Growing up, one of the surest signs to me of the quiet by endemic antisemitism that persisted in the United States was the relative lack of Jews on the U.S. Supreme Court.
Sure, Jews never made up more than 2 to 3 percent of the U.S. population, so the bare handful to have been appointed from 1789 through 1993 wasn’t bad considering our representation in the population as a whole. But the legal profession, well, that’s a different story.
At the risk of perpetuating even a positive stereotype, the professions, that’s kinda our schtick, and so over the three decade drought between the confirmations of Abe Fortas and Ruth Bader Ginsburg, a string of presidents had to pass up an awful lot of Jewish legal scholars to a degree that just wasn’t true for other minority groups. Imagine over the same period of time, if Hollywood executives had refused to hire Jewish comedy writers; that’s sorta like what our nation’s highest court looked like to me.
Now, with the appointment of Elana Kagan, the Supreme Court is about to become a full one-third Jewish, a presence pretty far out of whack with the general population, but which is actually unremarkable considering the composition of top New York and D.C. law firms. In fact, the truly notable statistic here, is that with Justice Stevens’ retirement, for the first time in its history the court will now be zero percent Protestant.
It’s been 20 years since a WASP, Justice David Souter was last confirmed, a period during which the court has seen a stunning transformation. In 1985, Justice William Brennan, a Catholic, was the only non-Protestant on the bench, and had been since Fortas retired in 1969 after the Senate refused to confirm his elevation to Chief Justice. Since 1986, six Catholics and two Jews have been confirmed.
To put that in perspective, over the court’s first century, 49 of the justices were Protestant, and one was Catholic. Over the next 97 years religious diversity improved, with six Catholics and five Jews joining 41 Protestants on the bench. But over the last quarter century, the once dominant WASPs will have been outnumbered nine to one.
How to explain this phenomenon? Well, I guess it’s only fair to assume that our nation is not nearly as bigoted and narrow minded as it once was, at least when it comes to religion. There is no “Jewish seat” or “Catholic seat” on the court anymore. Religion no longer appears to be an issue when it comes to Supreme Court appointments or confirmation.
Or is it?
It is curious to note that five of the six Catholics on the court were appointed by Republicans, while all of the Jews were appointed by Democrats, and it’s hard to chalk this up to mere coincidence. In fact, at the risk this time of perpetuating a cynical stereotype, it’s hard not to chalk this up to the increasingly threatened status of Roe v. Wade.
This is not to suggest that all Jews are reliably pro-choice, or that all Catholics are not. I myself married into an Irish Catholic family that is pretty strongly pro-choice, at least politically, if not always as a matter of personal conscience. But let’s just say that, in general, Catholics are much less reliably pro-choice than Jews, and vice versa.
Thus a conservative Catholic appointment has proven a pretty safe bet for any anti-choice president wishing to avoid an overt litmus test, as evidenced by Justices Scalia, Kennedy, Thomas, Alito and Roberts, and as opposed to the last two Protestant appointees, Justices Souter and Sandra Day O’Connor, who both disappointed Republicans on this issue. Meanwhile, I think we can count on Kagan to be as reliably pro-choice as Ginsburg and Breyer.
I suppose I could be wrong, and the religious composition of the court is merely coincidental, or at the very least, incidental. But it sure doesn’t seem likely.
We need a seat for an atheist, at least.
We need a Lutheran seat. Of course, the last guy to fill that seat, Rehnquist, was a disaster for jurisprudence.
Don’t forget that until the 1960’s, there were often unofficial “quotas” for admitting jews into the leading law schools in the U.S. Not a quota requiring a certain number of jews, but a quota LIMITING the number of admissions spots available for jews. For those with long memories (and most legal scholars tend to have LONG institutional memories), this experience might have an impact upon cases involving affirmative action, etc.
Goldy, I think your analysis of the Roe v Wade litmus test is mostly correct.
And while there is nothing wrong with eastern Catholics and Jews, the SCOTUS is really out of whack when it does not include a single mid western Protestant.
Diversity is a good thing.
Interesting analysis, Goldy. Never thought of the pro-life, pro-choice issue playing such a major role in the very skewed religious representation on the U.S. Supreme Court. What a pity that both Democratic and Republican presidents in the last 20 years or so have considered this one issue so important, that they may have picked people from particular religious groups as added insurance that the justice would adhere to a particular position on abortion.
There has been a lot of emphasis on the U.S. Supreme Court looking “more like America” in recent appointments. If Kagan is confirmed, we will have three out of nine women (still 1.6 seats less than general population ratio, even a bit less than ratio of female lawyers), one person of black heritage (1/9 is about population ratio), and one person of Latino heritage (1/9 is about population ratio).
But the Court sure doesn’t “look like America” when it comes to the religious issue. When you consider that something under one-third of the U.S. population is either Jewish or Catholic (1.7% and 23.9% respectively for adherents, plus some slice of the 16.1% of population that is not religious, but may be of Jewish or Catholic heritage), the statistic imbalance is very dramatic.
