At a campaign rally in North Carolina on Saturday, Trump promised to nominate a woman to the seat on the Supreme Court that opened with the passing of Justice Ruth Bader Ginsburg. That indicates that his pick is likely to come down to a choice between Amy Coney Barrett and Barbara Lagoa.
Barrett was previously appointed by Trump to serve on the U.S. Court of Appeals for the Seventh Circuit and became a serious contender for a nomination to the Supreme Court when Justice Anthony Kennedy retired. In the end, however, Trump chose Brett Kavanaugh and announced that he was saving Barrett for Ruth Bader Ginsburg’s seat.
Similarly, Trump nominated Lagoa to serve on the U.S. Court of Appeals for the Eleventh Circuit. As a Cuban American from Miami, Florida Republicans are organizing to support her nomination as a way for Trump to improve his electoral chances in that state.
Of course, there is always the chance that Trump will surprise us with his pick, but there is one thing we can know for certain: whoever he chooses will have been vetted by the Federalist Society, the same people who will shepherd her through the confirmation process. But that’s nothing new, the only Supreme Court nominee put forward by a Republican president since the 1990s who wasn’t tied to the Federalist Society was Harriet Miers, and we all know what happened to her. There were many things that upended the Miers nomination, but the fact that she didn’t have the Federalist Society in her corner when the criticisms started meant that she was on her own and doomed from the start.
The man at the Federalist Society who has helped shepherd the confirmation process for Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch and Brett Kavanaugh is Leonard Leo. In other words, he has already played a major role in giving conservatives their majority on the Supreme Court. So it is important to know what drives his commitment to remake the courts.
It is the Federalist Society’s focus on limiting the role of government via lower taxes and deregulation that funnels the flow of dark money into the network of nonprofits Leo has created to run public relations campaigns in support of the judges he puts forward. Robert O’Harrow Jr. and Shawn Boburg documented that process extensively in an expose titled, “A conservative activist’s behind-the-scenes campaign to remake the nation’s courts.”
Even as Leo counseled Trump on judicial picks, he and his allies were raising money for nonprofits that under IRS rules do not have to disclose their donors. Between 2014 and 2017 alone, they collected more than $250 million in such donations, sometimes known as “dark money,” according to a Post analysis of the most recent tax filings available. The money was used in part to support conservative policies and judges, through advertising and through funding for groups whose executives appeared as television pundits.
Dark money donors invest in a Supreme Court nominee in order to reduce the regulatory power of the state by placing limits on what Congress and judges can do, which comes right out of the Republican playbook. But what is less known about Leo is how his religious views have had an impact on the courts.
You might call it a coincidence that Leo is Catholic and all of the Supreme Court justices he has been involved with since the 1990s have been Catholic – with the exception of Gorsuch, who was raised Catholic but attended an Episcopal church after he married an Anglican. At this point, the two women who appear to be in contention for nomination by Trump (and put forward by Leo and the Federalist Society) are also Catholic. What is of concern, however, is not their religion, but how it influences their view of the role of the courts. For example, while a professor at Notre Dame, Barrett said that a “legal career is but a means to an end … and that end is building the Kingdom of God.”
Given what we know about Leo, that is probably a sentiment he would endorse. He currently serves on the board of the Catholic Information Center—as have Attorney General Bill Barr and White House Counsel Pat Cipollone. Founded by Opus Dei, it is akin to the Protestant group Jeff Sharlet wrote about in his book, “The Family: The Secret Fundamentalism at the Heart of American Power.” Leo even went so far as to launch the Catholic alternative to that group’s National Prayer Breakfast.
The priest who put the Catholic Information Center at the heart of national politics, Rev. C. John McCloskey, was removed from that position by Opus Dei in 2003 on the heels of several allegations of sexual assault. But it was McCloskey’s approach that gained the CIC prominence in national politics and attracted luminaries like Leo. That is because McCloskey brought to Catholicism an emphasis that has been more visible in some Protestant denominations: evangelism. Incorporating the need to proselytize moves religious faith beyond the arena of the personal to one in which, as Barrett suggested, it’s all about “building the Kingdom of God.”
To accomplish that goal, McCloskey set out to influence the rich and powerful, writing that, “[I]n the first several centuries of Christianity the Gospel was most successfully preached not to the poor and the outcasts, but rather to the prosperous middle classes and educated upper classes in the cities.” As Chris Suellentrop wrote, McCloskey’s authoritarian approach is revealed by the anti-intellectual expectation that followers make a leap of faith, “with their eyes closed and their hands over their ears.” When it comes to what is involved in that leap of faith, Suellentrop provides this summary:
He describes the period after Vatican II as a “generally unfortunate period for our country and our Church,” calls coeducation a “failure,” and notes the “particular needs of the complementary yet quite different sexes.” He advises college students to avoid “nominal” Catholic colleges (meaning Notre Dame, Georgetown, Boston College, and the like) that emphasize concepts like “openness, just society, search, diversity, and professional preparation.”
As someone who grew up in the Protestant version of that kind of faith, it is fascinating to see how various forms of religious fundamentalism converge when you get beyond some of the particular doctrines. Perhaps that is why there has been a joining of Christian nationalists across the more traditional divide between Catholics and Protestants to fight the so-called “culture wars.” However, the latter might be uncomfortable with the fact that McCloskey predicted the demise of Protestantism, saying, “Over time, most of them will fall away from Christianity or become Catholics.”
What we can see from this is that there are two wings of Christian nationalism: the Protestant and the Catholic. There hasn’t been a Protestant on the Supreme Court since Justice Stevens retired in 2010, which has caused some grumbling from the protestant wing. With the two most likely Trump nominees under consideration, that’s not likely to change anytime soon.
While it is the protestant wing of Christian nationalism and its “court evangelicals” that have garnered the most attention, it is the Catholic wing that is gaining influence in the courts, primarily due to the efforts of Leonard Leo. At this point, that seems to be working for both groups.