Sotomayor, Catholic Supremacy, and Protestant Approaches to Law

The nomination of Sonia Sotomayor to the United States Supreme Court raises the prospect that for the first time in history there will be a supermajority of justices on the same court affiliated to one degree or another with the Catholic Church. Indeed, if her nomination is successful”as most experts believe it will be”half of the Catholics who have ever been on the Supreme Court will be serving simultaneously.

At the same time the number of Protestants on the court will fall to a historic low”with David Souter’s retirement, John Paul Stevens will be the lone Protestant. With Catholic representation on the land’s highest court at its apex, and Protestant representation at its nadir, the question must be asked whether this reflects a shift in the balance of legal influence reflective of underlying deficiencies in American Protestantism.

There is nothing intrinsic to historic Protestantism that would prevent it from cultivating first-rate legal thinkers. The historical evidence in fact points to the rich matrix of social and legal thought that blossomed in the Reformation and post-Reformation periods. Luther’s emphasis on the dialectic of law and gospel helped to set the stage for Philip Melanchthon’s development of the so-called “third use of the law” in his debate over antinomianism with Johann Agricola of Eisleben. It is well-known that John Calvin, whose quincentennary is being commemorated this year all over the world, was educated as a lawyer before he became a theologian and the reformer of Geneva. But beyond these examples it is easy to point to innumerable instances of deep engagement between the reformers and the legal traditions, consisting of both civil and canon law, inherited from the medieval period. We can trace a clear line from the sixteenth to the eighteenth centuries of post-Reformation reflection on the law, including luminaries like Johannes Althusius and Hugo Grotius. Christoph Strohm, a professor of Reformation history at the University of Heidelberg, recently penned a magisterial work on this aspect of the Reformation, Calvinismus und Recht .

This dynamic history of Protestant legal thinking coalesced in an influential form in the heritage of British common law, associated with scholars like Richard Hooker and William Blackstone, which was so important for the American founding. However the places we might instinctively look for a Protestant vanguard, the law schools at Yale and Harvard, are those that have become increasingly secularized and disassociated from their religious roots.

In some ways this transition mirrors the broader development of Protestantism in North America and reflects the close relationship between moral, legal, and political philosophy. While there is a great deal of talk in contemporary Protestantism about “justice””in part because of the severance between theology and law that occurred in major historically Protestant institutions”there is precious little by way of serious pursuit after high-level legal scholarship. It is perhaps easier to pontificate about paving the path of “shalom” in the world than to set about creating and reforming the institutions necessary to realize such lofty goals. Evangelical groups like International Justice Mission stand as noteworthy exceptions to the division between word and deed.

The lack of legal influence and achievement is representative of the broader crisis in Protestant social thinking. James M. Gustafson once described the state of Protestant moral thought as “only a little short of chaos.” If this description was accurate three decades ago, the dysfunction has become even more pronounced in the intervening years. In an essay tracing the development of Protestantism in America from its founding to the present day, First Things editor Joseph Bottum wrote that “somewhere around 1975, the main stream of Protestantism ran dry.” What had once been a unified moral witness has declined into a cacophony of competing voices, not merely on doctrinal issues like infant baptism or the Eucharist, but also on social issues like abortion and poverty.

One part of the solution to these problems in Protestantism is the embrace of the tradition in which Protestant legal thought flourished in the first two centuries following the Reformation. Natural law is not, or at least ought not, be strictly the domain of Catholic moral and legal theorists. The church historian John T. McNeill wrote presciently in 1946 that, “There is no real discontinuity between the teaching of the Reformers and that of their predecessors with respect to natural law.” Sadly McNeill’s recognition of the continuity between the medieval traditions of natural law and those taken up by the reformers has been slow to influence the broader scholarship. It is only within the last few years that the revival or rediscovery of the natural law in Protestant thought has been heralded by significant voices, including J. Daryl Charles , Stephen J. Grabill , John Witte Jr., and David VanDrunen. Witte’s Center for the Study of Law and Religion at Emory University is a particular example of an institutional answer to the reconnection of historic Protestantism and contemporary legal thinking.

Given her own jurisprudential outlook and training, Sotomayor’s nomination to the Supreme Court is not in itself so much an indictment of contemporary Protestant approaches to the law. But in the context of trends in recent decades it does represent a clear warning that even where Protestants are in the game, whether morally, legally, or politically, they are largely playing from behind. And Protestants will continue to do so until they begin again to draw from the same well of wisdom that once nourished centuries of Protestant moral, legal, and political thought: the natural law tradition.

Jordan J. Ballor is associate editor of the Journal of Markets & Morality.