In the months leading up to the 2016 presidential election, Donald Trump released a list of potential nominees to the U.S. Supreme Court. It was an unusual yet savvy move, meant to convince anxious Republicans that he could be trusted to fill the seat vacated by the late conservative stalwart Antonin Scalia. It was also an overture to the GOP’s base of white evangelical Christians who were concerned about religion, abortion, and gay-marriage cases at the Court. At the time, there was uncertainty about whether white Christians would turn out for Trump: Many influential Catholics and evangelicals, such as Princeton professor Robert George, Southern Baptist leader Russell Moore, and writer David French had emerged as some of the most vocal anti-Trump conservatives. But Christian conservatives turned out for Trump in large numbers, and since his election, they have remained some of the president’s most steadfast supporters. Among the possible reasons for this support, one could argue that Christian conservatives really voted for certain types of judges and justices in the federal courts—not for the impious president.
This fall, the seemingly inevitable confirmation of Brett Kavanaugh to fill Anthony Kennedy’s seat on the Supreme Court means a number of things. It means that President Trump will have placed the same number of justices on the Court as each of his past three predecessors, with more than two years to go until he is up for reelection. It means the Court will tilt decidedly to the right for the foreseeable future. But for white evangelicals and Christian conservatives more broadly, it means that no matter how the culture continues to evolve against them in the years to come, they can expect to find refuge at the nation’s highest court. These were the terms of the deal Christian conservatives made with Donald Trump. And now, with Kavanaugh set to replace Kennedy, they are about to receive their reward.
Brett Kavanaugh was not among President Trump’s original list of possible nominees; he was added in 2017. In some ways, he seems like he was developed in a laboratory to serve on the Supreme Court. A two-time Yale graduate, he would join Clarence Thomas, Samuel Alito, and Sonia Sotomayor as graduates of Yale Law School serving on the Court. He would also be one of four justices who had previously served on the D.C. Circuit Court of Appeals, joining Thomas, Ruth Bader Ginsburg, and John Roberts. Kavanaugh is also a known commodity within the Federalist Society, the most consequential conservative legal network in the country. Kavanaugh would be the fifth member of the Court to be a Federalist Society veteran, evidence of the power of that network in conservative legal circles. Given his credentials, any Republican president would have been expected to consider Brett Kavanaugh for a spot on the Supreme Court.
Still, Kavanaugh was not necessarily Christian conservatives’ first choice to replace Anthony Kennedy. Yes, their response to Kavanaugh was overwhelmingly positive, with even “Never Trump” conservatives praising the nomination. But many Christian conservatives would have liked Trump to nominate Amy Coney Barrett, a former Notre Dame law professor and now a federal judge. Already a star in conservative legal circles, Barrett became a favorite of Christian conservatives during her confirmation hearing last summer, when Senator Dianne Feinstein critiqued the influence of Barrett’s Catholic faith on her legal reasoning, concluding, “The dogma lives loudly within you.” After Trump picked Kavanaugh, David French wrote that “for a critical part of Trump’s base, the cheers for Kavanaugh were a tad forced.” Still, if Amy Coney Barrett would have been a grand slam home run for the Christian conservatives who bet big on Donald Trump, then Brett Kavanaugh is a bases-clearing double—not as flashy, and won’t have them on their feet cheering for as long, but still puts them in great position to win.
Win at what, though? Christian conservatives may still be a potent voting bloc, but they are becoming more and more of a cultural minority. As a result, they will find themselves increasingly turning to the courts to protect long-cherished rights and to deliver on sought-after cultural goals. This new reality helps explain their bargain with Donald Trump: With Kavanaugh poised to give the Supreme Court a more pronounced rightward lean, Christian conservatives should anticipate future victories on a variety of issues.
Perhaps no issue is of greater importance to Christian conservatives than religious liberty. In my research on the Christian legal movement, I found that the movement and its interest groups pay greater attention to religious liberty than any other issue. Of course, critics suggest that this issue carries specific meaning for Christian conservatives. For example, when the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission earlier this year, Christian conservatives celebrated a big win for religious liberty, while others characterized the ruling as a license to discriminate. And despite the perceived narrowness of the Kennedy opinion, the result was still favorable for Christians who harbored disagreement with same-sex marriage. Masterpiece will not be the last word on the collision between religious liberty and LGBT rights, but it was a victory that Christian conservatives desperately needed.
