scalia ...

...speaks candidly about stuff.

Liberals losing that loving feeling for the Supreme Court.

On the eve of the Obamacare decision, dependable liberal James Fallows writing for the Atlantic thinks that the United States is undergoing a coup:

(Midnight update: This item went up three hours ago with a more blunt-instrument headline than it should ever have had: "5 Signs the United States is Undergoing a Coup." I used the word "coup" in a particular way in the longer item this was drawn from. Using it in the headline implies things I don't mean. Through the past decade, there has been a radical shift in the "by any means necessary" rules of political combat, as I describe. Previous conservative administrations have nominated previous conservative Justices -- but not radical partisans, happy to overthrow precedent to get to the party-politics result they want. That is the case I mean to make. And I hope the upcoming health care ruling ends up being evidence on the other side.)

This is distilled from a longer item earlier today, at the suggestion of my colleagues. It's a simple game you can try at home. Pick a country and describe a sequence in which:
•First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
•Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
•Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
•Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.
•And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."


How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That's how we used to talk about the Chinese courts when I was living there. Now it's how law professors are describing the Supreme Court of the John Roberts era.

Fallows ignores:

1. The "five people" is a majority of the institution that was following its constitutional duty to adjudicate disputes.

2. Fallows thinks that "the Law" is decided by law professors, typically leftist law professors at liberal law schools.

Now, if Fallows wants to return to strict construction of the Constitution and restricting the ability of the courts to engage in social engineering, then a lot of conservatives might sign on to his critique.

But, somehow, I don't think that's where he's going.

The Assumption in the Title Seems Accurate.

"Why the Supreme Court cares more about elites."

We need a "Protestant Seat" on the Supreme Court.

The Volokh Conspiracy notes:

A lot of people have noted that if Elena Kagan is confirmed to replace Justice Stevens, the Supreme Court will have no Protestants for the first time. Instead, there will be six Catholics and three Jews. About 24% of adult Americans are Catholic, and less than 2% of adult Americans are Jewish. That raises an interesting question: Why Catholics and Jews? Is it just a coincidence?


I really don’t know. But hey, this is a blog, so here’s some amateurish speculation anyway. On one hand, I suspect some of it is just a coincidence. On the other hand, some of it likely reflects the pool of lawyer-intellectual types from which Supreme Court nominees are often drawn. Generally speaking, Jews are heavily overrepresented in the law geek set. This blog is a good example: Most of us VC bloggers are Jewish. And given that most American Jews tend toward the political left, it shouldn’t be overly surprising, in an environment in which there is no Jewish “seat” or quota, that three of the last four nominees of Democratic Presidents are Jewish.

Perhaps the more interesting question is the religious affiliation of the Republican nominees. All five GOP-nominated Justices are Catholic. Granted, that uniformity masks some nuance. For example, Justice Thomas apparently rejoined the Catholic church in the late 1990s, after being raised Catholic and then later attending an Episcopal church instead. Nonetheless, it’s pretty notable that all five of the GOP-nominated Justices on the post-Stevens Court self-identify as Catholic.

How did that come to be? I’m not really sure. One possible hypothesis is that this is an indirect consequence of Roe. Given the Catholic church’s strong pro-life position, and the fact that Supreme Court nominees are not directly asked their view of such matters, affiliation with the Catholic church may be seen by Republican Administrations and conservative judicial groups as signaling a likelihood of a nominee’s view toward abortion rights while not providing any direct evidence that could itself cause controversy (given the wide range of views on abortion among self-identified Catholics). Or maybe not — I don’t know.

Perhaps it’s largely a coincidence? Any ideas?

It definitely is a distinctively odd moment in the history of the Supreme Court.