July 6, 2018

Top Potential Supreme Court Nominees on Religious Freedom

With Justice Anthony Kennedy announcing his retirement, President Trump will already get a second Supreme Court nomination and have the chance to replace the court’s lone swing vote with a more conservative judge. As many on the left have noted, the salient impact of a conservative majority would be the court’s ruling on cases challenging the 1973 decision in Roe v. Wade, as well as other issues of religious freedom and first amendment rights. If the Roe v. Wade decision is overturned, dozens of states will likely outlaw killing unborn children.

Liberal pundits reacted to the news with calls to uproot the entire political system, hysterical rage, and flat out wailing. Conservatives are cautiously watching to see if the president will nominate another reliable judge in the vein of Scalia, Thomas, and now Gorsuch to uphold justice and preserve religious freedom. 

President Trump said on Friday that he would announce his nominee on July 9 after conducting a series of interviews with the leading candidates. The administration already stated that they would pick from the list of 25 candidates released last year and modified from the list originally compiled with the aid of the conservative Heritage Foundation during the 2016 campaign. There has been a great deal of speculation about who Trump will settle on but five candidates seem to generally be recognized as the front-runners

For IRD’s purposes, I wanted to look at the five Supreme Court nominees and their leanings on the preservation of religious liberty and the sanctity of unborn human life. Below are my findings:


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Amy Barrett, 46 years old, 7th Circuit Judge

Barrett has emerged as the popular favorite among conservatives because of her strong Catholic faith and record of originalism and textualism. She was confirmed last year to the US Court of Appeals on a narrow partisan vote. Barrett graduated summa cum laude from Notre Dame law school and taught as a professor there before becoming a judge. Personally, she is a devout Catholic and a mother of seven.

Barrett gained national attention last year during her confirmation hearing for the 7th Circuit when Senator Dianne Feinstein (D-CA) essentially accused her of being too Catholic. Feinstein claimed, “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you.” As a textualist who believes in the supremacy of the Constitution in the law, Barrett responded, “Any conviction, religious or otherwise, should never surpass the law.” This exchange led to mugs and tshirts in support of Barrett.

Barrett has been opposed by pro-abortion groups such as NARAL, People for the American Way, and the Alliance for Justice, the latter of which published a pamphlet smearing Judge Barrett that was the basis for Senator Feinstein’s attacks. It relies on a 1998 article Barrett co-authored analyzing whether a Catholic judge must recuse himself from a case involving the death penalty because of his religious beliefs. However, in the actual article, Barrett says precisely the opposite of what the AFJ report accuses her of. She concludes the paper by writing: 

Judges cannot-nor should they try to-align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect. 

Judge Barrett has written extensively about originalism and textualism, and in her writings she heavily cites Justice Scalia for whom she clerked after law school. She is also a member of the conservative Federalist Society.

While her time as a judge has been too short to know exactly how she would rule on important cases, she has voiced her support for religious freedom in the past. In 2012, she signed a petition criticizing the Obama administration’s policy of mandating that religious employers must pay for abortion-causing drugs and services. In 2015, she signed a letter reaffirming the Catholic church’s teachings including “the dignity of the human person and the value of human life from conception to natural death.” 

Barrett lacks the established judicial track record that normally indicate how justices will rule, but she makes up for that with a large body of scholarly work that demonstrates her deep originalist philosophy. Conservatives would be happy to have another justice in the mold of Scalia, particularly one who is such a strong Christian. At 46 years of age she is also the youngest nominee on this list and could be on the court for four decades. The main difficulty would be in getting her confirmation through the Senate, although since she was confirmed less than a year ago, 6 senators would have to justify their sudden change of heart.

Brett Kavanaugh, 53 years old, DC Court of Appeals

Kavanaugh is one of the most polarizing potential nominees because of his involvement in numerous political battles stretching back to the Clinton administration. He attended Yale for both undergrad and law school which could make him more attractive for Trump who has expressed a desire for a candidate who is an alumnus of either Harvard or Yale. Kavanaugh clerked for Justice Kennedy before going on to work with the Starr investigation that recommended the impeachment of President Clinton. Kavanaugh has been described as a “protege of Kenneth Starr” and wrote much of the Starr Report himself. President Bush appointed him to the Appeals Court in 2006. After over a decade of decisions, Kavanaugh is now viewed as one of the most likely choices to replace Kennedy.

