The True Victors of Trump’s Supreme Court Nomination
Amy Coney Barrett’s ascension is a triumph for the conservative legal movement.
Updated on September 26, 2020 at 5:21 a.m. ET.
When President Donald Trump announced today that Amy Coney Barrett is his nominee for the Supreme Court, he was effectively declaring victory. In 2016, Trump offered a horse trade to American conservatives: In exchange for their votes, he promised to appoint judges who would champion their interests. This nomination is yet another chance for Trump to remind his supporters that their bet paid off, conveniently timed just a few weeks before Election Day.
While Trump may see this nomination as a boon to his reelection campaign, the true victors are the leaders of the conservative legal movement, who built the sophisticated machine in Washington that made this moment possible. With most of America’s institutions, from Congress to the executive branch, locked into a state of dysfunction and partisan bitterness, the Court has become the ultimate venue for the parties to fight out controversies and entrench their power. Barrett’s nomination is the culmination of a decades-long strategy to advance judges steeped in a conservative judicial philosophy that tends to favor limited government regulation of businesses, produce skepticism of abortion rights, and promote an expansive view of religious liberty. If Barrett is confirmed, a new 6-to-3 conservative supermajority will be poised to determine Americans’ rights for a generation.
The strategy of the conservative legal movement is basically a long game of cultivating personnel. “You know the saying that Hillary Clinton had in her book, ‘It takes a village to [raise a child]’? The Republican version of that is ‘It takes 30 years to grow a Supreme Court justice,’” Jack Balkin, a law professor at Yale, told me. Starting in the 1980s, a group of conservative intellectuals, including the future Supreme Court Justice Antonin Scalia, began developing networks to train and connect young law students inclined toward a conservative judicial philosophy. This elite class of lawyers then fanned out across firms, think tanks, academia, and government, creating a “conveyor belt of bright, qualified, conservative judges,” Balkin said.
Amy Coney Barrett is a luminary of this movement. Unlike the other justices currently on the Supreme Court, she never attended an Ivy League school, but she scored two of the top clerkships available to promising young conservatives, working for Judge Laurence H. Silberman on the D.C. Circuit Court of Appeals and Scalia on the Supreme Court, where she was one of the justice’s favorite clerks. Scalia’s methods of judicial interpretation were a huge intellectual influence on Barrett. “She’s committed to tethering herself to the text, history, and tradition of the Constitution and [trying] to discern its original understanding,” O. Carter Snead, a professor of law and political science at Notre Dame and Barrett’s former colleague, told me.
One of the watchwords of the conservative legal movement is judicial restraint—an allergy to what adherents describe as judicial activism that leads judges beyond the text of a statute or the Constitution to a preferred policy outcome. “Judges are not supposed to be politicians” or impose “their preferred ideology or their preferred religious preferences,” Snead said. Barrett appears to share this view. “The public should be absolutely concerned about whether a nominee for judicial office will be willing and able to set aside personal preferences,” she said during an interview with a former student of hers at Hillsdale College last year. “That’s not a challenge just for religious people. That’s a challenge for everyone.”
Barrett’s ability to set aside her religious views as a Catholic has been a matter of intense debate since she was nominated to the Seventh Circuit Court of Appeals in 2017. “The dogma lives loudly within you, and that’s of concern,” Democratic Senator Dianne Feinstein of California said during Barrett’s confirmation hearing, questioning whether she would uphold the precedent of abortion rights set in Roe v. Wade. An ugly war has already begun over Barrett’s participation in a charismatic community in South Bend, Indiana, and whether that should be a factor in her Supreme Court confirmation hearings.
The irony of this debate is that it obscures the philosophical commitments that explicitly shape who Barrett would be as a justice. Article VI of the Constitution prohibits any religious test from being imposed on candidates for office. We cannot know how Barrett’s Catholicism shapes her views, and moreover, it is likely unconstitutional for senators to consider that in evaluating her fitness for the job. But it is clear that her involvement in the conservative legal movement has definitively shaped her approach to the law.
Abortion would be by far the most controversial issue up for consideration by a Supreme Court with a conservative supermajority. A number of cases already in the pipeline to the high court could lead to significant restrictions on abortion rights around the country. But conservatives also see opportunities in other areas of the law: expanding the boundaries of religious freedom, for example, as well as scaling back bureaucrats’ ability to determine government policies. Specific laws, most notably the Affordable Care Act, are at direct risk of being struck down; a challenge to the health-care law is scheduled for oral arguments just a few days after the election.
In recent years, conservative justices have joined the liberal wing of the Court for decisions on highly contested issues, from legalizing same-sex marriage in Obergefell v. Hodges to protecting the status of young undocumented immigrants in Department of Homeland Security v. Regents of the University of California. The biggest advantage of having six Republican-appointed justices on the Court is that conservatives can “seek review in the Supreme Court, and not have to worry about 5–4 decisions,” C. Boyden Gray, who served as White House counsel to George H. W. Bush, told me. The new conservative supermajority “promises a revolution in doctrine,” Balkin said. “But that’s too strong a word, because, in fact, doctrine has been changing markedly over the course of the last 30 years.”
For all their claims of neutrality, Supreme Court justices are political creatures who tend to follow their ideological leanings when big decisions are at stake. Over time, the Court has gradually become more favorable to conservative judicial philosophies. Even Justice Elena Kagan, who was appointed by Barack Obama, has said so: “We’re all textualists now,” she declared. Barrett’s nomination, then, is not the beginning of a new era on the Supreme Court. It is the ratification of a long-standing trend.
Thirty years ago, the movement could not claim this kind of dominance. Democrats tanked Robert Bork, one of the early advisers to Yale’s chapter of the Federalist Society, at his 1987 Supreme Court confirmation hearings. David Souter, who joined the Court in 1990, was later reviled by conservatives for steadily becoming more liberal over his tenure. Now every conservative who makes it to the federal bench is a known entity. “For all the candidates since then, they’ve all had records where you can get a pretty good picture of how they would deal with tough, national issues,” Gray, who worked on Souter’s appointment, told me.
By the time Trump ran for president in 2016, the conservative legal movement was firmly established in Washington. Trump presented an opportunity. In exchange for leaders in the movement doing the hard work of compiling and vetting potential judicial nominees, the president would hold open the door for a parade of judges committed to conservative judicial philosophy. Many voters believed this deal made Trump worthy of their support: In exit polls, a quarter of those who backed Trump said the Supreme Court was their chief motivation. Trump has secured more than 200 appointments to federal courts and circuit courts of appeal, along with two Supreme Court justices so far. He kept his end of the bargain.
Trump is clearly hoping another Supreme Court seat will give him a much-needed popularity boost as he continues to lag behind Joe Biden in polls. (He has also said he expects that the Court will determine the outcome of November’s election.) It’s not clear that the coming confirmation battle will ultimately push Trump over the edge with voters, however. Democrats, who can do little to block Barrett, are issuing dire warnings about the future of the ACA in swing states, where they believe they have the advantage. The top leaders of the conservative legal movement are all in to help the president get reelected. But they may have already gotten what they wanted out of Trump. Four more years of this president would seem short compared with the lifetime appointment of 48-year-old Amy Coney Barrett. No matter what happens in November, the conservative legal movement won.