On December 1st, the Supreme Court had its day of oral argument in a landmark abortion case, Dobbs v. Jackson Women’s Health Organization, brought by the State of Mississippi. It was the first case that the Court had taken in thirty years in which the petitioners were explicitly asking the Justices to overturn Roe v. Wade, the 1973 decision legalizing abortion, and its successor, Planned Parenthood v. Casey, which affirmed that decision in 1992. If anyone needed a reminder that, whatever the Justices decide in Dobbs, it will not reconcile the American divide over abortion, the chaotic scene outside the Court made it clear. At the base of the marble steps, reproductive-rights supporters held a large rally in which they characterized abortion as a human right—and an act of health care. Pramila Jayapal, a Democratic U.S. representative from Washington State, described herself as “one of the one in four women in America who have had an abortion,” adding, “Terminating my pregnancy was not an easy choice, but it was my choice.” Jayapal could barely be heard, though, over the anti-abortion protesters who had also gathered, in even greater numbers. The day was sunny and mild, and though some of these demonstrators offered the usual angry admonishments—“God is going to punish you, murderer!” a man with a megaphone declaimed—most members of the anti-abortion contingent seemed buoyant. Busloads of students from Liberty University, an evangelical college in Lynchburg, Virginia, snapped selfies in their matching red-white-and-blue jackets. Penny Nance, the head of the conservative group Concerned Women for America, exclaimed, “This is our moment! This is why we’ve marched all these years!”
A major reason for Nance’s optimism was the presence on the bench of Amy Coney Barrett, the former Notre Dame law professor and federal-court judge whom President Donald Trump had picked to replace Ruth Bader Ginsburg, who died on September 18, 2020. With the help of Mitch McConnell, the Senate Majority Leader, Trump had accelerated Barrett’s nomination process, and the Senate confirmed her just a week before the 2020 Presidential election. As a candidate in the 2016 election, Trump had vowed to appoint Justices who would overturn Roe, and as President he had made it a priority to stock the judiciary with conservative judges—especially younger ones. According to an analysis by the law professors David Fontana, of the George Washington University, and Micah Schwartzman, of the University of Virginia, Trump’s nominees to the federal courts of appeals—bodies that, like the Supreme Court, confer lifetime tenure—were the youngest of any President’s “since at least the beginning of the 20th century.” Trump made three Supreme Court appointments, and Neil Gorsuch (forty-nine when confirmed) and Brett Kavanaugh (fifty-three) were the youngest of the nine Justices until Barrett was sworn in, at the age of forty-eight. Her arrival gave the conservative wing of the Court a 6–3 supermajority—an imbalance that won’t be altered by the recent news that one of the three liberal Justices, Stephen Breyer, is retiring.
Barrett has a hard-to-rattle temperament. A fitness enthusiast seemingly blessed with superhuman energy, she is rearing seven children with her husband, Jesse Barrett, a former prosecutor now in private practice. At her confirmation hearings, she dressed with self-assurance—a fitted magenta dress; a ladylike skirted suit in unexpected shades of purple—and projected an air of decorous, almost serene diligence. Despite her pro-forma circumspection, her answers on issues from guns to climate change left little doubt that she would feel at home on a Court that is more conservative than it’s been in decades. Yet she also represented a major shift. Daniel Bennett, a professor at John Brown University, a Christian college in Arkansas, who studies the intersection of faith and politics, told me that Barrett is “more embedded in the conservative Christian legal movement than any Justice we’ve ever had.” Outside the Court, Nance emphasized this kinship, referring to Barrett as “Sister Amy, on the inside.”
In recent years, conservatives have been intent on installing judges who will not disappoint by becoming more centrist over time. Sandra Day O’Connor and Anthony Kennedy sided with liberal Justices in a few notable cases, including ones that allowed same-sex marriage and upheld Roe. David Souter, who had become a federal judge just months before President George H. W. Bush nominated him to the Court, in 1990, moved leftward enough that “No More Souters” became a conservative slogan. A decade ago, Chief Justice John Roberts committed the unpardonable sin of providing a critical vote to keep the Affordable Care Act in place. In 2020, the seemingly stalwart Gorsuch delivered a blow, writing the majority opinion in a case which held that civil-rights legislation protected gay and transgender workers from discrimination. On the Senate floor, Josh Hawley, the Missouri Republican who later attempted to discredit the results of the 2020 Presidential election, declared that Gorsuch’s opinion marked the end of “the conservative legal project as we know it”—the “originalist” jurisprudence, prominent since the nineteen-eighties, that claims to be guided by the textual intent of the Founding Fathers. It was time, Hawley said, for “religious conservatives to take the lead.” Four months later, that new era unofficially began, when Barrett joined the Court.
For decades, leading members of the Federalist Society and other conservative legal associations have vetted potential appellate judges and Justices and provided recommendations to Republican Presidents. The Federalist Society has traditionally showcased judges with records of high academic distinction, often at élite schools; service in Republican Administrations; originalist loyalties; and a record of decisions on the side of deregulation and corporations. Barrett hadn’t served in an Administration, and, unlike the other current Justices, she hadn’t attended an Ivy League law school. She went to Notre Dame, and returned there to teach. These divergences, though, ended up becoming points in her favor—especially at a time when religious activists were playing a more influential role in the conservative legal movement. Notre Dame, which is just outside South Bend, Indiana, is a Catholic institution in a deeply red state, and it’s one of the relatively few well-respected law schools where progressives do not abound. Barrett’s grounding in conservative Catholicism, and even her large family, began to seem like qualifications, too. Andrew Lewis, a University of Cincinnati political scientist who studies faith-based advocacy, told me that religious conservatives often used to feel “looked down upon by some of the original Federalist Society members.” But, he went on, “they have increasingly gained power, and their concerns have become more central to the project.”