Politics Professor Amanda Hollis-Brusky, a sought-after expert on the conservative legal movement and the Supreme Court, has published a new book on efforts by benefactors of the Christian Right to create change by founding their own law schools.
Hollis-Brusky’s prominence as a scholar who studies the Federalist Society, the conservative and libertarian organization that has had an outsized influence on the selection of federal judges, led to her recent on “court capture” and its relationship to judicial independence and the rule of law.
Her latest book, co-authored with Joshua C. Wilson, a University of Denver political science professor, is (Oxford University Press, 2020).
The following interview was conducted by email.
Trying to transform legal culture by starting a law school is a slow process. Why did these schools emerge?
Hollis-Brusky: The short answer is that the Christian Right patrons who founded these new “separate but faithful” law schools did not see another viable path to influence in the legal profession. The three patrons who started what we refer to in the book as “Christian Worldview” law schools – Marion “Pat” Robertson (founder of the Christian Coalition), Jerry Falwell (founder of the Moral Majority) and Tom Monaghan (Domino’s Pizza mogul turned conservative Catholic patron) – sought to drastically reorient law and the legal profession and to infuse a Biblical perspective throughout the law. Moreover, they saw these law schools as ground zero for the training of a future generation of Christian culture warriors who would go on to fight for the causes they cared about in courts and legislatures around the country. For this project to work, these patrons needed to populate these law schools with devout faculty, administrators and – most importantly – law students. This meant carefully curating and controlling every aspect of the institution and maintaining a disciplined Christian conservative campus culture, student body and curriculum.
These ambitious goals could not be achieved through existing law schools, which were deemed to be too secular, too aligned with mainstream culture and too deeply influenced by a legal profession that by and large had moved away from a biblical understanding of law in its approach to education. Even the more conservative and nominally Christian law schools – Notre Dame Law School, for example – were deemed too risky for such a project since they were embedded in broader universities that had succumbed, in these founders’ views, to the mainstream, secular side of the culture wars.
So these patrons built their own law schools – Robertson established Regent Law School in Virginia Beach, Virginia, in 1986; Monaghan opened Ave Maria School of Law, now located in Naples, Florida, in 2000 and Falwell founded Liberty Law School in Lynchburg, Virginia, in 2004. As you note, each of these institutions required a high-cost, long-term investment where the payoff would always be decades away and ultimately uncertain. But in the short term, it provided these patrons with the one thing they would not have had were they to invest in existing law schools – control.
It’s easy to see a federal judge’s influence. How do lawyers contribute to change at a more grassroots level?
Hollis-Brusky: Political scientist Chuck Epp noted in his 1998 book The Rights Revolution that judges are a necessary but not a sufficient condition for broad scale or revolutionary legal change. They are one variable – an important one, but not the only one – in the equation for revolutionary change. That is because judges cannot make cases appear before them “as if by magic” (Epp 1998). As I often tell my students, judges cannot wake up one day and say “I’d like to radically change the understanding of the Second Amendment,” wave a magic wand and make a Second Amendment case appear before them. They require lawyers to bring cases to them that raise the kinds of questions or issues they are looking to address. Those lawyers need financing, or funding, to pursue the kinds of litigation strategies that will result in the right cases making their way up the courts of appeal and to appear, if they are fortunate, before the Supreme Court of the United States.
So, in Separate But Faithful, we visualize the deeper dynamics that support long-term legal change with what we call the “Support Structure Pyramid.” Judges sit at the apex of that pyramid, like the tiny, visible part of a large iceberg. That is what everyone pays attention to. But, as we show, there is a huge support structure beneath the surface that is equally as important, if not more important. Law schools like the ones we examine in this book are an important part of the story of long-term legal and constitutional change and development.
As the late Supreme Court Justice Felix Frankfurter once observed, “In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them” (Hollis-Brusky & Wilson 2020, 10). If you want to reshape the law, radically reorient law and legal culture, you have to start with the training and socialization of lawyers. You have to start with the law schools. That is what these Christian Right patrons recognized, and that is why law schools are such a major focus of their longer term legal and political strategy.
Roe v. Wade is an obvious focal point. What are some other issues that are central to the Christian Right?
Hollis-Brusky: The Supreme Court’s 1973 decision in Roe v. Wade establishing a constitutional right for a woman to choose an abortion was one of the primary catalysts for the political mobilization of Christian evangelicals. The organizations that formed in the mid-to-late 1970s to bring evangelicals into national electoral politics – organizations such as Jerry Falwell’s Moral Majority and Pat Robertson’s Christian Coalition – used the Supreme Court’s decision as a rallying cry to bring these voters to the polls for the GOP.
