Jeffery J. Ventrella, J.D., Ph.D. is Senior Counsel and Senior Vice President of Academic Affairs & Training for the Alliance Defending Freedom and CCL’s Distinguished Fellow of Law and Culture.
Since the philosophical complexion of the Court has changed since the confirmation of the three Trump appointees, is the Court likely to take up cases it otherwise wouldn’t? How will this changed philosophical complexion alter the direction of the Court?
The Court accepts only a fraction of the cases for which review is sought. Many factors contribute to the Court’s decision to review a matter, aside from the Court’s philosophical make up: what’s the Court’s current work load, does the matter provide a suitable “vehicle” for addressing an issue, are the lower courts split as to the particular issue, is the issue of significant national and constitutional interest, et al. How particular justices interpret the Constitution or an implicated statute, that is, their judicial philosophy, says nothing regarding these factors.
Moreover, it takes four votes to grant review, yet often for prudential reasons, justices interested in granting review will not vote to do so unless they believe they would garner a fifth vote on the matter — in other words, if the appeal would only reinforce what the four think is “bad law,” then granting review is counterproductive. That said, the individual justices’ philosophical make-up can “nudge” the Court to examine fresh areas like religious liberty and life and these areas or interest are often signaled in the certain justices’ dissenting or concurring opinions. One example of this is in the COVID-19 church shutdown cases. The Supreme Court had repeatedly denied review in cases until new justices were confirmed to the Court.
The Dobbs case (Mississippi) has the potential to overturn Roe v Wade. What are the chances of that happening?
While there are no crystal balls for predicting what will happen and overruling a prior decision is a high bar given the power of precedent, in this case, the acknowledged lack of any constitutional justification from both Left and Right legal scholars should boost the chances of overrulingRoe, and the oral argument contained several encouraging interactions with the justices that align with overruling Roe. Here, the Court should prefer “right” to “decided.”
From a conservative Christian standpoint, what is the state of mainstream legal training in the U. S.?
Legal education today is a trade school imparting some basic analytic and practical skills, but it is also often an indoctrination device that precludes serious thought and discussion about the bigger “why” questions concerning law’s nature, the constitution’s underlying worldview, text, structure, and history, and its object, the human person and his flourishing. Until we get “human” right, we will never get “human rights” right.
The jurisprudence or theory of law underpinning legal education is latent, but powerful and flows not from a fidelity to the democratically enacted text of statutes or our Constitution nor an objective moral tradition like natural law or related concepts, but from legal positivism, legal realism, critical legal studies, and critical race theory. Rarely, are these driving forces acknowledged, let alone examined, and instead, they are merely assumed.
In fact, non-Christian scholar, Roger Cramton, decades ago called legal education in America a “religion,” this “religion” has only gotten more radical and bold since Cramton penned this article in 1978.
What are some of the cases ADF is arguing and what are some of your recent victories?
303 Creative – The Supreme Court recently granted review in 303 Creative, an important case that will determine whether a state under the guise of nondiscrimination laws can force creative professionals to speak contrary to their sincerely held religious convictions. The free speech rights of all people who wish to run their businesses in line with their faith are implicated.
Bethel Ministries v. Salmon: On December 10, the district court granted summary judgment in Bethel’s favor, ruling that Maryland violated the school’s free speech rights when it revoked the school’s eligibility to participate in a voucher program based on its religious beliefs.