The Supreme Court turned away an appeal on Monday brought by a man who faces the very real possibility of being tortured to death. Missouri intends to execute Ernest Johnson, who was sentenced to death in 1994, using pentobarbital; due to Johnson’s unique medical condition, the drug may inflict excruciating agony as he dies. Just two years ago, the court’s conservative majority—including, most prominently, Justice Brett Kavanaugh—suggested that an inmate in this exact situation could demand a different, less painful execution.
Johnson did precisely what Kavanaugh asked, asking that Missouri kill him by firing squad instead of lethal injection. Yet Kavanaugh and his five conservative colleagues ignored his plea on Monday, condemning Johnson to a death that may be violent and prolonged. In her pointed dissent, Justice Sonia Sotomayor highlighted her colleague’s perverse retreat from his earlier promise. It appears that Sotomayor, like Justice Elena Kagan, is fed up with Kavanaugh’s habit of posturing as a moderate, then voting like a reactionary. When the stakes are low, Kavanaugh knows how to sound like a reasonable, empathetic centrist. But when an actual person’s rights are on the line, Kavanaugh’s vote is nowhere to be found.
Johnson v. Precythe, the case that SCOTUS swatted away on Monday, constitutes yet another challenge to the grisly impact of lethal injection on the human body. In 2008, Johnson—who was convicted of murder and sentenced to death in 1994—underwent brain surgery to remove a tumor. In 2008, doctors removed about 20 percent of his brain tissue, causing severe scarring that left a brain defect. They did not eliminate the entire tumor. This trauma to Johnson’s brain, combined with remaining tumor cells, triggered epilepsy. Missouri now wants to kill him using pentobarbital, but the drug both triggers seizure and exaggerates sensations of pain. In 2016, Johnson alleged that lethal injection would therefore trigger a massive seizure and inflict an unconstitutional amount of pain, and initially asked that Missouri execute him using nitrogen gas instead.
This request was not far-fetched, since Missouri law explicitly authorizes the use of nitrogen gas in executions. In 2019’s Bucklew v. Precythe, however, the Supreme Court ruled that Missouri’s death row inmates could not demand death by gassing as an alternative to lethal injection. The court’s conservative majority held that gassing was not a viable option because it could not be “readily implemented” and had “no track record of successful use.” (Missouri’s neighbor Oklahoma currently uses gas for executions, as have many other states throughout history.) In short, Missouri did not want to figure out how to gas its prisoners, and the Supreme Court would not force it to learn. A state’s refusal to adopt new methods of execution can justify torture.
Bucklew was a brutal decision that was made possible by Justice Anthony Kennedy’s retirement. Kennedy served as a moderating force on Eighth Amendment issues, often limiting the scope of conservative decisions on capital punishment. And, indeed, shortly before he retired, Kennedy cast the deciding vote in a 5–4 decision staying the execution at issue in Bucklew. By the time the court heard arguments in the case, though, Kennedy had retired. It seems his hand-picked successor, Kavanaugh, was content with Bucklew’s extremism, since he joined the majority.
While Kavanaugh did not moderate Bucklew from a legal perspective, he did deploy a rhetorical smoke screen to make the decision sound less cruel. The justice wrote a concurring opinion to “underscore” an “additional holding” of Bucklew that favored capital defendants, one that “all nine Justices today agree on.” Yes, an inmate must present an alternative method of execution to avoid torturous lethal injection, the justice wrote. But, he added, “the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.” Thus, there is “little likelihood” that an inmate will not be able to identify a feasible alternative. Kavanaugh also pointed out that Missouri had even conceded, at oral argument, that inmates could request a firing squad, even though that method is not authorized by state law.
Kavanaugh’s concurring opinion in Bucklew set out a clear path for Johnson. He could no longer demand death by nitrogen gas. But he could ask for death by firing squad, as the state itself admitted before the Supreme Court. So he tried to amend his complaint to plead death by firing squad as an alternative to lethal injection. Then he ran into a roadblock at the 8th U.S. Circuit Court of Appeals. According to the 8th Circuit, Johnson’s request came too late; he should have requested a firing squad earlier, before Bucklew came down, and before SCOTUS gave him a legal basis to do so.
