Could Elena Kagan's Confirmation Signal End of Protestant Era on the Supreme Court?

May 11, 2010— -- When Supreme Court Justice John Paul Stevens retires this summer, and if Solicitor General Elena Kagan is confirmed, the nation's highest court will have no Protestant members for the first time in American history.

In addition to Stevens, who is the sole Protestant on the bench, there are currently six Catholics and two Jews -- Justices Ruth Bader Ginsburg and Stephen Breyer -- on the bench. Kagan, who is Jewish, would be the third.

At least one Protestant justice has served at all times since the Supreme Court was established in 1789. But the importance of religion when it comes to choosing and confirming Supreme Court justices has declined considerably over time, scholars say. There are other factors that have since come to the forefront, such as gender and race.

"Religion used to be the most important consideration for the court. There was a Catholic seat, there was a Jewish seat," said Jeffrey Rosen, a professor of law at George Washington University and author of "The Supreme Court." "Recently, it hasn't mattered at all.

At a time when a majority of Americans call themselves Protestant, "it's a fascinating truth that we've allowed religion to drop out of consideration on the Supreme Court, and right now, we have a Supreme Court that religiously at least, by no means looks like America," Rosen said.

A Gallup poll released earlier this month found that a majority of Americans did not care whether President Obama picked a Protestant to fill Stevens' seat. Only 7 percent of those polled said it was essential that he pick a Protestant, while 66 percent said it did not matter.

The lack of importance given to the justice's faith signals a dramatic shift in the way Americans think about religion.

"As long as there's something of a mix, as long as no one religion occupies every seat on the court, it's not an issue that most voters in this day and age find to be very salient," said Guy-Uriel Charles, a professor of law at Duke University.

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Historically, the U.S. Supreme Court was composed mostly of white, male Protestants, but over time, religion became a more defining factor, with special attention paid to appointing non-Protestant justices. The first Catholic justice, Roger Taney, was appointed in 1836, and the first Jewish justice, Louis Brandeis, in 1916.

For much of the 20th century, the court had, as Rosen pointed out, a Catholic seat and a Jewish seat. However, U.S. presidents didn't always pay attention to that. In 1969, following the resignation of Justice Abe Fortas, President Nixon filled what was considered the Jewish seat with a Methodist, Harry A. Blackmun.

In 1949, President Truman appointed Justice Sherman Minton to the Catholic seat. Minton's wife was Catholic but, at the time, he identified as a Protestant.