But Roe was only one part of what these Christian Right leaders saw as a broader assault on Christianity, religion and traditional morality in America. Limiting or forbidding prayer in public schools, the absence of religion in “the public square,” so to speak, the dissolution of the nuclear (heteronormative) family with the rise of divorce, feminism and the sexual revolution, an increasing appetite to tolerate and even embrace what they would refer to as the “homosexual agenda,” the teaching of evolution over Creationism in public schools, and the increasing encroachment of anti-discrimination laws and ordinances on persons of religious faith who morally objected to the tenets of the Civil Rights Act, for example. All of these grievances with contemporary American politics and culture have fueled and sustained the contemporary Christian Right as a political force in national politics.
How do these law schools do in terms of things like LSAT scores, bar exam pass rate and ABA accreditation?
Hollis-Brusky: Regent Law School, Liberty Law School and Ave Maria School of Law have spent their entire existence trying to climb out of the very bottom rung of the U.S. 鶹ý & World Report rankings of law schools. Each has struggled to varying degrees with attracting high-caliber students who are both devout Christians and excellent students; who are willing to immerse themselves in a campus culture and curriculum that is distinctly Christian and who are able to master the basic lawyer skills and knowledge required to pass the state bar exam, which licenses attorneys; who are willing to come to a new, unproven law school on faith that it will eventually serve them well in their careers.
New law schools always face an uphill battle in terms of accreditation and U.S. 鶹ý & World Report rankings. The rankings privilege prestige, the power of and placement of alumni, the training and experience of faculty, in addition to more traditional metrics of student quality measured by LSAT scores and undergraduate GPA of admitted students. And the American Bar Association, before it will grant accreditation to a new law school, needs to have the school check certain boxes in terms of faculty and student quality control, financing, resources and financial aid. Further complicating this for the Christian Worldview law schools is the fact that they are doing something radical and novel with their law school curriculum – teaching law in a distinctly different way than mainstream law schools.
This brings up one of the most interesting and important tensions we identified at play with these schools: How can these Christian Worldview law schools strike a balance between religiosity and excellence in lawyering? If they invest too much of their curriculum on training foot soldiers for the culture wars and not enough time on the basic skills required to pass the bar exam, then they risk losing accreditation from the American Bar Association, losing future prospective students and faculty, losing funding and donors, etc. This creates a vicious downward spiral, threatening their very existence as law schools. If, on the other hand, they invest too much time on basic lawyering at the expense of the distinctly Christian and biblical elements of the curriculum, then haven’t they sacrificed their very mission, their reason for existence as a separate but faithful space in the first place?
Who are the most prominent figures associated with these law schools?
Hollis-Brusky: Pat Robertson’s Regent Law School was founded in tandem with the Robertson-funded law firm, the American Center for Law and Justice (ACLJ). The ACLJ was meant to be a conservative Christian alternative to the American Civil Liberties Union (ACLU). The lead lawyer of ACLJ is Jay Sekulow. You might recognize him as President Trump’s personal attorney. He argued the Trump tax cases before the Supreme Court this past year and has gained a fair amount of notoriety for his proximity to the Trump administration. John Ashcroft also taught classes at Regent Law after serving as Attorney General in the George W. Bush administration.
Jerry Falwell, a Christian Right leader, founded Liberty Law School, which went to his son Jerry Falwell, Jr. after his death. In addition to being another high-profile figure within the Trump administration (running Trump’s task force on higher education, for example), Falwell Jr. was involved in a polyamorous marital scandal just a few months back and was forced to step down from his role at Liberty University. Phil Kline, the former Attorney General for the state of Kansas, is also a faculty member at Liberty Law. Kline earned his credentials with the Christian Right by using his office to investigate abortion providers in the state, famously leading a years-long effort to criminally prosecute Planned Parenthood.
When Domino’s Pizza founder Tom Monaghan first founded Ave Maria School of Law in Ann Arbor, Michigan in 2000, a number of high-profile conservatives signed on to the project. The late Justice Antonin Scalia consulted on the school’s curriculum, along with Notre Dame Law School professor Charles Rice. Additionally, failed Supreme Court nominee and notorious conservative Robert Bork signed on to the faculty and taught classes at the law school.
With Amy Coney Barrett’s confirmation, the score on the Supreme Court is Harvard 4, Yale 4, Notre Dame 1. Describe Notre Dame’s place among law schools.