How could that be? As Kavanaugh explained, Bucklew marked the first time the Supreme Court declared that capital defendants could request a method of execution that is not authorized under state law. Yet the 8th Circuit did not see it that way. It held that Bucklew did not constitute “an intervening change in law” that would allow Johnson to amend his complaint.
Kavanaugh should have leapt at the chance to correct this holding, which contradicted his own concurrence. But on Monday, he declined the opportunity. His inaction prompted Sotomayor, in dissent, to foreground his broken promise. Sotomayor’s dissent repeatedly cited Kavanaugh’s concurring opinion in Bucklew, quoting from it extensively. It was Kavanaugh, she noted, who explicitly wrote that Bucklew changed the law (which the 8th Circuit denied). It was Kavanaugh who wrote that inmates “in exactly this situation should have little trouble identifying an available alternative.” And it was Kavanaugh who “emphasized” Missouri’s agreement that an inmate could request a firing squad.
Johnson’s “only misstep,” Sotomayor wrote, was “failing to predict Bucklew and address it pre-emptively. He bears no fault for that.” The fault lies with Kavanaugh, who extended the hope of relief, then walked away when Johnson tried to take him up on it.
At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.
After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.
Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice.
This year, the Trump campaign and Republicans in Iowa have pushed to invalidate tens of thousands of absentee ballot applications with missing information that had been filled in by county officials.
“It’s the very antithesis of what we were arguing to the courts back then,” said Daryl Bristow, who represented the Bush campaign in the Martin County absentee ballot case and a related suit in nearby Seminole County. “We were trying to keep voters from being disenfranchised.”
As both parties brace for the possibility of another contested election that Trump has suggested could go to the high court, the previously unreported role of his Supreme Court nominee in the absentee ballot fight is more than a historical footnote. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh also played a role in Bush v. Gore — meaning that if Barrett is confirmed, three of the nine justices will have participated in litigation related to the only presidential contest to be decided by the high court.
“Here we are, two decades after Bush v. Gore, and it’s as if it was yesterday,” said Daniel Smith, a University of Florida political science professor. “It divided the nation 20 years ago, and it’s amazing how it continues to be a specter in national politics.”
In the U.S. Senate questionnaire she submitted late last month, Barrett said she spent a week in Florida contributing research and briefing assistance on Bush v. Gore, but provided no specifics. Court records show that she is on the list of lawyers who were served with filings in the Martin County case, indicating her involvement in that suit.
Barrett did not respond to a request for comment made through the White House and has not publicly discussed her precise duties in the Martin County case. In her Senate questionnaire, she said she worked in Florida with Stuart Levey, a partner in the Washington law firm Miller, Cassidy, Larroca & Lewin, who was part of the Bush team battling to keep the Republican mail votes. (Miller Cassidy merged with the venerable firm Baker Botts the following year.)
Levey declined to comment.
First in her law school class at Notre Dame and a former clerk for Supreme Court justice Antonin Scalia, Barrett fit the profile of the kind of up-and-coming conservative lawyer the Republican Party recruited to parachute into Florida to help in the hotly contested recount.
Amy Douthit Maddux, a junior lawyer on the Bush team who remembers communicating with another lawyer named Amy on the case, said, “It was just exciting to be able to work on something of such importance as a very young lawyer, and given the speed with which things were happening, everyone was relied upon.”
The Martin County plaintiff, Ronald Taylor, was seeking to capitalize on a glitch in the state Republican Party’s absentee ballot program.
Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms, add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them.
The Democratic plaintiff argued those votes were tainted. “It was a sinister underground conspiracy,” argued his attorney Edward Stafman, according to newspaper accounts.
Along with the similar lawsuit in nearby Seminole County, Democrats were trying to nix roughly 25,000 absentee votes in a contest in which Bush was leading by 537 votes.
Back-to-back trials were held in Leon County Circuit Court in Tallahassee. The judges issued a joint statement: “Despite irregularities in the requests for absentee ballots, neither the sanctity of the ballots nor the integrity of the election has been compromised, and . . . the election results reflect a full and fair expression of the will of the voters.”
Democratic presidential nominee Al Gore, whose campaign was making the case that every vote must be counted, did not join the lawsuits.
“It tells you that sometimes what goes around comes around,” said veteran GOP election lawyer Benjamin L. Ginsberg, who served as national counsel for the Bush campaign, and noted that Democrats this year are fighting to expand which mail ballots are counted. “You have to admire the irony of the moment since that is not consistent with the position [Democrats are] taking now.”
