A Conservative Legal Movement Rose Alongside Ginsburg. Barrett Is Its Apex | Opinion

The late Justice Ruth Bader Ginsburg was first nominated as a federal appellate judge by President Jimmy Carter in April of 1980, and she was confirmed in June of that year. Carter would lose his position less than five months later to Ronald Reagan, marking not only a change in the presidency but a far more lasting one in American politics. From their new position of power in the White House, conservatives set their eyes on exerting influence on a range of institutions, including the judiciary. We are watching the continued fruits of those efforts, started roughly four decades ago, in the confirmation hearings for Judge Amy Coney Barrett to replace Ginsburg on the Supreme Court.

The most substantial advance in the move to exert conservative influence in the courts started in 1982, with the creation of the Federalist Society for Law and Public Policy Studies. The Federalist Society, as it is more commonly known and referred to, started as a student organization in some of the nation's most elite law schools. The eventual Supreme Court Justice Antonin Scalia helped organize one of the original chapters in his role as a law professor at the University of Chicago.

In the absence of another conservative legal networking organization, the Federalist Society quickly expanded to become the gatekeeper of legal power in conservative circles. Since its founding, the group has moved from hosting intellectual debates on campus to now having student, lawyer and faculty divisions, an annual national convention and law practice groups. Beyond the formal events, the networking that takes place through the organization facilitates professional advancement, as well as the fostering of collaborative efforts, in the terms used on the organization's web page, "dedicated to reforming the current legal order" in a decidedly conservative direction. It is no wonder, then, that conservative presidents have relied on the society as a means for their judicial picks.

The Christian right was another group that used Reagan's election as a springboard to power, but it was not well positioned to pursue its interests in the courts and was not a notable presence within the Federalist Society. By the time Ginsburg was nominated and confirmed for a seat on the Supreme Court in 1993, however, the Christian right was well on its way to creating its own institutions to exert power in the courts.

Just as the Federalist Society is the most effective organization within the secular conservative legal movement, Alliance Defending Freedom is arguably the most capable and impactful one within the parallel Christian conservative legal movement. Started in the same year that Ginsburg became a Supreme Court justice, ADF is organized differently from the Federalist Society, but it is no less built to pursue a conservative mission through the courts. Alarmed by what they saw as a lack of Christians "showing up in court to put up a fight," a collection of leading Christian right patrons organized to establish an organization dedicated to "funding cases, training attorneys, and successfully advocating...in court" in order to "keep the doors open for the Gospel."

Barrett started as a law student at Notre Dame as the Christian conservative legal movement was being established and as the Federalist Society was accelerating toward its place of prominence. She joined the Notre Dame Law School faculty after serving out "two high-profile conservative clerkships," the second most notably with Scalia, and became part of the process that resulted in the law school becoming what one faculty member referred to as "kind of like the Federalist Society distilled."

Judge Amy Coney Barrett
Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on Capitol Hill on October 14 in Washington, D.C. Andrew Caballero-Reynolds-Pool/Getty

Returning to the two most prominent institutions in the secular and Christian conservative legal movements, the Federalist Society lists Barrett among its "contributors," and she has served as a faculty member for ADF's legal training program, the Blackstone Legal Fellowship.

Although the two streams of the conservative legal movement are commonly seen as indistinguishable, they are rightly noted as distinct from each other. The secular conservative legal movement, like the mainstream GOP in the 1980s, didn't readily incorporate the newly formed Christian right, and so the Christian right established its own institutions. As such, the divisions remind us that the political right and left are coalitions, not monoliths.

With her solid footing in both conservative legal movements, Barrett represents the right-wing coalition at its most powerful. Considering this, she was not only a natural choice to unite the range of conservatives whose support she needs, but she is well positioned to become an icon antithetical to the one that she has been tapped to replace. Unlike Ginsburg, however, who rose to this status through her dissents, Barrett stands to join a court where her notoriety can come from writing majority opinions for a conservative movement that has been building toward this for the course of the former's career on the bench, and the latter's life.

Joshua C. Wilson is a professor of political science at the University of Denver. He is the author of The New States of Abortion Politics, The Street Politics of Abortion: Speech, Violence, and America's Culture Wars, and most recently a co-author of Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture.

The views expressed in this article are the author's own.