This is the third and last post in my mini-series on evangelical underrepresentation among the legal elite. My first post presented the claim that evangelicals are underrepresented and the second asked why this might be. To conclude, I want to ask whether it even matters and, if so, in what ways. I’ll limit myself to three somewhat random observations.
First, evangelicals don’t seem to care too much about their underrepresentation in the legal elite. Although there have been a few murmurings about the lack of an evangelical on the Supreme Court, evangelicals seem to be much more interested in judicial appointments that will vote for outcomes favored by evangelicals than on the religious identity of the appointees. Thus, for example, after the Supreme Court nomination of evangelical Harriet Miers fell apart (and to repeat a point from yesterday’s post, observe that Miers, an SMU Law grad, lacked “elite” credentials), there seemed to be no great reaction from evangelicals when John Roberts, a Catholic (who undoubtedly had elite credentials), was picked instead. The choice of Sam Alito, a Catholic, over one of the (very few) plausible evangelicals (like Mike McConnell) barely registered.
That evangelicals by and large feel “represented” by conservative Catholics in the upper echelons of the legal system is interesting in many ways. One interpretation is that evangelicals accept that viewpoint rather than identity is what matters to representation—a claim that has all sorts of implications for other kinds of “diversity” questions (i.e, do liberal whites adequately represent the interests of liberal African-Americans?).
Another implication—and I’ll go ahead and say it although I know I’ll get pushback (perhaps even assassination)—is that evangelicals care about identity, but increasingly understand evangelical and conservative Catholic identity as converging. Is it possible that, in the post-Vatican II world, evangelicals and Catholics are beginning to see themselves less as mere political allies and more as sharing a common identity in the loyal and traditionalist wing of Christendom? This is clearly happening at least at the margins (witness the growth of evangelical Catholicism and liturgical revivals within Protestant evangelicalism, for example).
A second point: Does evangelical underrepresentation in elite legal jobs matter to the way law is performed? In his wonderful book Constitutional Faith, Sandy Levinson draws parallels between the competing Catholic and Protestant traditions on textualism, authority, and tradition and similar debates in law. In Levinson’s terminology, a “Protestant” judge would assert that (scriptural) constitutional text trumps tradition and that all citizens are equally entitled to interpret the (scriptures) Constitution for themselves (i.e., paralleling the “priesthood of all believers”). By contrast, a “Catholic” judge would assert that tradition may be more important than textual exegesis and that the “priesthood” of judges are the ultimate interpreters of the Constitution.
If it were the case that Protestants in general, and evangelical Protestants in particular, were likely to follow a “Protestant” disposition as judges or other legal elites, then the underrepresentation of evangelicals might matter to the construction of law. Or, at least it would matter in the sense that legal outcomes would be systematically different if there were more evangelicals among the legal elite. But, in fact, there seems to be little evidence that judges who are Protestant, Catholic, Jewish or anything else are particularly more likely than others to follow a “Protestant” or “Catholic” approach on textualism, authority, and tradition. For example, as Levinson showed, the notoriously anti-Catholic Hugo Black scores as “Protestant” on textualism but “Catholic” on judicial authority.
Finally, if I’m not convinced that evangelicals would systematically display traditionally Protestant approaches to texts, authority, and tradition, I do think that a greater evangelical presence among the legal elite might have an important effect on the development of law in another way. The defining element of modern American evangelicalism is its individualistic experientialism, its insistence on a personal born-again experience, its adherence to what religion critic Harold Bloom defines as the key trait of any genuinely American religion—walking alone with Jesus in the wilderness. To be an evangelical means to know Jesus in the heart.
It is not hard to see the misfit between evangelicalism’s experiential epistemology and law as a rationalistic, deductive system. But to a pointy-headed legal academic like me, the portrayal of law as rationalistic and deductive seems so nineteenth century. In the post-realist, post-modern world, law is increasingly understood as personal, subjective, and even experiential. To take just one small example, the whole “expressivist” strand of contemporary legal scholarship is about how law is received, understood, internalized, and experienced.
Although evangelicals may not understand this well, modern legal thought may be very much up their alley. It would be a shame if evangelicals continued to stand on the sidelines while the legal academy, the courts, and other legal institutions worked through the implications of law in the post-modern world—something about which evangelicals should have lots to say.
Why would we need to have a Supreme court justice for each denomination? Seems ridiculous to me. We are all Christians are we not? Why do we need our specific brand of Christianity to be the ruler? Christ was all about ‘power under’ anyway…. shouldn’t that be our model as well?
I think you are confusing “soli scriptura” with “sola scriptura”. “Sola scriptura” in the Protestant tradition does not throw tradition out in favor of a sole and subjective interpretation of Scripture. It subordinates tradition to the primary authority of Scripture. In the Constitutional sense, then, the original exegesis is primary but the precedent still holds authority. Precedent’s authority is secondary only to the authority of the original text.