The Martin and Seminole County plaintiffs immediately appealed to the Florida Supreme Court as the clock ticked toward the deadline for the state to appoint its 25 presidential electors. “It was a crazy, crazy kind of schedule,” said Mark Miller, then a colleague of Barrett, who recalled scrambling with her from Washington to Orlando to assist the Bush campaign.
The same day the U.S. Supreme Court essentially handed the election to Bush by putting a stop to manual recounts in the state, the Florida Supreme Court upheld the trial court’s decision in the Martin and Seminole County cases.
“It was a no-brainer on the law,” Maddux said. “There was no proof anywhere that the people who voted should not have voted. But they were important cases because had it gone south, it would have been enough to change the results.”
Along with young lawyers like Barrett, the GOP pulled in seasoned constitutional experts for help in Florida.
Roberts, a then 45-year-old who had worked in the White House and argued dozens of cases before the U.S. Supreme Court as a partner in a Washington law firm, was summoned to Tallahassee to advise the Bush campaign and prep a lawyer appearing before the Florida Supreme Court.
That lawyer was Michael Carvin, a Washington-based voting rights expert, who said Roberts’ legal skills and grasp of constitutional issues were prized in the early weeks of the election dispute.
The Bush campaign was opposing Democratic efforts to extend the recount in Palm Beach County and arguing that the Florida secretary of state had the authority to declare a winner seven days after the election. Lawyers hunkered down at the Republican Party’s headquarters in Tallahassee worked frantically to submit the brief to the Florida Supreme Court on a Sunday evening. “It was bedlam,” Carvin recalled.
To prepare for court the next day, Carvin, Roberts and a handful of others adjourned to attorney Barry Richards’s Tallahassee law office. In the relative quiet of a conference room, Roberts helped Carvin hone his responses to questions he expected from the state court judges, Carvin recalled.
“It wasn’t brain surgery,” he said, adding that the legal issues were straightforward. But he said having Roberts on hand was helpful not only for that moment, but in anticipating future legal developments.
Carvin said he and Roberts correctly guessed that Bush would lose that state court skirmish over the Palm Beach County recount. But while preparing for that battle, they developed a strategy that would raise the federal issues that would assure a later review by the U.S. Supreme Court, he said.
Roberts returned to Tallahassee in December to offer counsel to then-Gov. Jeb Bush, who was in the crosshairs as his brother’s leading campaign surrogate and the chief executive of a state facing an election meltdown.
In an email to The Washington Post, Bush said he had asked his top legal advisers “to find the best constitutional lawyers to brief me on my Constitutional duties as Governor . . . I recused myself from responsibilities regarding state law but I had ministerial duties I wanted to do correctly.”
Frank Jimenez, then acting general counsel to Gov. Bush, said he recommended Roberts on a suggestion from Dean Colson, a prominent Miami lawyer who had co-clerked with Roberts for Supreme Court Justice William H. Rehnquist. The night before the appointment with Bush, Jimenez, a son of Cuban immigrants, took Roberts to Carlos’ Cuban Cafe in Tallahassee for dinner.
During their hour-long meeting, Roberts and Bush discussed two election-related documents the governor needed to sign and send to the National Archives, Jimenez said.
“Thank you for your time today. I really appreciate your input on my role in this unique and historic situation,” Bush said in an email to Roberts released shortly before the governor’s presidential campaign launch in 2015.
In contrast to Roberts and Barrett, who worked quietly behind the scenes in Florida, Kavanaugh was out in public on behalf of the Bush campaign.
Then a 35-year-old partner at one of the nation’s largest law firms and battle-tested from working with independent counsel Ken Starr to investigate President Bill Clinton, he went to Democratic-leaning Volusia County in central Florida to help oversee a manual recount of roughly 200,000 ballots, according to Kavanaugh’s Senate questionnaire. He had been serving as a regional coordinator for the Bush campaign’s coalition of legal supporters.
Unlike in South Florida, where punchcard ballots led to the much-maligned hanging chads, Volusia County used optical scan ballots. Kavanaugh helped direct the Republican strategy of closely scrutinizing ballots where voters had failed to properly fill in the bubble next to a candidate’s name, said Shannen Coffin, another Republican attorney on the ground in Volusia.
