A Fundamentalist Mystery: Protestants and the Supreme Court

Why aren’t conservative Protestants more interested in the religious makeup of today’s US Supreme Court?  Today’s Court is made up of six Catholics (Scalia, Thomas, Roberts, Kennedy, Alito, Sotomayor) and three Jewish members (Breyer, Ginsburg, Kagan).  Fundamentalist Protestants are intensely interested in the Court, since it has turned into the government agency most closely associated with ultimate decisions about abortion, gay rights, and religion in the public square.  At nearly any other time in American history, the notion that once-dominant Protestantism wouldn’t even have a representative on the Court would have sparked ugly and angry denunciations of the Court’s legitimacy.  Today, I don’t hear much about it.  Just before the most recent new justice, Elena Kagan, was nominated, a Gallup poll asked respondents if they cared if the new judge was Protestant. Only 7% of respondents thought it was “essential.”  This indifference is puzzling.  Is it simply due to the fact that the cultural animosity between Protestants, Jews, and Catholics has been overcome by other cultural identities?  This was James Davison Hunter’s thesis in his 1992 book Culture Wars.  He argued that the differences between groups had diminished, in favor of a more important distinction between orthodox and progressive variants of each individual group.  One of contemporary evangelicalism’s premier evangelicals agreed.  In a 2010 article in the evangelical magazine Christianity Today, historian Mark Noll noted that evangelicals have given “intense” support to the nomination of conservative religious justices, even when those justices were Catholic.  More decidedly fundamentalist Protestant intellectuals agreed.  Mathew Staver, dean of the Liberty University law school, noted in the same CT article, “I don’t think a person’s religious affiliation matters as much as their judicial philosophy.”

It makes sense.  But anyone familiar with the bitter twentieth-century hostility of many conservative Protestants to Catholicism might find this explanation a little too pat.  Has it really dissipated to such a remarkable extent?  Are there other likely explanations for the deafening silence among America’s Protestant fundamentalists on this issue?