That’s not to say some Protestant denominations do not employ “soli scriptura”. Some do. They are not in keeping with the spirit of the Reformation, though.
Thomas Cranmer:
“Sola scriptura” reduces in practice to “soli scriptura.” The distinction is a sincere one in the mind of the person arguing for it, but turns out to be a false one when one attempts to live it out without giving in to indifferentism.
The person who claims to integrate tradition always picks a tradition to follow; the person who claims to obey the authority of a church always first chooses (on his own authority) under which church authority he will place himself. He then weeds out certain traditions as unreliable because they’re not in accord with Scripture (in his view); or he splits from his church and joins/starts a new one when he finds that his existing church is not correctly interpreting Scripture or Tradition (in his view). His attention to tradition and authority is thus contingent on his individual authority: Soli Scriptura.
Check the website Called to Conversion for additional details; the topic has been covered exhaustively for some years now.
R.C., with all due respect, I can see how a Roman Catholic website devoted to Protestants “swimming the Tiber” might have come to a consensus against sola scriptura after “some years” of discussion.
Again, I do not deny that many in the Protestant (using the term loosely) denominations engage in soli scriptura. The point here, though (fully accepting the tendency of human sin to make oneself the authority… much like how one might choose the Roman tradition over the Eastern tradition and make the head of one’s church the universal pontiff over Eastern objections… just something else to consider), is ecclesia semper reformanda est… “the church is always to be reformed”. On what basis does one do that? I would hope it would be the authority of the original Word of God delivered to the authors of inspired Scripture.
Sola scriptura is the faithful effort to hold to the truth of the Gospel. While many confessional Protestants hold to their respective confessions, many within those traditions are challenging confessional orthodoxy. Puritanism upsetting the Elizabethan Settlement, Arminianism within Calvinism, Pietism, the Finnish interpretation of Luther, the New Perspective on Paul. And then you have the defenders of the doctrines given by Augustine and the Reformers. All are trying to get at what has been revealed by God to man. And the clearest and best authority of that is Holy Scripture, as messy as that process is.
I am sure Mr. Crane did not intend for his very thoughtful blog post to be the impetus of another fight over the Reformation. Certainly, I have been asking myself the very question he presents here. The difficulty I see with a “Catholic” approach to jurisprudence is that precedence and the original text of the Constitution are co-equal (now I may be butchering legal thought, in which case I welcome correction). If so, how does one justify striking Roe v. Wade or Dred Scott down? Just like how does one remove oneself from the cement shoes of the Council of Trent or Unigenitus? Certainly, Vatican II sought to do to whatever degree it could that but the previous two are still authoritative.
With a “Protestant” jurisprudence based on sola scriptura, Dred Scott and Roe v. Wade can easily be viewed as unconstitutional and struck down with no heartburn whatsoever. The Constitution itself is the sole authority. The same could be said with revoking Trent and Unigenitus (and Constance vs. Huss, etc.) so we could undertake the ecumenical project without tricks and dead-ends (Joint Declaration on Justification).
Those are my thoughts. I welcome disagreement and correction (especially on the jurisprudence piece). Sola fide!
Thanks everyone for your spirited comments. I didn’t mean to prompt a theological debate over sola scriptura, but it’s fine with me if we have it. What’s interesting to me as a law professor is that there doesn’t seem to be much correlation between judges who are Catholic and a “catholic” mode of jurisprudence or Protestant judges and a “protestant” mode of jurisprudence.
Mr. Crane,
This is interesting to me as well. I think your previous look at class and social status was really interesting. The last Protestant justice (John Paul Stevens) would have been a mainline Protestant… liberal in both theology and Constitutional interpretation. The former would have been a very skeptical and subjective view of Scripture. Certainly of church tradition. It would have been that sort of theological environment that he would have brought to his understanding of authority.
It seems to me that the correlation is not Protestant/Catholic (theologically speaking) but orthodox/revisionist (also theologically speaking). The justices who strictly interpret the Constitution tend to be those who are traditionalist in their theology. Bending the knee to an authority outside themselves. An exception could be made in the future for an Objectivist, I suppose, if there are any left.
That doesn’t answer your question about why there are no Protestants on the Court. I worked for Bill Pryor for a time and he is Catholic, too. Could it be a long tradition of scholasticism? Jesuit emphasis on that (and casuistry, if I might add) as a foundation for education? Certainly, Jewish thought is absorbed in law as well.
Traditional Protestant grace theology? Not as much. A very sharp distinction between law and gospel in traditional Protestant theology… quite unlike the Roman Catholic view of Christ as the “perfect law-giver”.
I’m glad I came across your work. Fascinating topic.