“Brett was kind of the guy we looked up to,” said Coffin, who later served as counsel to Vice President Richard B. Cheney. “If there was an irregularity in the recount process, he wanted it documented. It was a zealous representation of a client, but not a win-at-any-cost strategy.”
Weeks later, Kavanaugh delivered legal analysis on national television outside the U.S. Supreme Court on the eve of the momentous decision that ended the election morass. He would go on to serve as associate counsel to the new president.
“I think what we are seeing is more of a divide over how to interpret the Constitution than really political differences,” Kavanaugh said in the interview with CNN’s Wolf Blitzer. “I don’t think the justices care that it’s Bush versus Gore or if it were Gore versus Bush. What they care about is how to interpret the Constitution, what are the enduring values that are going to stand a generation from now.”
Deborah Ramirez’s Yale experience says much about the college’s efforts to diversify its student body in the 1980s.
Deborah Ramirez had the grades to go to Yale in 1983. But she wasn’t prepared for what she’d find there.
A top student in southwestern Connecticut, she studied hard but socialized little. She was raised Catholic and had a sheltered upbringing. In the summers, she worked at Carvel dishing ice cream, commuting in the $500 car she’d bought with babysitting earnings.
At Yale, she encountered students from more worldly backgrounds. Many were affluent and had attended elite private high schools. They also had experience with drinking and sexual behavior that Ms. Ramirez — who had not intended to be intimate with a man until her wedding night — lacked.
During the winter of her freshman year, a drunken dormitory party unsettled her deeply. She and some classmates had been drinking heavily when, she says, a freshman named Brett Kavanaugh pulled down his pants and thrust his penis at her, prompting her to swat it away and inadvertently touch it. Some of the onlookers, who had been passing around a fake penis earlier in the evening, laughed.
To Ms. Ramirez it wasn’t funny at all. It was the nadir of her first year, when she often felt insufficiently rich, experienced or savvy to mingle with her more privileged classmates.
“I had gone through high school, I’m the good girl, and now, in one evening, it was all ripped away,” she said in an interview earlier this year at her Boulder, Colo., home. By preying upon her in this way, she added, Mr. Kavanaugh and his friends “make it clear I’m not smart.”
Mr. Kavanaugh, now a justice on the Supreme Court, has adamantly denied her claims. Those claims became a flash point during his confirmation process last year, when he was also fighting other sexual misconduct allegations from Christine Blasey Ford, who had attended a Washington-area high school near his.
Ms. Ramirez’s story would seem far less damaging to Mr. Kavanaugh’s reputation than those of Dr. Ford, who claimed that he pinned her to a bed, groped her and tried to remove her clothes while covering her mouth.
But while we found Dr. Ford’s allegations credible during a 10-month investigation, Ms. Ramirez’s story could be more fully corroborated. During his Senate testimony, Mr. Kavanaugh said that if the incident Ms. Ramirez described had occurred, it would have been “the talk of campus.” Our reporting suggests that it was.
At least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge. Two of those people were classmates who learned of it just days after the party occurred, suggesting that it was discussed among students at the time.
We also uncovered a previously unreported story about Mr. Kavanaugh in his freshman year that echoes Ms. Ramirez’s allegation. A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. Mr. Stier, who runs a nonprofit organization in Washington, notified senators and the F.B.I. about this account, but the F.B.I. did not investigate and Mr. Stier has declined to discuss it publicly. (We corroborated the story with two officials who have communicated with Mr. Stier; the female student declined to be interviewed and friends say she does not recall the episode.)
Mr. Kavanaugh did not speak to us because we could not agree on terms for an interview. But he has denied Dr. Ford’s and Ms. Ramirez’s allegations, and declined to answer our questions about Mr. Stier’s account.
Yale in the 1980s was in the early stages of integrating more minority students into its historically privileged white male population. The college had admitted its first black student in the 1850s, but by Ms. Ramirez’s time there, people of color comprised less than a fifth of the student body. Women, who had been admitted for the first time in 1969, were still relative newcomers.
