Amy Coney Barrett’s Confirmation Would Be a Major Victory for the Christian Legal Movement

By Daniel Bennett | October 6, 2020

Nearly three years ago, Amy Coney Barrett, then a professor at Notre Dame Law School, made her first appearance before the Senate Judiciary Committee. The senators were weighing her nomination to the Court of Appeals for the Seventh Circuit, and the hearing would have typically received little attention.

Then, in a line of questioning directed toward the nominee’s views on the relationship between precedent and the legal philosophy of original meaning, Senator Dianne Feinstein, the ranking Democrat on the committee, emphasized possible conflicts between the nominee’s Catholic beliefs and established law. “I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” she said.

While Barrett was already well known in the small world of the conservative legal movement, this exchange made her a star. “The dogma lives loudly within you” became a rallying cry, especially for conservative Christians, on social media. Barrett’s defenders ranged from National Review’s Alexandra DeSanctis and Christianity Today’s Ed Stetzer to Princeton’s Christopher Eisgruber and Harvard’s Noah Feldman. Each emphasized the Constitution’s prohibition on religious tests for public office, while also arguing that religious convictions should not be maligned or demonized in the context of public service.

Barrett is now President Donald Trump’s third nominee to the Supreme Court. If confirmed, she would transform the Court’s ideological balance in a way not seen for generations. Just as importantly, though, her confirmation would give another major victory to the conservative Christians who have remained steadily behind Trump during four tumultuous years. It would be a fitting parting gift to this bloc in case of a Joe Biden victory in November, shoring up their defenses in the cultural, political, and legal battles to come.

 

FOLLOWING TRUMP’S NARROW VICTORY in 2016, conservatives may not have dreamed of the opportunity they now face so close to another election. Barrett would be Trump’s third addition to the Court, the most for a president in one term since Richard Nixon, who added four. But more importantly, Ruth Bader Ginsburg was a steady presence on the Court’s liberal wing for nearly three decades, and her death at this point means an ideological realignment. Barrett’s confirmation would shift a 5-4 conservative majority to a 6-3 conservative vice grip, assuming she is confirmed. Not since Clarence Thomas replaced Thurgood Marshall in 1991 will a justice be replaced by someone more opposite their ideology.

After Ginsburg’s death, Barrett was immediately floated as a top candidate. Social conservatives had pulled for Barrett two years earlier to be the nominee for the vacancy that ultimately went to Brett Kavanaugh. As I wrote at the time, “If Amy Coney Barrett would have been a grand slam home run for the conservative Christians 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.” In some sense, there isn’t a world in which Barrett wasn’t the nominee this time around.

Barrett would be both different from and similar to her future Supreme Court colleagues. She would be the first justice since Sandra Day O’Connor to not have attended either Harvard or Yale, and would be the first ever to have graduated from a Catholic law school (Notre Dame ’97). Barrett would be the fifth woman to serve on the Court (and the third in 11 years), but would be its most conservative woman by far. Despite Barrett’s relatively short tenure on the Seventh Circuit, she did author more than 100 opinions on a variety of issues, including gun rights and campus sexual assault. Barrett would also join Kavanaugh, Neil Gorsuch, Elena Kagan, and John Roberts as justices who clerked for a justice, as she clerked for Antonin Scalia during the Court’s 1998 term.

Importantly, and legal acumen aside, Barrett would be unlikely to disrupt the collegial environment of the Court. Just as President Obama famously valued Kagan’s interpersonal skills as much as her intellect when he selected her for the Court, Barrett would, by most measures, be an outstanding colleague. Following her nomination to the Seventh Circuit in 2017, all 34 clerks from her 1998 cohort signed a letter supporting her nomination, calling her “a woman of remarkable character and intellect.” Following her recent nomination, one of these clerks wrote that though he disagreed with much of her legal philosophy, Barrett is “a sincere, lovely person,” continuing, “She will be an ideal colleague.”

Despite a resume that is impressive in both traditional and nontraditional ways, Barrett has received her share of scrutiny, both as a nominee to the Seventh Circuit and as a nominee today. And while some of this scrutiny has predictably focused on her conservative legal views and originalist reading of the Constitution, it is her religious beliefs that have drawn the most attention. In the same hearing where Dianne Feinstein questioned the role of Barrett’s “dogma” in her ability to be a judge, Senator Dick Durbin asked with concern if she was an “orthodox Catholic,” pointing to Barrett’s use of the term in an article she had co-authored 20 years earlier.