Interesting enough, it was Kavanaugh who upheld Obamacare in both Seven Sky v. Holder and Sissel v. HHS. Kavanaugh referred to the penalties for failing to purchase health insurance as a tax, and this line of reasoning was later used by Justice Roberts in his critical concurrence that upheld Obamacare.

In a complex decision, Kavanaugh sided against the government in Priests for Life v. HHS, an Obamacare contraception case about whether the government can compel religious organizations to provide birth control. However, his logic in the case was troubling. In his dissent, he stated “Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations” but claimed that they were too restrictive in their mandate. This ruling is a red flag for those who would have preferred a wider ruling on the constitutionality of the mandate.

The most direct abortion case Kavanaugh has ruled on is Garza v. Hargan. When the court decided that an illegal alien had the right to an abortion Kavanaugh wrote in his dissent that the decision “is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S.” He argued that requiring the woman to get a sponsor to advise her first was not an “undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.”  This hints at a willingness to place limits on or even overturn Roe v. Wade but in the Priests for Life case he stated, “It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can.”

It is not clear how Kavanaugh would rule on a direct challenge to Roe v. Wade. While most of his decisions are conservative-leaning, he has been more moderate on several high-profile cases. He also does not have the advantage of being easily confirmable as his partisan background would make it unlikely that any Democrats would support him. 

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Raymond Kethledge, 51 years old, 6th Circuit

Judge Kethledge is another former Kennedy clerk with a track record of conservative rulings and a solidly originalist judicial philosophy.  Kethledge went to the University of Michigan Law School where he graduated second in his class. Kethledge was appointed to the 6th Circuit in 2008 by President Bush after Democrats had delayed his confirmation for over two years. Kethledge is known for being a perfectionist and he teaches a class at Michigan Law School on legal writing. Like other nominees, he has ties to the Federalist Society and has spoken at events hosted by them, often about his book “Lead Yourself First”.

During his confirmation hearing in 2008, Kethledge said “I would make sure that the values that I would be enforcing if I were a judge are not just my values, that I am not striking something down simply because I don’t like it. That is a countermajoritarian aspect of our system of Government. I would start with the text.”  In a more recent speech, he discussed how tempting it is for judges to throw up their hands when they find a statute to be vague or ambiguous and exert their own preferences on the law. He argued, “What is necessary for textualism to work is simply that the judge construe the text in a principled way. . . . For, in my experience at least, if one works hard enough, all the other interpretations are eventually revealed as imposters.” As for originalism, Kethledge stated “there is a straight line from the bicameralism and presentment requirements of Article I; to a statutory text that has met those requirements; to the meaning that the citizens bound by that text would ascribe to it, which is to say its public meaning; and to what is then the law, which as judges we are bound to apply.”

Citizens may remember Kethledge from his ruling on the IRS scandal during the Obama Administration. In United States v. Norcal Tea Party Patriots, Kethledge blasted the IRS for discriminating against conservatives in their filings and ordered them to turn over their information. In a 2013 case about whether Michigan unions could collect their dues from employees’ paychecks Kethledge upheld a law protecting workers from the unions. Kethledge was in the majority with Judge Thapar on the Town of Greece v. Galloway decision that ruled that government meetings may be opened with prayer. Almost 120 of the cases that have come before Kethledge have been on immigration and in 97 percent of them, he has sided with the Board of Immigration Appeals.

Kethledge has not ruled on any cases directly relating to abortion, but the most direct evidence of his stance is the time he spent as a judiciary counsel for Senator Spencer Abraham in the late 90’s when Abraham sponsored a bill pushing for federal limitations on abortion. However, Kethledge is a strong textualist and it would be reasonable to assume that he would be opposed to the judicial legislation that led to the Roe v. Wade decision. 