Mr. Kavanaugh fit the more traditional Yale mold. His father was a trade association executive, his mother a prosecutor and later a judge. They lived in tony Bethesda, Md., and owned a second home on Maryland’s Eastern Shore. As a student at a prominent Jesuitall-boys school, Georgetown Prep, Mr. Kavanaugh was surrounded by the sons of powerful Washington professionals and politicians. He was an avid sports fan and known to attend an annual teenage bacchanal called “Beach Week,” where the hookups and drinking were more important than the sand and swimming.
Ms. Ramirez grew up in a split-level ranch house in working-class Shelton, Conn., perhaps best known for producing the Wiffle ball, and didn’t drink before college. Her father, who is Puerto Rican, rose through the Southern New England Telephone Company, having started as a cable splicer. Her mother, who is French, was a medical technician.
Before coming to Yale, Ms. Ramirez took pride in her parents’ work ethic and enjoyed simple pleasures like swimming in their aboveground pool, taking camping trips and riding behind her father on his snowmobile. She was studious, making valedictorian at her Catholic elementary school and excelling at her Catholic high school, St. Joseph.
She and her parents took out loans to pay for Yale, and she got work-study jobs on campus, serving food in the dining halls and cleaning dorm rooms before class reunions.
She tried to adapt to Yale socially, joining the cheerleading squad her freshman year, sometimes positioned at the pinnacle of the pyramid. But Ms. Ramirez learned quickly that although cheerleading was cool in high school, it didn’t carry the same cachet at Yale. People called her Debbie Cheerleader or Debbie Dining Hall or would start to say “Debbie does … ” playing on the 1978 porn movie “Debbie Does Dallas.” But Ms. Ramirez didn’t understand the reference.
“She was very innocent coming into college,” Liz Swisher, who roomed with Ms. Ramirez for three years at Yale and is now a physician in Seattle, later recalled. “I felt an obligation early in freshman year to protect her.”
There were many more unhappy memories of college. Fellow students made fun of the way she dropped consonants when she spoke, but also ribbed her for not being fluent in Spanish. They mocked her knockoff black-and-red Air Jordans. They even questioned her admission on the merits. “Is it because you’re Puerto Rican?” someone once asked her.
“My mom would have preferred me to go to a smaller college — looking back at it, she was right,” Ms. Ramirez said. At Yale, “they invite you to the game, but they never show you the rules or where the equipment is.”
It wasn’t until she got a call from a reporter and saw her account of Mr. Kavanaugh described as “sexual misconduct” in The New Yorker that Ms. Ramirez understood it as anything more than one of many painful encounters at Yale.
Ms. Ramirez also did not see herself as a victim of ethnic discrimination. The college campuses of the 1980s had yet to be galvanized by the identity and sexual politics that course through today’s cultural debates.
Years after graduating, however, she started volunteering with a nonprofit organization that assists victims of domestic violence — the Safehouse Progressive Alliance for Nonviolence, or SPAN. She became a staff member for a time and continues to serve on its board. Gradually she embraced her Puerto Rican roots.
This awakening caused Ms. Ramirez to distance herself from the past. She fell out of touch with one Yale friend — who had asked Ms. Ramirez to be her daughter’s godmother — after the friend’s husband made fun of a book she was reading on racial identity. The husband, a Yale classmate, was one of the students she remembered being at the dorm party that difficult night.
“If I felt like a person in my life wasn’t going to embrace my journey or would somehow question it,” she said, “I just let them go.”
Mr. Kavanaugh’s confirmation hearings were wrenching, as he strained to defend his character after Dr. Ford’s searing testimony. Thousands of miles away, Ms. Ramirez, who was never asked to testify, also found the hearings distressing. Her efforts to backstop her recollections with friends would later be cited as evidence that her memory was unreliable or that she was trying to construct a story rather than confirm one.
Ms. Ramirez’s legal team gave the F.B.I. a list of at least 25 individuals who may have had corroborating evidence. But the bureau — in its supplemental background investigation — interviewed none of them, though we learned many of these potential witnesses tried in vain to reach the F.B.I. on their own.
Two F.B.I. agents interviewed Ms. Ramirez, telling her that they found her “credible.” But the Republican-controlled Senate had imposed strict limits on the investigation. “‘We have to wait to get authorization to do anything else,’” Bill Pittard, one of Ms. Ramirez’s lawyers, recalled the agents saying. “It was almost a little apologetic.”
Senator Sheldon Whitehouse, Democrat of Rhode Island and member of the Judiciary Committee, later said, “I would view the Ramirez allegations as not having been even remotely investigated.” Other Democrats agreed.