More recently, others have defended raising concerns about the influence of Barrett’s religious beliefs on her ability to serve as a Supreme Court justice. Villanova’s Massimo Faggioli argued in Politico that her religious convictions should be fair game for the Senate to examine—specifically, her involvement with the charismatic group People of Praise, which was initially erroneously reported as being an inspiration for Margaret Atwood’s The Handmaid’s Tale. “Barrett’s nomination would raise an important new problem,” Faggioli writes. “Is there a tension between forthrightly serving as one of the final interpreters of the Constitution and swearing an oath to an organization that lacks transparency and visible structures of authority?” Another article in Politico raised questions about whether Barrett was a “Manchurian candidate,” pointing to her involvement with conservative professors and the Federalist Society during her time as a law student.

There has been no shortage of forceful responses to these critiques. For Newsweek, John Inazu of the Washington University School of Law and the John C. Danforth Center on Religion and Politics (which publishes this journal) said that just because someone’s religious practices seem “unfamiliar, weird and even threatening to outsiders,” these same practices are normal, harmless, and even fruitful for religious growth when viewed through the appropriate lens. And in his newsletter for The Dispatch, David French countered, “Tight-knit Christian communities aren’t ‘weird’ or ‘strange’ …. Because people are highly imperfect, there is no question that some communities and some fellowships can be dysfunctional, but the mere existence of the fellowship is not suspicious.”

Additionally, Southeastern Baptist Theological Seminary’s Bruce Ashford asked for First Things: “The fact that Barrett is part of an association of Christians, People of Praise, who wish to live out their faith intentionally, is not disqualifying. How does this make her any different from the dozens of other Supreme Court justices—conservative and liberal—who have lived out their faith intentionally?” While it is reasonable for Americans to wonder how any nominee’s convictions would shape their identity and responsibilities as a jurist, treating a nominee’s religious beliefs as especially troubling or cause for special concern is not.

For now, Senate Democrats appear hesitant to draw from the playbook of their colleagues during Barrett’s first confirmation battle. In responding to Barrett’s Supreme Court nomination, Democrats have tended to aim their fire on what Barrett’s confirmation would mean for the future of the Affordable Care Act, abortion, and even next month’s presidential election. Given the bipartisan rejection of Democrats’ earlier focus on Barrett’s religion, it would be odd for them to go down that road again.

 

PERHAPS NO COMMUNITY is more pleased with Barrett’s nomination than the small but influential Christian legal movement. This movement has had its share of successes before the Supreme Court in recent years—the legal group Alliance Defending Freedom, for example, has a nearly perfect record before the Court since 2014. But Barrett’s confirmation would be the movement’s biggest victory yet: In addition to her sympathy for socially conservative legal arguments, Barrett has in the past lectured at Alliance Defending Freedom’s Blackstone Legal Fellowship, which trains and mentors promising law students. The Christian legal movement considers her to be one of their own, and her confirmation would mean that they will have someone on the foremost stage of America’s legal and cultural battles for decades. While the other conservatives on the Court are usually allies of this movement, Barrett would be an actual friend.

Just as the Christian legal movement is cheering this nomination, so too are conservative Christians in general. This community had multiple motivations in voting for Donald Trump in 2016, but among them was the potential for judges that would rule favorably on issues important to them, such as religious freedom and abortion. If replacing Scalia with Gorsuch was good and replacing Kennedy with Kavanaugh was great, then replacing Ginsburg with Barrett would be extraordinary. Regardless of the outcome of next month’s presidential election, three reliably conservative justices would have been added to the Supreme Court in four years, something not seen in nearly 50 years. Such a prospect would have thrilled any conservative Christian voter four years ago.

The confirmation hearing for Amy Coney Barrett will likely lack the drama and explosiveness of the Kavanaugh hearing. Senate Republicans have set a goal of confirming Barrett prior to the election, a goal that has not changed despite a handful of Republican senators recently testing positive for coronavirus. And despite a cacophony of Democratic complaints about this process compared to the GOP’s handling of President Obama’s nominee in 2016, it appears that Republicans have the votes to do so. It remains to be seen whether Democrats will one day push through reforms to the judiciary (such as increasing the number of Supreme Court justices to achieve ideological balance) in response to how this process has unfolded, but if the votes are there, the immediate allure of confirming Barrett will be too great for Republicans to ignore.

A successful Barrett confirmation would be an exclamation point on the Trump administration’s irrefutable success in shaping the federal courts. Under Trump, the Senate has confirmed almost 200 federal judges and more than a quarter of appeals courts judges, including Barrett. Adding her to the Supreme Court would be icing on the cake for the conservative Christians who have held their noses at the repugnant aspects of the Trump administration. Indeed, for this group, it may very well have made this chaotic administration worth it after all.

Daniel Bennett is an associate professor of political science at John Brown University, where he is also assistant director at the Center for Faith and Flourishing. He is the author of Defending Faith: The Politics of the Christian Conservative Legal Movement.