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Amul Thapar, 49 years old, 6th Circuit

Thapar is a good-humored judge who has been described as “very Scalia-like and Thomas-like.” He was one of the final four candidates being considered last year to succeed Scalia before ultimately losing out to Gorsuch. Thapar graduated from the School of Law at Berkeley before working his way up to be District Attorney in Kentucky. Thapar was unanimously confirmed to be a District Judge in 2007. In 2017, Thapar was nominated to the 6th Circuit, becoming Trump’s first lower court nominee. He breezed through a quick confirmation hearing before being confirmed along strictly partisan lines. 

Thapar has taught at the University of Cincinnati Law School and recently taught a class on Justice Scalia at the University of Virginia.

Because Thapar has only been on the court for one year, his rulings at the appellate level are sparse, but he earned praise from conservatives for his ruling that government meetings can be opened with prayer in Town of Greece v. Galloway. In a 9-6 ruling, the majority rejected claims that statements such as “all rise and assume a reverent position” constituted religious coercion and held that:

Put simply, we find it insignificant that the prayer-givers in this case are publicly-elected officials. In our view and consistent with our Nation’s historical tradition, prayers by agents are not constitutionally different from prayers offered by principals.

Opponents have criticized him for his ruling on campaign finance reform in Winter v. Wolnitzek where he ruled that political donations are covered as speech under the First Amendment. In the decision, he stated:

[T]here is simply no difference between “saying” that one supports an organization by using words and “saying” that one supports an organization by donating money. Put more plainly, if a candidate can speak the words “I support the Democratic Party,” then he must likewise be allowed to put his money where his mouth is.

A study was released earlier this year that measured the “Scalia-ness” of potential nominees on a two-variable system focusing primarily on Originalism and Textualism. Thapar ranked 19 out of 20 candidates ahead of only Judge Don Willett of the 5th Circuit. Thapar was ranked so low because he has never cited Scalia for Textualist purposes in a case. For reference, Gorsuch ranked third behind Justice Lee of the Utah Supreme Court, and another finalist for Scalia’s spot, Judge Pryor of the 11th Circuit. Other important candidates followed with Hardiman at 5th, Kavanaugh at 6th, and Kethledge at 14th. Barrett was unranked because she was not mentioned as a potential nominee until later.  

Thapar outlined his judicial philosophy in a paper in the Michigan Law Review criticizing the judicial activism of former 7th Circuit Judge Richard Posner. Thapar rejects Posner’s judicial consequentialism stating, “We, on the other hand, see the human nature of the federal courts as a reason to strive ever harder for the constitutional ideal of impartial interpretation . . . The whole point is to minimize the role of the particular judge and maximize the rule of law.” He cites Justice Scalia almost constantly in this ringing endorsement of textualism.

Thapar, like other potential nominees, lacks the extensive experience at the circuit court level that is normally expected of Supreme Court justices and has not ruled on cases relating to important issues of religious freedom or abortion or compelled speech. However, Thapar would likely be a strong textualist and it would be difficult for Senators Collins or Murkowski to find a reason not to support him again after confirming him last year.

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Thomas Hardiman, 52 years old, 3rd Circuit Judge

Hardiman was the runner-up to Gorsuch for replacing Scalia a year ago. He is a Georgetown Law School graduate and a well established judge with a long record of rulings on a wide variety of issues. He is known for being a moderate willing to work with both Republicans and Democrats, and was confirmed to the 3rd Circuit in 2007 by a unanimous vote in the Senate. His colleagues say he falls ideologically somewhere between the more moderate Alito and Roberts although he has given speeches for the conservative Federalist Society.

Hardiman has several prominent rulings on religious freedom issues. In one case, he joined the majority deciding against a school district that barred a child from distributing invitations at school to a Christmas party at her church. Another time he dissented from a decision against a child who was barred from reading the Bible during his kindergarten show-and-tell. In his dissent Hardiman stated:

It does not follow, however, that the state may regulate one’s viewpoint merely because speech occurs in a schoolhouse — especially when the facts of the case demonstrate that the speech is personal to the student and/or his parent rather than the school’s speech.

