Tag Archives: Sociology of Religion

This is the third and last post in my mini-series on evangelical underrepresentation among the legal elite.  My first post presented the claim that evangelicals are underrepresented and the second asked why this might be.  To conclude, I want to ask whether it even matters and, if so, in what ways.  I’ll limit myself to three somewhat random observations.

First, evangelicals don’t seem to care too much about their underrepresentation in the legal elite.  Although there have been a few murmurings about the lack of an evangelical on the Supreme Court, evangelicals seem to be much more interested in judicial appointments that will vote for outcomes favored by evangelicals than on the religious identity of the appointees. Thus, for example, after the Supreme Court nomination of evangelical Harriet Miers fell apart (and to repeat a point from yesterday’s post, observe that Miers, an SMU Law grad, lacked “elite” credentials), there seemed to be no great reaction from evangelicals when John Roberts, a Catholic (who undoubtedly had elite credentials), was picked instead.  The choice of Sam Alito, a Catholic, over one of the (very few) plausible evangelicals (like Mike McConnell) barely registered.

That evangelicals by and large feel “represented” by conservative Catholics in the upper echelons of the legal system is interesting in many ways.  One interpretation is that evangelicals accept that viewpoint rather than identity is what matters to representation—a claim that has all sorts of implications for other kinds of “diversity” questions (i.e, do liberal whites adequately represent the interests of liberal African-Americans?). 

Another implication—and I’ll go ahead and say it although I know I’ll get pushback (perhaps even assassination)—is that evangelicals care about identity, but increasingly understand evangelical and conservative Catholic identity as converging.  Is it possible that, in the post-Vatican II world, evangelicals and Catholics are beginning to see themselves less as mere political allies and more as sharing a common identity in the loyal and traditionalist wing of Christendom?  This is clearly happening at least at the margins (witness the growth of evangelical Catholicism and liturgical revivals within Protestant evangelicalism, for example).

A second point:  Does evangelical underrepresentation in elite legal jobs matter to the way law is performed?  In his wonderful book Constitutional Faith, Sandy Levinson draws parallels between the competing Catholic and Protestant traditions on textualism, authority, and tradition and similar debates in law.  In Levinson’s terminology, a “Protestant” judge would assert that (scriptural) constitutional text trumps tradition and that all citizens are equally entitled to interpret the (scriptures) Constitution for themselves (i.e., paralleling the “priesthood of all believers”).  By contrast, a “Catholic” judge would assert that tradition may be more important than textual exegesis and that the “priesthood” of judges are the ultimate interpreters of the Constitution.

If it were the case that Protestants in general, and evangelical Protestants in particular, were likely to follow a “Protestant” disposition as judges or other legal elites, then the underrepresentation of evangelicals might matter to the construction of law.  Or, at least it would matter in the sense that legal outcomes would be systematically different if there were more evangelicals among the legal elite.  But, in fact, there seems to be little evidence that judges who are Protestant, Catholic, Jewish or anything else are particularly more likely than others to follow a “Protestant” or “Catholic” approach on textualism, authority, and tradition.  For example, as Levinson showed, the notoriously anti-Catholic Hugo Black scores as “Protestant” on textualism but “Catholic” on judicial authority.

Finally, if I’m not convinced that evangelicals would systematically display traditionally Protestant approaches to texts, authority, and tradition, I do think that a greater evangelical presence among the legal elite might have an important effect on the development of law in another way. The defining element of modern American evangelicalism is its individualistic experientialism, its insistence on a personal born-again experience, its adherence to what religion critic Harold Bloom defines as the key trait of any genuinely American religion—walking alone with Jesus in the wilderness.  To be an evangelical means to know Jesus in the heart.

 It is not hard to see the misfit between evangelicalism’s experiential epistemology and law as a rationalistic, deductive system.  But to a pointy-headed legal academic like me, the portrayal of law as rationalistic and deductive seems so nineteenth century.  In the post-realist, post-modern world, law is increasingly understood as personal, subjective, and even experiential.  To take just one small example, the whole “expressivist” strand of contemporary legal scholarship is about how law is received, understood, internalized, and experienced.

Although evangelicals may not understand this well, modern legal thought may be very much up their alley.  It would be a shame if evangelicals continued to stand on the sidelines while the legal academy, the courts, and other legal institutions worked through the implications of law in the post-modern world—something about which evangelicals should have lots to say.

In a recent post, I asserted that evangelical Protestants are dramatically underrepresented compared to their national demographic figures in the American legal elite.  In this post, I ask why that is the case.  Let me make clear at the outset that I want to avoid causal reductionism, particularly of the kind that leads to easy imputations of blame.  The causes of this phenomenon are surely complex.

Let me begin by offering a thesis:  An important contributing factor to evangelical underrepresentation in the legal elite is evangelical underrepresentation in student enrollments in elite law schools.  Since the American legal elite is overwhelming staffed with graduates of elite law schools, there is at least a strong association between evangelical underrepresentation in student enrollments and the upper echelons of politically important legal jobs.  Since law school pedigrees are very important to securing elite jobs, then it is likely that evangelical underrepresentation in elite law schools provides a significant explanation for evangelical underrepresentation in the legal elite.