Ultimately, Senator Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, concluded, “There is no corroboration of the allegations made by Dr. Ford or Ms. Ramirez.” Mr. Kavanaugh was confirmed on Oct. 6, 2018, by a vote of 50-48, the closest vote for a Supreme Court justice in more than 130 years.
Still, Ms. Ramirez came to feel supported by the very Yale community from which she had once felt so alienated. More than 3,000 Yale women signed an open letter commending her “courage in coming forward.” More than 1,500 Yale men issued a similar letter two days later.
She also received a deluge of letters, emails and texts from strangers containing messages like, “We’re with you, we believe you, you are changing the world,” and “Your courage and strength has inspired me. The bravery has been contagious.”
College students wrote about how Ms. Ramirez had helped them find the words to express their own experiences. Medical students wrote about how they were now going to listen differently to victims of sexual violence. Parents wrote about having conversations with their children about how bad behavior can follow them through life. One father told Ms. Ramirez he was talking to his two sons about how their generation is obligated to be better.
Ms. Ramirez saved all of these notes in a decorative box that she keeps in her house, turning to them even now for sustenance. One person sent a poem titled “What Is Justice” that has resonated deeply with her.
“You can’t look at justice as just the confirmation vote,” she said. “There is so much good that came out of it. There is so much more good to come.”
The flawed assumption underlying both sides of the intra-conservative debate kicked off by Sohrab Ahmari
We get your holidays off. Most TV shows have a Christmas episode. I’ve heard about “the spirit of Christmas” more times than I can count. There are churches everywhere. The most-watched news network and some of the most popular websites denounce “happy holidays” while issuing fever dream warnings of Sharia law. Visit Israel or a Muslim country and you’ll see what it looks like when Christianity is culturally weak.
But that’s not the type of power culture warriors and defenders of conservative Christianity are talking about.
To get to the supposed crisis, we have to dismiss a lot of political and cultural power. Even then, examining specific instances of encroaching secular culture shows that “no longer dominant in every area, but still powerful overall” is more accurate than “under immense threat and headed for annihilation.”
The Actual Threat
There are, of course, incidents of religious Americans facing discrimination. There are also incidents of non-religious Americans facing discrimination. The question is not “do religious conservatives face any opposition?,” but whether that opposition is so powerful, and conservative Christians so weak, that the threat is existential.
Consider some of the most prominent cases:
Universities and Free Speech
David French cites a lawsuit in which he defended “a conservative Christian professor who was denied promotion because of his faith.” That’s wrong — it’s religious discrimination — and he won in court. There are many universities where no professors were denied promotion because of their religion, and others, such as Bob Jones in South Carolina, that are allowed to utilize religious criteria.
French also cites the work of the Foundation for Individual Rights in Education (FIRE), which he used to lead. I share some of their criticisms regarding campus censorship — see, for example, my article on free speech — but it hardly amounts to social conservatives’ impending annihilation.
As an example of threats to free speech on campus, FIRE maintains a database of disinvitations, in which activists tried to prevent someone they dislike from speaking. From 1998 through 2019, FIRE identifies 427 incidents. Of these, 257 cases involve protests coming from the speaker’s left (not all of which involve religion). That means an average of 11.68 cases per year over 22 years. With about 5,300 colleges and universities in the United States, about 0.2 percent see a disinvitation attempt prompted by the left in a given year.
That’s not the only illiberal activity on campus — and I think many of them deserve criticism — but an existential threat it is not.
Obamacare required health insurance plans to cover contraception, and the owners of Hobby Lobby, a privately-held chain of stores, objected. They’re conservative Christians, and argued that being forced to pay for contraceptives violated their religious freedom.
But they weren’t forced to pay for contraceptives. They compensated their employees with health insurance, and then, if the employee chose to buy contraceptives, the insurance company paid for it. Millions of employees spend their paychecks on things their employers disapprove of, but the employers can’t stop it. There’s no reason non-cash compensation should be different.
What the owners of Hobby Lobby wanted is the type of power Ahmari craves — the ability to impose religious beliefs on others. No one forced them to use contraception. No one even forced them to buy someone else’s contraception. But the possibility that employees might choose to use their health insurance for something the employers didn’t like was too much.