In USA v. Marcavage, Hardiman overturned a conviction of an anti-abortion protester arrested for standing outside the Liberty Bell. He ruled that the sidewalk where Marcavage was holding his sign was a public forum and he was within his rights to stand there. Hardiman has also adjudicated on lawsuits from inmates claiming that their ability to exercise their religion had been restricted by prison officials. In those cases, he generally decided in favor of the prison officials. Recently he ruled in favor of the Little Sisters of the Poor charity in their legal battle against the contraception mandate of Obamacare.

Going back to his days as a private attorney, in 2000 Hardiman defended a court house’s 10 Commandments plaque in Modrovich v. Allegheny County. During his confirmation hearings in 2003, Senator Richard Durbin asked Hardiman about the Modrovich case saying “Do you believe that every American — Christian or non-Christian — has a right to have the tenets of his & religious beliefs displayed in government buildings?” Hardiman avoided answering the question.

Hardiman has never directly weighed in on abortion although according to NARAL, he once made a donation to the pro-life National Right to Life Committee.

In other cases, Hardiman has been more moderate. In 2011, he ruled against a fire department for their residency policy saying that an absence of minority representation was evidence of discrimination. While he has ruled for gun rights in cases like Drake v. Filko, in other Binderup v. Bureau of ATF he said that applications of the 2nd amendment require “an inquiry into ‘text and history’” rather than a broad constitutional protection. His record on the First Amendment is also mixed with several decisions restricting the limits of free speech when such speech is deemed offensive. On another case Hardiman ruled in favor of a homosexual man who claimed religious harassment for not conforming to the company’s implied gender expectations.  If the Supreme Court gets more cases similar to the Masterpiece Cakeshop case, it is not clear if Hardiman would rule that the first amendment does not protect religious people from offending homosexuals.

Hardiman is an established moderate voice who has a reliable record on religious freedom cases but does not seem to be guided by originalism as much as other candidates. He is likely the safest pick on this list for confirmation but his mixed record is a red flag for conservatives who would prefer a candidate who can be relied on to rule in favor of religious freedom and against abortion.

David Jensen is a Summer intern for the Institute on Religion and Democracy. He is from Newport Beach, California and is a rising senior at the College of William and Mary where he is majoring in History and Government.

One Response to Top Potential Supreme Court Nominees on Religious Freedom

  1. Religious freedom!?!

    You mean the First Amendment’s violation of the First Commandment? The last thing we need is another judge promoting religious freedom.

    Like a moth to a flame, Christians are intent on employing the genesis of their problems as the solution. In this instance, the First Commandment violating First Amendment.

    Religious Freedom and Christian Liberty are not the same thing. They are, in fact, hostile to each other. The former is born of the First Amendment. The latter is born of the First Commandment. In 1789, the First Commandment and Christian Liberty were formally sacrificed on the altar of the First Amendment and Religious Freedom. Christian liberty is being attacked as a consequence of the First Amendment’s provision for an alleged religious freedom for all.

    It’s one thing to allow for individual freedom of conscience and private choice of gods, something impossible to legislate for or against. It’s another matter altogether for government to enable any and all religions to proliferate through the land and evangelize our posterity to false gods. This is what the First Amendment legitimizes. It is an unequivocal violation of the First Commandment and the polar opposite of the following First Commandment statute:

    ‘[Y]e shall destroy their altars, break their images, and cut down their groves. For thou shall worship no other god: for Yahweh, whose name is Jealous, is a jealous God: Lest thou … go a whoring after their gods….’ (Exodus 34:13-15)….”

    It’s the First Amendment that the sodomites, lesbians, and atheists hang their hats on and that they’ve been able to utilize for their cause. It’s likewise the First Amendment that so many Christians hang their hat on as if there’s something intrinsically Christian about it when, in fact, it is entirely antithetical to the Bible. It’s thus suicide for Christians to appeal to the First Amendment in any fashion whatsoever.

    For more, see online Chapter 11 “Amendment 1: Government-Sanctioned Polytheism” of “Bible Law vs. the United States Constitution: The Christian Perspective” at http://www.bibleversusconstitution.org/BlvcOnline/biblelaw-constitutionalism-pt11.html.

    Then find out how much you REALLY know about the Constitution as compared to the Bible. Take our 10-question Constitution Survey in the right-hand sidebar and receive a complimentary copy of a book that EXAMINES the Constitution by the Bible.

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