The following op-ed by HLS Professor Noah Feldman appeared in the June 28, 2010, edition of the New York Times. Feldman is the author of the forthcoming book “Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices.”
by Noah Feldman
Five years ago, the Supreme Court, like the United States, had a plurality of white Protestants. If Elena Kagan — whose confirmation hearings begin today — is confirmed, that number will be reduced to zero, and the court will consist of six Catholics and three Jews.
It is cause for celebration that no one much cares about the nominee’s religion. We are fortunate to have left behind the days when there was a so-called “Catholic seat” on the court, or when prominent Jews (including the publisher of this newspaper) urged President Franklin D. Roosevelt in 1939 not to nominate Felix Frankfurter because they worried that having “too many” Jews on the court might fuel anti-Semitism.
But satisfaction with our national progress should not make us forget its authors: the very Protestant elite that founded and long dominated our nation’s institutions of higher education and government, including the Supreme Court. Unlike almost every other dominant ethnic, racial or religious group in world history, white Protestants have ceded their socioeconomic power by hewing voluntarily to the values of merit and inclusion, values now shared broadly by Americans of different backgrounds. The decline of the Protestant elite is actually its greatest triumph.
Like any ethno-racial or religious group, the population of white Protestants is internally diverse. It would be foolish to conflate the descendants of New England smallholders with the offspring of Scandinavian sod farmers in the Middle West, just as it would be a mistake to confuse the Milanese with the Sicilians, or the children of Havana doctors with the grandchildren of dirt farmers from Chiapas, Mexico.
So, when discussing the white elite that exercised such disproportionate power in American history, we are talking about a subgroup, mostly of English or Scots-Irish origin, whose ancestors came to this land in the 17th and 18th centuries. Their forebears fought the American Revolution and wrote the Constitution, embedding in it a distinctive set of beliefs of Protestant origin, including inalienable rights and the separation of church and state.
It is not as though white Protestants relinquished power quickly or without reservation. Catholic immigrants, whether from Ireland or Southern Europe, faced a century of organized discrimination and were regularly denounced as slavish devotees of the pope unsuited to democratic participation.
And, although anti-Semitism in America never had anything like the purchase it had in Europe, it was a persistent barrier. Protestants like Abbott Lawrence Lowell, a great president of Harvard in the early 20th century, tried to impose formal quotas to limit Jewish admissions to the university. The Protestant governing elite must also bear its own share of responsibility for slavery and racial discrimination.
Yet, after the ideals of meritocratic inclusion gained a foothold, progress was remarkably steady and smooth. Take Princeton University, a longtime bastion of the Southern Protestant elite in particular. The Princeton of F. Scott Fitzgerald was segregated and exclusive. When Hemingway described Robert Cohn in the opening of “The Sun Also Rises” as a Jew who had been “the middleweight boxing champion of Princeton,” he was using shorthand for a character at once isolated, insecure and pugnacious. As late as 1958, the year of the “dirty bicker” in which Jews were conspicuously excluded from its eating clubs, Princeton could fairly have been seen as a redoubt of all-male Protestant privilege.
In the 1960s, however, Princeton made a conscious decision to change, eventually opening its admissions to urban ethnic minorities and women. That decision has now borne fruit. Astonishingly, the last three Supreme Court nominees — Samuel Alito, Sonia Sotomayor and Elena Kagan — are Princeton graduates, from the Classes of 1972, ’76, and ’81, respectively. The appointments of these three justices to replace Protestant predecessors turned the demographic balance of the court.
Why did the Protestant elite open its institutions to all comers? The answer can be traced in large part to the anti-aristocratic ideals of the Constitution, which banned titles of nobility and thus encouraged success based on merit. For many years, the Protestant elite was itself open to rising white Protestants not from old-family backgrounds.
Money certainly granted entrée into governing circles, but education was probably more important to the way the Protestant elite defined itself, which is why the opening of the great American universities has had such an epochal effect in changing the demographics of American elites. Another key source was the ideal of fair play, imported from the ideology of the English public schools, but practiced far more widely in the United States than in the class-ridden mother country.
Together, these social beliefs in equality undercut the impulse toward exclusive privilege that every successful group indulges on occasion. A handful of exceptions for admission to societies, clubs and colleges — trivial in and of themselves — helped break down barriers more broadly. This was not just a case of an elite looking outside itself for rejuvenation: the inclusiveness of the last 50 years has been the product of sincerely held ideals put into action.
Interestingly, this era of inclusion was accompanied by a corresponding diffusion of the distinctive fashion (or rather anti-fashion) of the Protestant elite class. The style now generically called “prep,” originally known as “Ivy League,” was long purveyed by Jewish and immigrant haberdashers (the “J.” in the New Haven store J. Press stands for Jacobi) and then taken global by Ralph Lauren, né Lifshitz. But until the Protestant-dominated Ivy League began to open up, the wearers of the style were restricted to that elite subculture.
The spread of Ivy League style is therefore not a frivolous matter. Today the wearing of the tweed is not anachronism or assimilation, but a mark of respect for the distinctive ethnic group that opened its doors to all — an accomplishment that must be remembered, acknowledged and emulated.