No Protest on Protestants

July 24, 2009
Posted by Jay Livingston

The conservative reaction to the Sotomayor nomination amply illustrated invisibility cloak worn by privilege. When some characteristic is the default setting (like white male for Supreme Court justices), it goes unnoticed, and we never think to ask what its effect might be. Only when someone doesn’t conform to the default do we worry about the influence their experiences might have. (See my earlier post here.)

Andrew Gelman posting at fivethirtyeight.com finds another example. The New York Times asked “legal experts” what questions they might like to ask at the hearings. Blogger Ann Althouse summoned up her legal expertise to ask.

If a diverse array of justices is desirable, should we not be concerned that if you are confirmed, six out of the nine justices will be Roman Catholics, or is it somehow wrong to start paying attention to the extreme overrepresentation of Catholicism on the court at the moment when we have our first Hispanic nominee?

Gelman reminds us – and provides a graph, of course, to show – that for nearly all of its history, the Court had an overwhelming majority of Protestants. Yet in all that time, no legal experts seem to have been concerned or even to have noticed.

I can't imagine that, when, say, Charles Evans Hughes was being nominated for his Supreme Court seat, that somebody asked him: “Is it somehow wrong to start paying attention to the extreme overrepresentation of Protestantism on the court at the moment when we have our umpteenth white nominee?”