Donald Trump’s presidency will be remembered for many things, but his most enduring legacy will likely be his transformation of the federal judiciary. With the cooperation of Mitch McConnell and a Republican majority in the Senate, Trump’s one term as president saw the confirmation of more judges in any single term since the Carter administration. Though Trump leaves office with few signature legislative achievements, his judges will be shaping the nature of American law for decades.
Any discussion of Trump’s influence on the federal courts would be incomplete without recognizing the conservative legal movement. Organizations like the Federalist Society served as an incubator for most of Trump’s judges, establishing a network of like-minded jurists dedicated to specific principles of law and jurisprudence. It is no accident that each of Trump’s three Supreme Court nominations—including his final nominee, conservative Catholic and Notre Dame Law School alum Amy Coney-Barrett—have deep roots in the conservative legal movement.
Separate but Faithful: The Christian Right’s Radical Struggle to Transform Law and Legal Culture, by Amanda Hollis-Brusky and Joshua Wilson, tells the story of one element of the conservative legal movement, focusing on Christian conservatives and their efforts to develop a movement of their own in the American legal arena. The book explains how the Christian conservative legal movement (CCLM) was born, how it evolved, and how it is poised to continue to influence law and politics for the foreseeable future.
In doing this, Hollis-Brusky and Wilson focus their attention on how the CCLM’s support structure has aided its growth in a number of ways, including by developing human, cultural, and intellectual capital. The authors argue that the birth of distinctly Christian law schools and other training programs served as long-term investments in the growth of this movement, investments that are now starting to pay handsome dividends. In many respects, Coney-Barrett’s elevation to the Supreme Court is the latest (and perhaps greatest) victory for the CCLM. But as Separate but Faithful convincingly suggests, it is unlikely to be the last.
Separate but Faithful applies Charles Epp’s support structure framework to the world of the CCLM. It is an innovative and intuitive way of assessing a legal movement. Specifically, Hollis-Brusky and Wilson think of this structure as a pyramid. Although courts and judicial decisions may be at the apex of a legal movement’s support structure, beneath the apex, holding it up, are levels dedicated to litigation, legal training, and financial support. According to the authors, the CCLM has spent years developing the lower levels of its pyramid and is just now beginning to reap the benefits of a viable and healthy support structure.
After two chapters assessing the history and development of the CCLM—touching on different directions taken by Christian Right actors attempting to grow a strong Christian presence in the legal world—Hollis-Brusky and Wilson arrive at their analysis of the CCLM’s support structure pyramid; they focus on the level dedicated to capital development in different contexts. In these three chapters the authors’ creative methodologies and data analyses are on full display, combining original interviews with students, professors, and administrators at Christian law schools with qualitative textual analysis of materials related to the CCLM. It is a rich and impressive undertaking.
In their chapter on human capital, Hollis-Brusky and Wilson highlight the uniqueness of several Christian law schools relative to their secular peers, as well to places like Notre Dame and Baylor, which have Christian influences but not Christian missions. These Christian law schools—the authors focus on Regent, Liberty, and Ave Maria—all have ties to influential actors in the Christian Right, and they each have struggled to keep pace with other law schools in terms of preparing graduates to effectively enter the legal profession. Still, training legal professionals with a distinctly Christian worldview is an essential aspect of the CCLM’s support structure, and if admissions data are any indication, there remains a market for this sort of legal education.
Human capital, however, is essentially useless without cultural capital. In their next chapter, Hollis-Brusky and Wilson track how the CCLM’s investment in Christian law schools and legal training programs led to growth in the movement’s social cachet. The authors reference the concept of “credibility capital” (p. 117) through which the broader culture will recognize the CCLM as a legitimate and serious movement of legal professionals. They point to references (both positive and negative) in media along with affiliations with the broader conservative legal movement as evidence of social capital and argue that it establishes credibility in the broader legal community.
It is clear that each of the aforementioned Christian law schools invests in developing cultural and social capital, although some schools and organizations are more successful than others. Alliance Defending Freedom, perhaps the most influential Christian legal interest group operating today, is not affiliated with a specific law school, but its Blackstone Legal Fellowship draws on respected legal minds from the Christian and secular academy in training the next generation of Christian lawyers. Further, by targeting high-achieving Christian law students from non-Christian law schools, Blackstone strategically aims to train those with greater odds of reaching the upper echelons of the legal world. It is a distinction that Hollis-Brusky and Wilson are wise to note in making sense of the CCLM and the goals of its actors.
Separate but Faithful then turns to the CCLM’s investment in intellectual capital, which Hollis-Brusky and Wilson identify as academic publications, citation rates, and the creation of in-house journals. They find that faculty at Christian law schools do publish in law reviews, but at far lower rates than those of faculty at other law schools around the country, and the publications are almost always in unranked journals. Moreover, the authors’ analysis suggests a relatively insular intellectual community: “these schools appear to be cut off from the legal mainstream, but they also appear to be cut off from one another” (p. 174). Compared to human, social, and cultural capital, the CCLM’s intellectual capital leaves a lot to be desired. This means that, although the CCLM may be growing, it has not yet found a way to influence the legal conversation in a meaningful way.
Despite the book’s strengths, I was surprised that Hollis-Brusky and Wilson did not pay more attention to the CCLM’s recent successes at the US Supreme Court. They do note that Regent alums successfully argued major cases in recent years, including Town of Greece v. Galloway, Trinity Lutheran v. Comer and Masterpiece Cakeshop v. Colorado Civil Rights Commission (p. 133). But the book does not discuss the CCLM’s impressive streak of victories at the Supreme Court, nor does it touch on what these victories mean for the issues important to the CCLM. Given the book’s emphasis on the Christian Right’s efforts to transform law, I would have expected more attention to its successes here.
That said, Hollis-Brusky and Wilson provide a detailed and methodologically impressive account of a growing movement and use an innovative theoretical framework to explain the behavior and decisions of movements in general. Even though the book is about the CCLM, it could be about any movement. As such, Separate but Faithful has the potential to wield lasting influence.