In a 5–4 decision, the Supreme Court ruled in favor of Hobby Lobby. As a result, if you work for a private company, and the owners are religious, they can tell you what you can and cannot do with some of your compensation.
You may be more sympathetic to Hobby Lobby’s position than I am. Either way, no existential threat here.
Gay Wedding Cakes
The 2015, 5–4 Supreme Court decision in Obergefell v. Hodges legalized same-sex marriage in the United States. That’s probably the biggest example of social conservatives losing the power to impose their beliefs on others. However, while no church has to perform a gay wedding, and no one has to attend any wedding if they don’t want to, legalization created some situations that impose on religious Americans.
Should religious wedding vendors have to sell to gay couples? It’s a fascinating question, because two fundamental rights come into conflict: equal protection for the couple; freedom of religion for the vendor. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ducked the larger question, deciding 7–2 that the Commission displayed religious animus in its treatment of Masterpiece.
For me, it comes down to what the vendor’s being asked to do. Refusing to sell a standard product — something off the shelf they’d sell to other couples — is blatant “we don’t serve your kind here” discrimination, like banning black people from the lunch counter at Woolworth’s. But if it’s a custom product — something not unreasonably called art — then the government making the vendor do it is coerced creative labor. (I tackled this in greater detail here).
The 2018 fight over Brett Kavanaugh’s conformation to the Supreme Court looms large in social conservative narratives of existential threat. For Ahmari, it’s proof they “face enemies who seek our personal destruction.” Dreher says it “radicalized” him. French agrees that it shows conservative Christians under threat, but argues that Kavanaugh’s confirmation demonstrates why the principles of classical liberalism, such as due process and presumption of innocence, are the best response. (As I said, their debate’s primarily over strategy, not the threat’s existence).
Underlying all of these claims is a staggering presumption of bad faith. Ahmari, Dreher, French and many other conservatives don’t consider the possibility that at least some of the opposition to Kavanaugh might’ve been opposition to Kavanaugh himself, not to American Christians in general.
To get there, you have to assume Christine Blasey Ford was lying, deluded, and/or put up to it, that people who say they believe her allegations of sexual assault are also lying, and that the women who poured their hearts out over their own sexual assaults were crisis actors out of Alex Jones’ imagination, or at least manipulators exaggerating how they feel because of their secret anti-Christian agenda. And you also must dismiss concerns from Americans who think Kavanaugh’s previous experience as a partisan operative isn’t a good fit for the nation’s highest supposed-to-be-impartial body.
Most importantly, you have to ignore the recent Supreme Court confirmations of Neil Gorsuch (conservative and Catholic, like Kavanaugh), Samuel Alito (conservative, Catholic), and John Roberts (conservative, Catholic), none of whom faced accusations of sexual assault. You have to concoct a story where the left wasn’t angry during Gorsuch’s nomination in 2017 — even though they were openly furious that the Senate blocked Obama’s 2016 nomination of Merrick Garland — but developed such fury over the subsequent year that they decided to invent and then pretend to care about accusations of sexual assault.
A lot of people care passionately about the Supreme Court, with many on the left strongly opposed to right-wing positions on abortion, prayer in schools, and other issues involving religion. And there’s no doubt some political operatives oppose every Supreme Court nomination from the other party and will latch onto whatever they can to fight it. But this does not add up to Christians under existential threat.
The Kavanaugh case reveals the fuzziness of the distinction between cultural and political power. According to right-wing culture warriors, winning elections is not a sign of lasting power, because it’s political, not cultural. However, nearly losing — but still winning — a Supreme Court seat is a sign of cultural weakness so menacing that Christians must adapt a crisis mentality.
Social conservatives worrying about cultural annihilation may find all the above examples unconvincing. They all involve institutional power — court rulings, Senate votes — and one of the cultural warriors’ arguments is that conservatives must do anything to hold institutional power as a bulwark against the cultural threat.
Consider, then, the case of Chick-fil-A.
In 2012, the family-owned fast food chain came under fire when the chief operating officer publicly opposed same sex marriage, and it came out that the family’s foundation donated millions to organizations fighting against legalization. In response, LGBT rights activists called for protests and a boycott..
So it went out of business, right? Or if it didn’t, it’s because a court came to the rescue?
