“[Rips] clearly has a very high IQ. Yet he also has humanity, humor and the gift of a limpid, agile, unpretentious prose style.” — Wall Street Journal

“[A] brilliant lawyer.” —Kurt Andersen

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About the Book

Following the death of Justice Ruth Bader Ginsburg and with the presidential election weeks away, Donald Trump had the opportunity to place a new justice on the Supreme Court. Attempting to stabilize his eroding support among white evangelicals, he handed over the selection of the nominee to a small group of evangelical leaders. In doing so, he breached the religious test clause of the Constitution. A chief authority on the religious test clause, and one whose interpretation of that clause requires a finding that Trump’s actions violated the Constitution, is none other than Amy Coney Barrett.

This concise, vital book explores the origins and importance of the test clause and makes the argument that an injunction to prevent Barrett from taking office or serving on the Court should be issued straightaway, while the courts, and the nation, resolve a critical constitutional issue.

104 pages • Paperback ISBN 978-1-68219-405-8 • E-book 978-1-68219-249-8

About the Author

Michael Rips author photo

Photo © Ric Ocasek

Michael Rips clerked for Supreme Court Justice William Brennan and Judge Henry Politz of the Fifth Circuit Court of Appeals; he writes and lectures on constitutional law and has practiced constitutional appellate litigation, including landmark cases before the Supreme Court. He is the author of three volumes of memoir: The Golden Flea, The Face of a Naked Lady and Pasquale’s Nose.

Read an Excerpt

The Selection of Amy Coney Barrett as a Supreme Court Nominee

By the late 1970s, white evangelical voters, uneasy about the desegregation of schools, rising immigration, legislation limiting gun rights, growing recognition of gay rights, and the expanding number of legal abortions following Roe v. Wade as well as federal funding of abortions, became increasingly involved in politics and especially the Republican party. According to The Brookings Institute, by 2014 one in four American adults claimed they belonged to an evangelical group, with white evangelicals identifying overwhelmingly with the Republican Party.

Polling done after the 2016 election showed that 80% of evangelical Christians voted for Trump. This exceeded the numbers achieved by either Ronald Reagan or the self-identifying evangelical George W. Bush. Political commentators attributed this to Trump’s aggressive advocacy of the agenda of white evangelicals: support for Israel (including, recognizing Jerusalem as the capital of Israel) and opposition to immigration, affirmative action, reproductive rights, LGBT rights, and tax statutes which, in the opinion of white evangelicals, discriminated against religious organizations. At Liberty University in 2016, Trump announced “We’re going to protect Christianity.”

Following his election, Trump continued to solicit the support of the white evangelical community. Trump initiated and met with an evangelical advisory board (as opposed to previous campaigns who created ecumenical or interfaith advisory boards), who advised Trump and the White House staff on issues including taxes, health care and judicial appointments. In 2018, Trump hosted a dinner at the White House for one hundred of the nation’s top evangelical leaders. At that dinner, Trump delivered a speech affirming his commitment to evangelicals: “As you know, in recent years, the government tried to undermine religious freedom. But the attacks on communities of faith are over. We’ve ended it. We’ve ended it.”

Despite his efforts as president on behalf of the evangelical community, as Trump neared the 2020 election, he and his advisors were made aware, based on polling data and other indicators, that his support in the evangelical community was eroding. The Public Religion Research Institute (PRRI) noted that though at the beginning of March of 2020 around 80% of white evangelicals approved of Trump, by May that figure had dropped to 62%. This was especially concerning for the Trump campaign since it was perceived that the evangelical vote could make a difference in the swing states of Michigan, Pennsylvania and Wisconsin, which Trump won in 2016, but where he has been polling even with or behind Biden.

Not only has his popularity in the evangelical community dropped, but so too his support among Catholics. The same PRRI poll found that among white Catholics, Trump’s approval rating dropped by 27 points. Vote Common Good, a Christian organization, found that in battleground states, Florida, Pennsylvania, Wisconsin, North Carolina and Michigan, there was an 11% swing in white evangelical and Catholic votes from Trump to Biden. Additionally, 8% of evangelicals who didn’t vote at all in the 2016 election said they now backed Biden.

The decline in Trump’s support among white evangelicals caused those involved in the Trump reelection campaign to give renewed focus to the evangelical community in an effort to retain and expand the evangelical vote he had received in 2016. At the beginning of this year, the Trump campaign launched what it referred to as the “Evangelicals for Trump” coalition at a rally at a Miami church. At that rally, Trump spoke at length about the number of conservative federal judges his administration had placed on the courts.

As the election has drawn closer, Trump’s religious rhetoric has magnified.

In his campaign appearances, Trump has repeatedly denounced Biden’s religious values, claiming that if elected Biden will, “take away your guns, destroy your Second Amendment, no religion, no anything, hurt the Bible, hurt God.” Despite Trump’s efforts to engage his base and defame his opponent, his popularity among evangelical voters has continued to decline.

With a vacancy on the Supreme Court came an opportunity to activate the vote of the evangelical community before the election. Though the names of the potential nominees were not released until after Justice Ruth Bader Ginsburg’s death, a shortlist had been circulating for months before, all to expedite the process if Justice Ginsburg died before the November election. While Barrett was on the list, Trump was initially drawn to a different name—Judge Barbara Lagoa, who, as a Cuban-American born in Florida, led Trump to speculate on the possibility that her appointment would help him secure Florida in the November election. Several top advisors to President Trump supported Lagoa’s nomination, owing to the perceived advantage it would give Trump in Florida but also as a means of increasing Catholic votes nationwide.

On Friday evening, September 18th, 2020, Justice Ruth Bader Ginsburg died. Despite his initial preference for Lagoa, on Monday, September 21st, Trump emerged from a series of meetings with evangelical leaders in full support of another candidate.

Marjorie Dannenfelser, an evangelical leader of the anti-abortion rights group Susan B. Anthony List, and the evangelical leader Tony Perkins of the pro-life Family Research Council, individually spoke with President Trump. In those meetings, Dannenfelser and Perkins each made it clear who they wanted for their next justice—Amy Coney Barrett.

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