In my last post, I asserted (based on admittedly casual evidence) that evangelicals seem to be dramatically underrepresented (again compared to their national demographic percentage of 26%) in elite law student enrollments.  I can’t improve on that assertion for now, but I can provide some evidence on the importance of an elite law school pedigree for securing elite legal jobs.

A few snapshots:  Since 1970, the law school pedigrees of the thirteen Justices appointed to the Supreme Court are:  seven from Harvard, three from Yale, two from Stanford, one each from Columbia, Northwestern, and Washington & Lee.  Attorney General appointments since 1970:  Harvard (5), Chicago (2), Yale (1), Columbia (1), Berkeley (1), George Washington (1), Pittsburgh (1), Maryland (1), Ohio State (1), and Mercer (1).  Solicitor General appointments since 1970:  Harvard (3), Yale (2), Columbia (2), Chicago (2), Berkeley (1), Virginia (1), Duke (1), George Washington (1).  Among the current active or senior status judges on the D.C. Circuit, which is the top feeder circuit to the Supreme Court (with four current Justices having come from the D.C. Circuit), the figures are:  Harvard (4), Chicago (2), North Carolina (2), Yale (1), Virginia (1), Penn (1), Michigan (1), and UCLA (1).  To put a bow on this, of the 54 elite lawyers included in the foregoing lists, only 10 did not attend a traditional Top 10 law school (and the number falls to 8 if Northwestern and Duke, traditional Top 14 law schools, are included).

To bring things closer to home, consider the JD pedigree of faculty at my current employer, the University of Michigan Law School.  On the tenure or tenure-track faculty, the figures are as follows for faculty with a U.S. JD or LLB:  Yale (16), Harvard (9), Columbia (2), Michigan (2), NYU (2), Berkeley (2), Stanford (1), Virginia (2), Chicago (1), George Washington (1), Wisconsin (1).  These figures are broadly representative of the faculty at top law schools.

Now back to evangelicals and elite legal jobs.  If evangelicals are (and historically have been) underrepresented in student enrollments at the Top 10 law schools, which is the opening of the elite pipeline, it will be no surprise that they are underrepresented in the upper echelons of legal jobs.  So why are evangelicals underrepresented in elite law school student bodies?  Let me offer five possible contributing factors:

1.  Geography

The elite law schools all draw their student bodies nationally, but there may be overall bias (in the statistical sense) toward students from the Northeast, particularly at the two most important “feeder” schools, Harvard and Yale.  Evangelicals are 26% of the nation, but just 10% of the Northeast.  The data are here.  Further, to the extent that the elite schools draw disproportionately not just from particular states or regions but from particular sub-regions (i.e., Manhattan, large metropolitan areas, etc.) or undergraduate schools, the effect may be even more pronounced.

2. Socio-economic status

Evangelicals skew lower in socio-economic status compared to other major religious demographic groups.  Significant indicators in which evangelicals “underachieve” include  household income and educational degree achievement.  To the extent that elite law schools draw disproportionately from upper income and high educational achievement households, socio-economic status may be an important contributing factor to lower evangelical enrollments in elite law school.

3.      Anti-intellectualism

As Mark Noll chronicled in his wonderful book The Scandal of the Evangelical Mind, American evangelicalism has a long and unfortunate tradition of anti-intellectualism.  It would not be surprising to find that some bright evangelical college graduates decline to pursue legal educations at elite law schools because they have been weaned on a deep mistrust of Ivy League intellectualism.

4.      Anti-elitism

Closely related to the last point but a little different is the possibility that a spirit of anti-elitism keeps some evangelicals away from elite law schools.  It is a mainstay of evangelical teaching that one should avoid pursuing “worldly” status at the expense of godly virtue.  Consider a bright young evangelical college graduate who is weighing a scholarship at the local state law school against a non-scholarship admission to a top ten school.  She balances her desire for a more prestigious degree against her desire to avoid debt and stay close to friends, family, and church.  It would not be surprising to find that, compared to her peers from other traditions, she is more likely to decide that the prestige value of the degree does not merit foregoing the scholarship to the state school.

5.      Alienation from the legal profession

Finally, I wonder to what extent the phenomenon of low evangelical representation at elite law schools is just part of a wider phenomenon of evangelical alienation from the legal profession more generally.  Are eligible evangelicals disproportionately not enrolling in law schools of any variety and opting instead for other sorts of careers?  I don’t know the answer, but it would not be surprising to learn that evangelicals have disproportionately not pursued legal careers because of a variety of attitudes, perspectives, or biases.  Just to throw out a few possibilities:  “practicing law requires unethical compromises;” “law is the province of liberals;” “trial lawyers are ruining America.”

My intuition is that each of these five stories has something to do with it, although I’m unsure how much weight to put on each.  I’m also pretty sure that there’s a lot more to the story, and would welcome reader comments with other perspectives.

I’ve posted some follow-up thoughts on whether it matters that evangelicals are underrepresented here.