When Elena Kagan joined the Supreme Court in 2010, there was ample chatter about the fact that there were no longer any Protestant justices on the Court. With six Catholics and three Jews, the Court stood in stark contrast to the bare majority of the country that affiliates as Protestant. Supreme Court appointments are few in number and idiosyncratic, but there’s a broader religious demographic phenomenon that’s harder to explain away as random: the underrepresentation of evangelical Protestants among the American legal elite.
First, some definitions and boundaries. The gold standard for religious affiliation in the United States is the Pew Forum on Religion & Public Life. Using their affiliation categories, here are the breakdowns for the largest religious demographic groups in the U.S.: evangelical Protestant 26%; mainline Protestant 18%; Catholic 24%; historically black church (which would include evangelical and non-evangelical Protestants) 7%; Jewish and Mormon 1.7%; unaffiliated 16%. By “legal elite,” I refer to something with looser boundaries, but still recognizable. Roughly, it would include elite federal judges (Supreme Court and the most prestigious federal circuits); top legal jobs in the executive branch (Solicitor General’s office, White House counsel, etc.); law professors at top-ranked law schools; and various talent pools that feed into the upper echelon of legal jobs (i.e., student bodies at elite law schools; Supreme Court clerkships).
My strong intuition is that evangelicals are grossly underrepresented in the legal elite. To focus again on the (admittedly idiosyncratic) Supreme Court, it’s not just that there are currently no Protestants on the court, it’s that at least since the rise of modern evangelicalism as a political force in 1970s, there has never been an evangelical on the Court. Even though evangelicals have had great success in politics writ large, including the Presidency, Congress, and governorships, they have been conspicuously absent from the top echelons of the federal judiciary.
It’s a good bet that that this underrepresentation stretches back to the beginning of the elite pipeline that feeds the elite echelons. While I’m unaware of any good data on the religious affiliation of law students at elite law schools, my own experience suggests that evangelicals fall far short of their national demographic numbers in elite law school enrollment. Several years ago, David Skeel, Larissa Vaysman, and I conducted an online survey of the religious affiliation of first-year students at a top ten law school (a project we are hoping to continue elsewhere). The 57% of the students who responded provided the following data. Evangelical Protestants comprised merely 7%, compared to the national figure of 26%, while mainline Protestants and Catholics largely maintained their national shares (16% for mainline Protestant compared to 18% nationally, 20% for Catholics compared to 24% nationally). Caveat: this was just one survey and there are all sorts of statistical problems with extrapolating from voluntary online surveys, so take this for what it’s worth. Still, this snapshot resonated with my intuitions about law school enrollments. And it would be very surprising if evangelical Protestants amounted to even 5% of the law professors at the top law schools.
Let me be clear that I’m not starting out to tell a bias or victimization story. The enormous disparity between national demographics and the legal elite (if my intuitions and fuzzy data points are right) could have many different and complicated explanations. Nor am I necessarily taking a position on the normative implications of evangelical underrepresentation. For purposes of this post, I just want to make the empirical point, such as it is. In future posts I will offer some observations on possible explanatory stories and the normative dimensions, if any.