Where Have All The Justices Gone?

Most evangelicals are happy about Judge Amy Coney Barrett’s nomination to the Supreme Court Bench. But they ought to also be asking themselves a question.

In 1965 Pete Seeger asked a question. Where Have All The Flowers Gone? His folk song became an anthem against the Vietnam War. I have an anthem for American Christianity, especially evangelical Protestantism: Where Have All The Protestant Justices Gone?

Here’s why I ask. Judge Barrett will be President Trump’s third appointee. All three are Roman Catholics. If confirmed, the Court will have seven Roman Catholics – if you count Neil Gorsuch who was raised Catholic and has attended an Episcopal Church – and two who are Jewish.

Nothing wrong with this. But note the trend. In the Court’s first 180 years, justices were almost always Protestants. The first Catholic justice was Roger B. Taney (1836). The 20^th century saw the first appointment of justices who were Jewish (Louis Brandeis, 1916), African-American (Thurgood Marshall, 1967), female (Sandra Day O’Connor, 1981) and Italian-American (Antonin Scalia, 1986). By 1994, Protestants were no longer an absolute majority.

The 21^st century saw the first appointment of a Hispanic Judge (Sonia Sotomayor, 2009). It also marked the total absence of Protestant Justices on the bench. That’s not necessarily a bad sign, as the Court ought to have the most qualified justices. But it’s a telling sign.

It’s telling because each of the Supreme Court justices studied in a law college started by Protestants. And Protestants are an estimated 60 percent of the US population. And about half of those are evangelical. Why then has evangelical Protestantism, 30 percent of the population, failed to produce a single person in this generation nominated to the Supreme Court?

I can think of a reason: the American version of evangelicalism is strikingly different than European evangelicalism. The European version featured graduates like Lord Thomas Babbington Macaulay. A child of the evangelical Clapham Sect, he wrote The Indian Penal Code in the late 1830s. It was published in 1848 and has governed India since 1862.

European evangelical Protestantism helped found America’s first colleges. They featured law schools. So did Roman Catholic colleges. When Protestant colleges went liberal in the 1800s, American evangelicals began to flee them, forming new evangelical institutions. But hardly any of these evangelical colleges featured a law school. The reason is simple. American evangelicalism focused more on saving sinners than societal reform. Historian George Marsden details this in his book, Fundamentalism and American Culture.

This narrow understanding of the gospel was buttressed by Scofield’s Bible a century later. Scofield taught that we do not live in the Dispensation of the Law. We live in the Dispensation of Grace. We should not be teaching law. We should be teaching grace and salvation.

The result was populism, a belief in the power of everyday people to change the world. No special talents or rigorous education required. Populism is very democratic, very American, which is why historian Nathan Hatch says it’s “the deepest impulse” in American evangelicalism.[1]

But it’s incorrect. “Truth is not democratic;” wrote C. S. Lewis, “she demands special talents and special industry in those to whom she gives her favors.”[2] Justices have to earn the right to be nominated to the US Supreme Court. It takes more than grace and the Holy Spirit. Failing to recognize this is why no evangelical has been recently nominated to the Supreme Court.

Evangelicals have also failed to recognize that genuine democratic education – the education that preserves democracy – will be “ruthlessly aristocratic,” Lewis wrote.[3] Kudos to Catholic colleges for remembering this and building some of our nation’s top law schools.

And kudos to a few evangelical Protestant colleges that have launched new law schools over the past several decades. It will take many more decades for them to become recognized as some of our nation’s best. But it’s a heartening step in the right direction.

[1] Nathan Hatch, The Democratization of American Christianity (Yale University Press, 1991)

[2] C. S. Lewis, “Democratic Education,” in Present Concerns, ed. Walter Hooper (Harcourt Brace Jovanovich, 1986), 34.

[3] C. S. Lewis, The Screwtape Letters & Screwtape Proposes a Toast, (Macmillan, 1959 and 1961), 166ff.