Hollis-Brusky: We do a fairly deep dive into Notre Dame Law School in Separate But Faithful. Notre Dame Law School is conservative, Catholic, and excellent by all the traditional metrics that we use to rank law schools – LSAT, GPA, bar passage, faculty productivity, alumni placement and reputation. It is a hub of widely read and important scholarly activity and intellectual production for the Christian Right. It is where conservative Catholic Supreme Court Justices such as Clarence Thomas, Samuel Alito, and – before his death – Antonin Scalia went to pick their clerks. And now, as we see with the recent elevation of Amy Coney Barrett to the Supreme Court (who, by the way was still a law professor on faculty at Notre Dame when we were researching and conducting interviews there), Notre Dame will continue to be a pipeline to power for conservative Catholic law students and lawyers to the upper echelons of the legal profession.
From our perspective, Notre Dame represents one of the “roads not taken” for the Christian Right patrons who opted to build their own law schools instead of investing resources and energy into shaping or reshaping existing law schools. We explore Notre Dame as the road not taken in particular for Tom Monaghan, whose vision was to create a militantly Catholic law school. To paraphrase his words, “a West Point Academy for conservative Catholic lawyers.” Why not invest in Notre Dame Law School, endow some chairs, fund a postdoc program for extremely devout Catholic scholars, create a massive scholarship fund to attract more militantly conservative law students?
The answer, as I previewed earlier, turns on the fact that the law school is embedded in a broader university – the University of Notre Dame – that is diverse, that has secularized more so than the law school and is tolerant of if not encouraging of liberal views and beliefs. This secularization or liberalization is captured in a photo we took when we visited campus of a massive pride flag hanging just above a massive Notre Dame Fighting Irish flag outside of a dormitory room on campus. Moreover, the university has an LGBTQ club and invites pro-choice speakers to campus – things that are absolutely prohibited at Regent, Liberty and Ave Maria School of Law.
These elements prompted some faculty and students we interviewed at Ave Maria to describe Notre Dame as “a fake Catholic” school despite the solid and clear conservative bent and reputation of the law school itself. Again, we return to the theme of control: these Christian Right patrons wanted total control of every element of campus culture, curriculum and experience.
What’s your view on the likelihood of success in trying to shape the law through the training of lawyers?
Hollis-Brusky: I think that depends on how you define success. This is something we address in the final chapter of Separate But Faithful. If we look at traditional metrics of success and influence on the law and the legal profession, then these three unranked, fairly new Christian Worldview law schools have a long way to go before they can claim to be the caliber of institution of, say, a Notre Dame Law School.
That being said, we do find that even early on in their institutional lives, graduates of these law schools are getting access to the levers of power. We find, for example, that each of these schools is placing a higher percentage of graduates into government – especially state and local government, consistent with the strategy and tendencies of the Christian Right – into higher education and legal education, and into public interest law than their mainstream, secular competitors. This was one of the objectives of their founders, to place foot soldiers for the movement into positions of power. And they seem to be doing that.
Additionally, we find that the faculty of these Christian Worldview law schools are participating in state and federal litigation as amici curiae, that is “friends of the court,” at much higher rates than is estimated for legal academics as a whole. This means that in addition to their teaching, these faculty are actively working to influence the outcomes and legal reasoning of court cases. Moreover, the Trump administration’s cozy relationship with the Christian Right opened up avenues for access and influence at the national level for faculty, administrators and graduates of these Christian Worldview law schools; avenues we would not have predicted when we first started this project back in 2011.
But another way of defining success is what we dub the “Polonius Standard” in honor of Shakespeare’s Hamlet (“This above all: to thine own self be true”) (Hollis-Brusky & Wilson 2020, 205). Have they been true to their mission? That is, have they resisted the temptation to secularize and sacrifice their animating principles, their raison d’etre, in exchange for more mainstream metrics and accolades of success? For the most part, we find that these Christian Worldview law schools have stayed true to their founding missions. They have managed to persist despite a variety of threats in the form of ABA sanctions, funding issues, bad press from the mainstream media, and market pressures.
In this way, as we show, Regent Law School, Liberty Law School and Ave Maria School of Law stand as symbols of resistance and defiance of traditional, mainstream legal education and culture; as beacons for the Christian Right and a signal to rank-and-file members that not every elite space must succumb to liberal pressures. Removed from the wider legal and political world, these law schools hold space – a separate but faithful space – within the law and the legal profession for devout conservative Christians aspiring to bring the world closer to them.