Far from a perfect predictor, Kavanaugh’s record provides at least some indication of his views on religious liberty. In Priests for Life v. Department of Health and Human Services, he advocated a generous reading of both the Religious Freedom Restoration Act and the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, which exempted certain businesses from contraceptive coverage requirements under the Affordable Care Act. Kavanaugh also criticized a Washington, D.C., policy restricting the types of advertisements (including religious advertisements) in the city’s transit system. Beyond the courtroom, Kavanaugh once chaired the Federalist Society’s Religious Liberties Practice Group, and he has authored amicus curiae briefs in support of religious liberty as a private practice attorney. For Christian conservatives concerned about the future of religious liberty, Brett Kavanaugh certainly seems to check this important box.
With Kavanaugh replacing Kennedy, the “narrow” 7-2 decision in Masterpiece could be a stronger 5-4 decision in the future, with the religious liberty interests of Christian conservatives on the winning side. Indeed, future conflicts between religious liberty and LGBT rights are more likely to be decided in favor of the former. Kennedy authored Romer v Evans, Lawrence v. Texas, and Obergefell v. Hodges—all cases that expanded rights to gay Americans. He will be replaced by someone with a decidedly more conservative (and less libertarian) bent in this area of law. When these difficult issues inevitably arrive at the Supreme Court, Christian conservatives should feel confident with Kavanaugh casting a vote.
If religious liberty is at the forefront of Christian conservatives’ agenda in law and politics, then abortion is close behind. For several decades, Christian conservatives have been campaigning on their opposition to legal abortion. Republican presidents have confirmed 10 justices to the Supreme Court since Roe v. Wade was decided in 1973, compared to just four for Democrats. In that sense, it is surprising that Roe still stands today. Indeed, it was Kennedy—a Ronald Reagan nominee—who helped author Planned Parenthood v. Casey, which affirmed the central holding of Roe by confirming women do have a 14th Amendment right to abortion prior to fetal viability.
Whether Kavanaugh would vote to overturn Roe remains to be seen. Last month, he told Senator Susan Collins that he considered the decision “settled law.” But he is also on the record as praising William Rehnquist’s dissenting opinion in Roe, which advocated letting states decide for themselves whether to allow abortion. And he did dissent from the D.C. Circuit’s judgment allowing a detained, undocumented minor access to an abortion. Crucially, Christian conservatives would not necessarily need an explicit rejection of Roe in order to see their goals met. While affirming important elements of Roe, Casey also introduced the “undue burden” standard for evaluating state restrictions on abortion access. With Kavanaugh solidifying a conservative majority, more and more state restrictions on abortion could be upheld as not posing an undue burden on women. This reality could functionally overturn Roe without formally doing so. Whatever the future of abortion in the courts, one would be wise to bet on Kavanaugh joining other conservatives in their skepticism of the Roe precedent. Christian conservatives, who have long dreamed of sending Roe “to the ash heap of history,” could hardly imagine a more promising opportunity.
One of the more amusing refrains from conflicted conservatives during the Trump era has been “But Gorsuch.” That is, despite all the distractions and controversies associated with Donald Trump, at least Neil Gorsuch was confirmed to the Supreme Court instead of Merrick Garland or whomever President Hillary Clinton may have nominated. But really, replacing Antonin Scalia with Gorsuch simply maintained the Court’s ideological status quo. However, replacing Anthony Kennedy—the Court’s median justice and a wildcard on abortion and LGBT rights—with a more steadfast conservative like Brett Kavanaugh? “But Gorsuch” may be due for an update.
Inasmuch as it will tip the Supreme Court decidedly to the right, Kavanaugh’s confirmation is what many Christian conservatives were hoping for when they made their deal with Donald Trump nearly two years ago. This demographic has faced no shortage of criticism for their decision. After all, how could people of faith, after spending the last 30 years railing against the decline of morality in American society, support a person that seems to epitomize this decline? But in another 30 years, when Donald Trump is long gone and the controversy surrounding his time in office is taught in history books, Brett Kavanaugh may very well still be one of nine votes on the nation’s highest court. For Christian conservatives, with the Court on the verge of a solid conservative majority and poised to render favorable judgments on religious liberty and abortion, this deal is increasingly looking like a good one.
Daniel Bennett is an assistant professor of political science at John Brown University. He is the author of Defending Faith: The Politics of the Christian Conservative Legal Movement and a contributor to the forthcoming The Evangelical Crackup? The Future of the Evangelical-Republican Coalition.