If you assume that 1 out of every 3 people in the U.S. is either a follower of the Jewish or Catholic faith, or a nonreligious person of Jewish or Catholic heritage, the odds against randomly choosing nine justices, all of whom are Jewish or Catholic, is something like 19,682 to 1.
Here is my source of religious statistics, from Wikipedia:
http://en.wikipedia.org/wiki/R.....ted_States
Of course, by appointing a women to fill the current opening (a vacancy by a male), Obama can then appoint a male when Ruth Bader-Ginsberg retires. That should permanantly get us out of the habit of trying to preserve one or more “women’s seats” on the Supreme Court.
Of course, with all the speculation by pundits about race, gender, etc. among nominations to the court, it’s quite possible that Obama is simply following a policy of naming the best available person for the job.
# 5: So how long do we wait for a person to fill the Asian/Buddist seat on the court? ;-)
what does one’s region have to do with anything in the first place? what are these so called “western values” some people want on the court anyway….bitching about gummint while you suck all the water from the gummint built irrigation system? that’s the kind of values we need on the court?
If you wanted a supreme court justice from the west, gregoire should have done a heck of a lot more for obama. then she should have run hard for a cabinet seat. then she would have been positioned to grab this nomination or at least have a chance. she was super lawyer of the year a few years back.
is it western shyness ?
or just lack of ambition, or no pushiness?
are new yorkers smarter or just more ambitious?
we’ll have three on the court.
you gotta problem with that?
@7: As a practicing “buddist”, I say don’t bogart this judge!
rhp @7,
I think more interesting, is how long to wait for a person to fill the Mormon seat?
Right-wing Protestants are widely regard as crazy by the general population I think, not so with right-wing Catholics.
ex new yorker @8,
At 63, Gregoire is already too old. The Bushies set the standard picking young justices, and the Democrats need to match that in order to balance the court over the years. I doubt we’ll see an appointee older than 55 anytime soon.
@8:
There are very few people who have actually lived here would want to live anywhere East of Colorado, let alone DC.
In fact, we could whack the country off just East of the Black Hills and it would be a massive improvement, assuming we could give Texas back to Mexico, of course.
Seriously, I have a lot of respect for people like Norm Dicks who has sacrificed 40+ years away from Hood Canal and Western Washington to serve in Congress.
@8: Another reason that Gregoire would be a very poor (and scary) choice:
Imagine Governor Sir (gag) Brad Owen.
@1, 10
How long until we get a atheist on our secular nations highest court?
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I think the Roe V. analysis is spot on.
@13 “There are very few people who have actually lived here would want to live anywhere East of Colorado, let alone DC.”
That might explain why when the Court wasn’t in session, William O. Douglas would abscond to his place in Goose Prairie, which is so isolated that what electric power there is comes from diesel generators (including the Boy Scout camp where the engines’ cooling water heats the pool) and the nearest telephone is 22 miles away.
It does seem rather surprising that given the last President’s supposed religious ferver and the efforts of his administration to deliver social services through “faith-based” organizations, that he didn’t make more of an attempt to put at least one rock-ribbed Protestant fundamentalist on the Court.
Thanks ArtFart for mentionIng Wm O Douglas, who sat on the Court after having helped tidy up a mess on Wall Street. Familar melody.
And on that biznez about no Midwest protestants on the Court, I haven’t looked in on Wingnuttia today but I imagine it’s an IOKIYAR deal, Democrats will be held to a different standard, and required to nominate a Baptist. Really wish a liberal, just one liberal sat on this Court. Maybe someday the Democrats will come back.
Mentioning Douglas brings up a subject which might be relevent at some point here.
Being a Supreme Court justice severely limits your future income. If you have already accumulated some wealth, you pretty much have to put it into a blind trust – otherwise, just about every decision relating to corporate or tax law could be a potential conflict of interest.
Your future income is restricted pretty much to your salary and some modest speaking fees – people don’t pay much to hear a supreme court justice talk, especially when they can’t say anything about subjects or personalities which might come before the court. The same applies to book royalties – it’s extremely difficult to publish a “marketable” book within the restrictions of the cannons of judicial ethics. Douglas needed more money (to pay for his three divorces), so he headed the Parvis Foundation, which provided Gerald R. Ford an excuse to seek his impeachment (which failed).
Remember, also, that it’s a lifetime appointment. Theoretically someone COULD be a justice of the Supreme Court, then resign and go to work for a law firm making a huge amount of money. But to my knowledge, no one has (at least not in modern times).
So what kind of person wants to be a Supreme Court Justice? Certainly it’s someone who wants to imprint the nation’s laws with their own view, and someone who either doesn’t care about making a lot of money, or has already done so.
19
Any attorney, at least any litigator, who would not thrill to the intellectual challenge of being one of the Supremes probably is in the wrong profession.
I’m very excited about Elena Kaga, especially after reading about her college papers.
I’m sure the wingnuts will go crazy over this but all we have to do is say they hate women.
great, another fucked up nutball socialist…just what we need. I bet she fucking cried tears of agony for a week when the Berlin wall came down…