Nope. Conservatives rallied to the restaurant’s defense. Sales rose 12% in the aftermath of the controversy, and the chain has continued expanding, growing larger than Burger King or Wendy’s. Activists fought the expansion — here’s one warning of “Chick-fil-A’s creepy infiltration of New York City” — but failed.
It’s Not a Crisis
The Chick-fil-A case encapsulates my argument. Social conservatives face motivated opponents that have some cultural power. But religious conservatives have quite a bit of cultural power too. Plus a lot of judicial and political power. Ahmari’s frame of existential danger is divorced from reality. French’s “immense threat” is overstated.
There’s no question that Christianity is weaker in the United States in the 21st century than it was in the 20th or 19th. Mainstream movies, television, and pop music often portray social conservatives negatively (if at all), and portray things social conservatives disapprove of positively. But what this all adds up to is competing in American society as a large, powerful bloc — not impending annihilation.
The slope isn’t slippery.
Conservative Christians hold the keys to statehouses, House and Senate seats, electoral votes. There’s a friendly majority on the Supreme Court, and friendly judges throughout the system. Christianity has an enduring cultural power, because it’s deeply embedded in American life, and because millions of Americans practice various versions of it every day.
The narrative that religious conservatives face cultural apocalypse is one of the most toxic in American politics. It is one of the biggest causes — not the only cause, but a big one — of zero-sum, no-compromise, fight-over-everything hyper-partisanship. Because after all, if you’re facing extermination, you have no choice.
This logic bears enough resemblance to racist theories of “white genocide” that it should give social conservatives pause.
But it’s also good for political mobilization and media consumption. And a lot of people seem to like thinking of themselves as victims. So I wouldn’t expect it to stop.
A senior administration official involved in the process said, “We’re not pulling out. We’re not pulling back. We’re still supportive. He’s still going through the White House vetting process and then he will go up to the Senate Banking Committee—if he gets through vetting process. In other words, no change. We’re sticking with Moore.”
When asked about Mr. Moore, Corey Lewandowski, Mr. Trump’s former campaign manager who remains in contact with the president, said Mr. Trump has been influenced by the fight over his last Supreme Court nominee, Brett Kavanaugh, who came under withering scrutiny for alleged sexual misconduct and heavy drinking in high school and college.
“Judge Kavanaugh is Justice Kavanaugh because this president is willing to stand up and fight for him,” Mr. Lewandowski said. “And he’s willing to do that for other people.”
The notion that a man who had exhibited no racism in 30 years should be driven from office because of a racist photo in his medical-school yearbook page would have struck our grandparents as un-Christian, un-Jewish, stupid, and mean.
“There was a brashness about him that I always associated with the Wall Street ethos,” the Rev. John Paul Wauck, an Opus Dei priest who knew McCloskey, wrote in an email. “You could say that, as a priest, he maintained an entrepreneurial attitude. For some, this was off-putting; for others, it was, I’d say, invigorating and even entertaining.”
McCloskey harnessed that entrepreneurial spirit to persuade people, mostly men, to become Catholics. In New York in 1997, he converted Kudlow, who was recovering from addiction. Mark Belnick, a former general counsel of Tyco International, who described McCloskey as a “great friend” in a New York magazine article, soon followed. They would be among the first in a long line of high-profile conversions that McCloskey facilitated.
“It’s just like the brokerage business or any business of sales,” McCloskey told the National Catholic Reporter in 2003. “You get a reputation, you deal with one person and they mention you to another person . . . and all of a sudden you have a string of people.”
The conversions came naturally to McCloskey because “he just had an absolute certainty about what he was proposing, and he had no hesitation at all about unapologetically offering Catholicism as an option,” said Shaw, his co-author.
.. Although he left Washington at perhaps the height of his fame, McCloskey’s legacy is the ongoing influence of the Catholic Information Center. The center’s board includes Leonard Leo, executive vice president of the Federalist Society, which helped shepherd the Supreme Court nominations of Brett M. Kavanaugh and Neil M. Gorsuch. White House counsel Pat Cipollone is a former board member, as is William P. Barr, who served as attorney general under President George H.W. Bush and is now President Trump’s nominee for the same position.
.. The small center — its members and its leaders — continue to have an outsize impact on policy and politics. It is the conservative spiritual and intellectual center that McCloskey had imagined and its influence is felt in all of Washington’s corridors of power.