Eleventh International Conference on Religion & Spirituality in Society

Abstract

Christian conservatives have been a key part of the larger conservative legal movement in the U.S., which has been ascendant in recent years. President Trump’s judicial appointments hold out the promise of conservative legal victories far into the future, no matter what happens in the 2020 election. But on the cusp of this generational legal shift, questions arise concerning the potentially contradictory aims of secular and religious conservatives. At least on the surface, U.S. secular judicial conservatism owes much of its political success to its embrace of judicial restraint, including respect for stare decisis and an originalist jurisprudence. This positivist-formalist philosophy rejects a values-enforcing judicial role in favor of neutral legal interpretation. Christian judicial conservatism, by contrast, has a more values-based agenda. On issues ranging from abortion to religious liberty to gay rights, these activists urge courts to favor their vision of Christian social norms and overturn longstanding precedents that run contrary to those norms. Using legal, historical, and jurisprudential evidence, this paper explores the seemingly contradictory aims of secular and Christian judicial conservatives. While positivist judicial restraint has been the dominant public face of American judicial conservatism, there has always been a strong minority of conservatives (both secular and Christian) embracing substantive judicial policy making to restore “real” American constitutional values. The alliance of the Christian right with the Trump wing of the Republican party, however, may be moving judicial conservatism decisively away from judicial restraint and toward judicial activism for the first time in a century.