I very much share Chief Justice Roberts’s sentiment that “divvying us up by race” is a “sordid business,” and I have the same reaction to divvying us up by religion. That said, given how widely played the diversity game is, it’s worth noting that there are often clear winners and losers by the standards of that game.
I was reminded of this point by some interesting and provocative comments that Texas law professor Sandy Levinson made last week in an event that we both took part in at Harvard Law School. Complaining that the “Supreme Court right now is spectacularly undiverse,” Levinson noted the Court’s dominance by graduates of Ivy League law schools, by Easterners, and by former federal courts of appeals judges. He then added:
There’s one last point, incidentally, about diversity. It is certainly a fascinating factoid that there is no practicing Protestant on the current United States Supreme Court. And I, if I had a ranch, I think I would bet it against the probability that the next nominee will be Catholic. And, you know, one doesn’t like to talk about these things publicly, but you know, it is a remarkable change in our lifetime with regard to the demographic composition of the Supreme Court. And whether or not the president is under any pressure to appoint a male to succeed John Paul Stevens, it does seem to me that he would be well advised to look for somebody who can make a plausible claim to being a Protestant.
(The audio recording of the event is available here. Levinson’s discussion of the Court’s lack of diversity can be found at around the 3/4 mark of the recording (which doesn’t have a minute-and-second tracker).)
Will the usual devotees of the diversity game clamor for the next Supreme Court nominee to be a “practicing Protestant” (or even “somebody who can make a plausible claim to being a Protestant”)? Somehow I doubt it.