The ``Protestant Empire`` theory of the Justices' behavior

[Mark Graber]

There can be at least two distinct "Protestant empire" theories of judicial behavior.  First, we may imagine a justice thinking, "what decision is best to maintain the hegemony of protestantism in the United States."  My sense of the universe is that justices do not think like this.  Second, justices of all faiths may think in terms of catagories that resonate more with most Protestant sects that other sects for the simple reason that those of the legal categories out there.  They are not trying to maintain the hegemony of Protestantism, but being in a country where many practices have Protestant origins, certain ways of thinking seem natural.  The test of this theory is not to compare Thomas and Ginsburg, but American judicial practice to judicial practice in other countries with claims to protect religious freedom but where the dominant religion is not Protestant.

Mark A. Graber
mgraber at gvpt.umd.edu