There's much talk these days about diversity being desirable, but the testimony hasn't been admitted in the Supreme Court chamber.
If Elena Kagan is confirmed to replace Justice John Paul Stevens, every member of the Court will be a graduate of either Harvard Law or Yale Law. Justice Stevens, who has announced his retirement, attended Northwestern Law. The Court didn't suffer.
What does this exclusivity say to students at any of the other hundreds of law schools in America? “Curb your dreams. You'll never get one of the top jobs.” What sort of justice can we expect from a court that accepts the Clarence Thomases and excludes the Bill Wilsons?
Another distinction, even more important, will leave with Stevens. He is the last Protestant on the court. With Stevens gone, the biggest religious group in the country, “the non-Catholic Christians,” as some surveys call them, will not have a single representative on the court, although they account for more than half of all the Americans who call themselves religious.
One-fourth of the religious population is Catholic, yet Catholics hold six seats – two-thirds – on the court. Religious Jews, who constitute one percent of the population, will hold the other one-third of Supreme Court seats if Kagan is approved.
It is not a coincidence that Justice Stevens is a strict separationist of church and state, vigorously upholding the First Amendment's guarantee of religious freedom. Just last month, a five-Catholic majority overruled a lower court order that a statue of a cross be removed from public land. The majority held, more or less, that everybody loves a cross. Justice Stevens dissented: “The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.” And not, we'll add, for those who are Jews or Muslims or Buddhists or atheists.
In another case, Stevens dissented from a ruling that upheld voucher subsidies for private schools. He noted that most of the public funds went to religious institutions. Most of these were Catholic.
“Whenever we remove a brick from the wall that was designed to separate religion and government,” Stevens wrote, “we increase the risk of religious strife and weaken the foundations of our democracy.”
There's reason to fear for religious freedom when two-thirds of the Supreme Court justices are members of a sect that disrespects the wall of separation between church and state, and is instead the principal force behind repeated efforts to send public money to private schools. And when anyone who sounds the alarm is accused of religious bigotry.