This week, the Senate Judiciary Committee has been hearing testimony from Supreme Court nominee Amy Coney Barrett, who is a graduate of Notre Dame Law School, deeply rooted in her Catholic community and backed by the Federalist Society. To better understand her nomination, I talked with the authors of the new book “Separate But Faithful: The Christian Right’s Radical Struggle to Transform Law and Legal Culture,” published by Oxford University Press. TMC editor Amanda Hollis-Brusky is an associate professor of politics at Pomona College, and Joshua C. Wilson is a professor of political science at the University of Denver.
Henry Farrell: When and why did that movement decide to focus on transforming the courts?
Joshua Wilson: The Christian right got a political education in the 1980s and 1990s. During the 1980 presidential election, evangelical leader Jerry Falwell organized the so-called Moral Majority — gathering the Christian right into a political movement. The name tells you that this movement begins with the assumption that it represents most Americans. That matters, because majority movements can exercise power through the political branches of government. The movement was elated when it helped elect Ronald Reagan to the presidency. But that soon became disappointment, as it didn’t help achieve policy goals like overturning Roe v. Wade or getting prayer reinstated in public schools.
What’s more, the movement was soon enduring bad press, for several reasons. Aggressive antiabortion organizations like Operation Rescue gave a violent, confrontational face to the movement as they staged massive blockades of abortion clinics. Prominent evangelical leaders were exposed in one scandal after another. The Moral Majority collapsed in 1989 after Falwell had stepped down amid scandal and after local chapters launched campaigns that embarrassed the organization.
The Christian right soon realized it was a minority movement — both within the Republican Party and within the U.S. population — and adjusted accordingly. Most important, its leaders recognized that to defend policy victories and advance their policy interests, they had to turn to the branch of government most insulated from majoritarian politics: the courts.
HF: When we think about the politics of the law, we focus on judges, and especially Supreme Court judges. What other aspects of legal politics has the Christian right worked to build, and how are they likely to shape the cases that judges will consider?
Amanda Hollis-Brusky: Judges are important. The cases they hear can determine who can get married, who can stay in the United States, who gets to vote, and who gets access to welfare, health care, clean water and air. But as we argue in the book, judges don’t act alone. For judges to effect change — especially radical, transformative change — they must hear the right kinds of cases that present the right kind of legal questions. That’s where movement lawyers come in. How those lawyers are trained and credentialed, how they ground and frame their legal arguments, and the kinds of networks they rely on influences the longer-term development of the law.
In that, law schools matter — because they help seed long-term changes in the law. This is exactly what Christian right patrons recognized when they decided to build new law schools. They hoped that these “Christian worldview” law schools would serve as engines of transformative change, producing a new kind of lawyer who would help return law to its biblical foundations by publishing scholarship grown from this biblical worldview, bringing cases to help restore God in the public square and prayer in schools, and bringing the case that would finally overturn Roe v. Wade and end women’s right to abortions.
If the Senate confirms Barrett, Americans could lose faith in the Supreme Court.
HF: More overtly Christian right law schools have taken a different approach than Notre Dame, looking at the traditional legal academy and trying to build an entire parallel structure. Why, and did they succeed?
AHB: It was about control. Leading political patrons of the Christian right — Pat Robertson, Jerry Falwell and Tom Monaghan (a conservative Catholic patron who made his fortune founding Domino’s Pizza) — recognized that investing in legal education would help achieve their political ends. In Falwell’s words, they sought to invest in “a generation of Christian attorneys” who could fight the culture wars in court. Each of them believed that established law schools were too secular to promote their radical vision of law as grounded in biblical principles and dedicated to transforming the law and legal culture through a “Christian worldview.” Even Notre Dame, they claimed, had drifted from its Christian mission. They therefore each built their own law schools — Regent Law School, Liberty Law School and Ave Maria School of Law, respectively.
Have they succeeded? Not entirely. Among the Christian right, they’re considered beacons of resistance. But they are largely ignored within the upper echelons of the legal profession, an elite world obsessed with credentials and prestige.
For evidence of this, look no further than Amy Coney Barrett, who comes equipped with elite Notre Dame credentials. That helped propel her to the Supreme Court, as might not have been possible had she come from one of these newer schools.
Yes, Senate Republicans could still confirm Barrett before the election.
HF: Barrett was a law professor at Notre Dame. Your book quotes a faculty member as saying that Notre Dame Law School is “kind of like the [conservative] Federalist Society distilled.” How so?
JW: Notre Dame Law School undertook a significant reconstruction as the 21st century began. It both literally rebuilt many facilities and also built a reputation within the legal community as an elite conservative hub. Once leadership had recruited enough conservative legal scholars, Barrett among them, that attracted other conservative faculty and students. In the words of one person we spoke with, “it becomes self-replicating.”
This conservative reputation has allowed Notre Dame to become a recruiting ground for judges and justices looking for clerks from the ranks of elite conservative law students. As we can see now, it’s also becoming a source of conservative judicial appointments.
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