Why Aren’t Any Evangelicals on the Supreme Court?

President Donald Trump’s repeated pursuit of conservative Christians for Supreme Court seats follows a simple political logic: White evangelical voters have been Trump’s most loyal supporters, and they care deeply about appointing conservative judges who will overturn Roe v. Wade and ban abortion. Hence Trump’s appointment of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and the nomination of Amy Coney Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg.

What might seem remarkable about these picks, however, is that while white evangelicals have been Trump’s most loyal supporters, and routinely cite the selection of judges who will overturn Roe as their top priority, when it comes time to make court appointments, it’s conservative Catholics, not evangelicals, who end up getting the nod.

In fact, of the current Supreme Court’s conservative majority, it is only Justice Gorsuch whose Catholic identity is somewhat unclear—he was raised Catholic but has attended Episcopalian churches since marrying his wife, a Brit, and those close to him consider his Catholic and Episcopalian identities as fluid.

It’s fair to ask why the huge evangelical influence on politics hasn't resulted in any evangelical justices on the nation's highest court. With the exception of Harriet Miers, whose nomination to the Supreme Court was withdrawn by President George W. Bush less than a month after its announcement, the recent history of judicial nominees is devoid of evangelical Christians. In fact, while Miers' nomination was scuttled for questions about her qualifications, her religious affiliation itself became controversial when the administration attempted to use it to respond to conservatives’ concerns over her record.

Outside of the ill-fated Miers nomination, there are two reasons for the evangelical absence: Supply and demand. The pool of properly credentialed conservative evangelical lawyers and judges is far shallower than the deep conservative Catholic reservoir. As evangelical Americans have deliberately separated themselves from mainstream culture, setting up alternative schools and colleges, they’ve largely removed themselves from the elite institutions that produce America's top-level judges and lawyers. There are a handful of evangelical law schools, but no equivalent of Harvard or Yale—or of the elite Catholic institutions like Notre Dame or Georgetown.

At the same time, a powerful strain of socially conservative jurisprudence has emerged, much of it driven by the creation and rise of the Federalist Society, producing lawyers and judges who hold conservative beliefs in addition to graduating from and teaching at the country’s top law schools and serving in its most elite firms.

This roughly coincided with the ascendance of anti-abortion white evangelicals as perhaps the most dominant force in Republican electoral politics. White evangelicals only became an identifiable constituency in the GOP in the turn from the 1970s to the '80s. While they saw themselves as essential to Ronald Reagan’s presidency, they initially overestimated their own influence. The scholarly and activist consensus is that although Reagan openly courted conservative Christians in his 1980 run for the presidency, as Kimberly Conger writes, “his commitment to the causes and issues of the Christian Right was little more than lip service.” Reagan did not use his political influence to directly pursue culture war issues, and with the exception of Antonin Scalia, his Supreme Court confirmations were not committed to social conservative causes. In fact, Justices Sandra Day O’Connor and Anthony Kennedy, both Reagan appointees, are credited with helping to save Roe.

Evangelical political status dramatically changed, however, over the course of the next decade. Political parties need volunteers and voters, and white evangelicals reliably provided both. Starting in the 1990s, white evangelicals dominated leadership roles in local Republican parties, and they have continued to overwhelm other constituencies within the ranks of party activists. It is through this means that they have come to exercise outsize influence in Republican policy.

While this outlines a road to success in the elected branches, it does not do the same for their finding direct representation in the judiciary.

As Steven Teles and Amanda Hollis-Brusky’s work both show, secular conservatives started to make a concerted effort to influence the courts in the 1980s. These moves are best seen in the creation and rise of the Federalist Society, which was started by law students at the University of Chicago, Yale and Harvard, but has since become the credentialing organization for conservative lawyers and gatekeeper for conservative judicial picks.

As quick illustration of the point, Leonard Leo, the Federalist Society’s co-chairman and former executive vice president, was instrumental in compiling Trump’s 2016 list of potential court nominees, and has been at the forefront of the GOP’s broader restaffing of the federal judiciary, from the Supreme Court down. Like other foundational leaders within the conservative movement, such as William F. Buckley and Paul Weyrich, he is also an active conservative Catholic.

The Federalist Society’s rapid ascent from student organization to the hub of the conservative legal movement springs in part from their understanding of how power works in the legal world. Law is an elitist profession that maintains its own internal hierarchies. It is no accident that the Supreme Court is dominated by the graduates of Harvard and Yale, and that a small number of schools produce a disproportionate number of the legal profession’s broader elite. In the world of law, credentialing matters.

While there is a longer history of Catholics being excluded from these institutions, there is also a long history of Catholic schools at all levels providing a means for their graduates to gain access to prestigious professions. As anti-Catholic discrimination at the nation’s elite institutions waned in the middle of the 20th century, Catholics were well positioned to attend and excel. The doors of elite institutions were open to them, and they were eager to take part.

The same cannot be said of evangelicals. The modern history of white evangelicals is marked by their separation from mainstream culture and their rejection of established, elite institutions. Suspicious of many existing colleges and universities, the second half of the 20th century saw the creation of new conservative Christian options in higher education — including the founding of Oral Roberts University in 1963, Liberty University in 1971 and Regent University in 1977— as well as the proliferation of evangelical Christian day schools.

But while it became possible to stay within this world for one’s whole education, the system was not equipped to produce lawyers. What’s more, it was believed that it was hard, if not impossible, for one to be a good Christian and a lawyer. In Timothy Floyd’s words, the legal realm was seen as “too corrupt and worldly for a Christian to be able to participate.” This led to the warning that existing and would-be Christian lawyers’ faiths could “be corrupted by the practice of law.” This combination of suspicion and sparse resources has worked against creating a deep reserve of conservative evangelical lawyers in the legal world’s seats of power, leaving the options for Supreme Court picks thin at best.

Conservative evangelical leaders have long since recognized the need to train lawyers. They have worked to reframe the legal practice as a religious calling, and have created new conservative Christian law schools and programs. As illustration of both, Regent University School of Law’s promotional materials used to tout its motto: “Law is more than a profession. It’s a calling.”

But given the legal profession’s reliance on a currency of credentialing, these new law schools are not well positioned to, as the late evangelical leader Rev. Jerry Falwell wanted, “produce a generation of Christian attorneys who could, in fact, infiltrate the legal profession with a strong commitment to the Judeo-Christian ethic.” Supplemental training and networking programs such as the Blackstone Legal Fellowship that recruit conservative religious students from elite law schools, however, just might be.

While such programs may provide a means to future evangelical representation on the nation’s high court—Amy Coney Barrett, while not a Blackstone alum, has served on the Blackstone faculty—conservative Catholics have found positions in the legal establishment’s top tiers. The confluence of these factors requires conservative evangelicals to rely on their Catholic political allies to represent their shared interests in the present, and to provide a model for evangelicals to follow so they can assume future seats on the bench. For now, well-credentialed conservative Catholic judges are the best means for conservative evangelicals to see their political interests represented in the judiciary.

However, the future of the Supreme Court specifically, and the federal judiciary more generally, is not just about producing qualified, traditionally credentialed lawyers. Staffing the bench is also dependent upon white evangelicals still being able to elect presidents and senators who share their aspirations. Conservatives have long understood that elections matter, that courts matter, and that elections matter for courts, but the Trump administration has been a crash course for Democrats to truly grasp and internalize the same lessons.

The future will be determined not only by who has the right lawyers in place to be picked, but who has the elected political power to pick them.