Bench Memos

Re: No Protestant Justices

One of the ugly aspects of the diversity game is that it requires classification of individuals along crude racial lines.  As a younger and wiser Justice Stevens wrote thirty years ago, “If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reich’s Citizenship Law of November 14, 1935.”

The classification of individuals along religious lines may also present delicate and unwelcome issues, especially if the distribution of benefits—such as a Supreme Court seat—turns in whole or in part on the basis of religious affiliation.  What counts?  Self-identification?  Upbringing?  Current or recent practice?  Formal affiliation with, or recognition by, a religious community?  Some combination of these?  Something else?

In this regard, I’ll note, in the context of the prospect that filling Justice Stevens’s vacancy may result in no Protestants on the Court, that I’ve been hearing some folks identify Seventh Circuit judge Diane Wood as a Protestant.  I have zero interest in exploring, much less opining on, this question.  But for the diversity mavens who do, I will note that a Chicago Tribune profile of Wood states:

[Wood’s] family attended Presbyterian church [when she was a child], although [Judy] Lenox [her older sister] said she has lost track of her sister’s church attendance practices. A friend said she has not typically attended services during much of her adulthood.