Notre Dame law school’s growing influence on the Supreme Court

SOUTH BEND, Ind. — Tucked within a Gothic-style building on campus in this small town is a Catholic institution increasingly exerting conservative influence on the Supreme Court: the University of Notre Dame Law School.

The school counts among its former faculty Justice Amy Coney Barrett, who swapped the faux-medieval halls of one institution for the neoclassical marble columns of another in helping form the 6-3 conservative majority on the court.

In a trend that started before Barrett's appointment but has accelerated since, the school is now having success placing both students and professors in prestigious Supreme Court clerkships. The clerks serve one-year terms and play a low-profile but crucial role in advising their bosses on which cases to take up and how to rule on them. They do research, help craft decisions and serve as sounding boards for the justices.

The nation's elite law schools — particularly Harvard and Yale — have dominated filling clerkships at the Supreme Court and educating the lawyers who went on to be nominated to the court for decades. In the competition for students and prestige, law schools have worked to propel their students into clerk jobs. Conservative criticism of academia, particularly targeting the nation's elite universities, has grown, presenting an opening for more conservative-minded schools to gain prominence with a more conservative court.

Hiring clerks from law schools steeped in the prevailing conservative thinking known as originalism — a philosophy often frowned upon in more liberal-leaning law schools — ensures that the justices who hire them have like-minded aides who have been armed by their professors with novel legal approaches on the most pressing issues. Originalist theories have underpinned some of the court's biggest rulings in recent years, including the decision that overturned abortion rights landmark Roe v. Wade and others that have controversially expanded the right to own firearms.

The relationship produced by Notre Dame faculty helps seed conservative legal theories. Professors are also involved in crafting litigation that can make its way before the court dealing with causes that are popular on the right, such as those encompassed by the term "religious liberty."

Several Notre Dame professors, for example, filed briefs in the Dobbs v. Jackson Women's Health Organization case urging the justices to overturn Roe. One of those briefs, filed by a retired Notre Dame professor, John Finnis, was cited by conservative Justice Samuel Alito in the 2022 ruling. Separately, the school's religious liberty clinic has cases before the high court, including one pending appeal urging the justices to endorse a taxpayer-funded Catholic charter school in Oklahoma in a direct challenge to the separation of church and state.

The exchange goes both ways. Justices, mostly conservatives but at times liberals too, have become frequent visitors and guest lecturers at the school, which prides itself on being a safe space for conservatives. Within the last two years, Barrett and fellow conservative Brett Kavanaugh have both been on campus, as has liberal Justice Elena Kagan.

It is not unusual for law schools to have personal connections with justices. Kagan, for example, previously served as dean of Harvard Law School. Several justices regularly teach classes at different law schools.

The school has become "a bastion for conservative Catholic principles," said Marci Hamilton, a former Supreme Court law clerk for the late Justice Sandra Day O'Connor and a professor who studies religion at the University of Pennsylvania.

'Doesn't openly discriminate' On a recent late-summer day, all eyes in South Bend were focused on the upcoming home game of the storied Notre Dame football team, with groundskeepers on the campus north of the city steadily at work before thousands of Fighting Irish fans descended from around the country. Members of the football team could be seen jogging to the practice facility while other students headed to class.

The law school building is just yards from the golden-domed administrative building and the Basilica of the Sacred Heart Church, two centerpieces of the campus along with the iconic football stadium.

Seated in his book-lined study on the second floor, the law school's dean, G. Marcus Cole, alternated between pride at recent achievements and indignation at the idea that the faculty skews disproportionately to the right. The problem, he said, is that most law schools lean heavily to the left and do not reflect America as a whole.

"Half the American people could be characterized as conservative. Half the legal profession can be characterized as conservative. In fact, there's nothing wrong with being conservative. It's normal. It's normal everywhere except for in the legal academy," he said.

At some other law schools "it is a badge of dishonor" to have any conservatives on the faculty, which does not serve students well, he added.

Among the Notre Dame faculty are well-connected conservative husband and wife duo Richard and Nicole Garnett; O. Carter Snead, known for his scholarship opposing abortion rights; and William Kelley, who clerked for the late conservative Justice Antonin Scalia and served in the administration of President George W. Bush. Several other professors clerked for conservative justices.

"I'm happy that we're one of the few law schools in America that doesn't openly discriminate against conservatives," Cole said.

He also expressed pride in Barrett's achievements. He was among a Notre Dame delegation that was present at a celebratory Rose Garden event at the White House when then-President Donald Trump announced her nomination amid the Covid-19 pandemic just before the 2020 election.

Opinions vary on just how conservative-leaning the law school is, with current faculty and some students saying it is ideologically diverse and some former professors and students saying there is a clear tilt to the right.

Mark McKenna, a former Notre Dame Law School professor now at the UCLA School of Law in California, said he saw a clear shift to the right during his time there from 2008 to 2021. He says he left in part because he found his own liberal views to be out of step with the views of his colleagues.

The school's success in securing clerkships with conservative justices and prominent lower court judges will only serve to deepen that reputation, with conservative students eager to benefit and get a head-start in their legal careers, he said.

"This is definitely going to make Notre Dame a sustaining feature of the Federalist Society infrastructure," McKenna added, in reference to the conservative legal group that has become a key incubator for future judges and Supreme Court justices.

Annie Ortega, a third-year student who recently took a weeklong class taught by Barrett, praised the "ideologically diverse" school. She is president of the school's chapter of the Federalist Society but said she has lively conversations with her many liberal friends at the school.

"Going to a law school where I was going to hear both sides of the conversation was really important, and is something that I found to be true in my class," she added.

Joshua Mannery, a recent graduate who leans liberal and served as president of the student bar association, said that while he did not feel excluded, "I do think anybody who says it's more conservative is not wrong in saying that."

'Cream of the crop' Each of the nine Supreme Court justices hires four clerks a year. It is considered the most prestigious post a recent law school graduate can obtain.

"These are considered the cream of the crop, the best in the legal profession," said Aliza Shatzman, president of the Legal Accountability Project, a group she formed to help improve transparency in the clerkship process amid concerns about workplace bullying and harassment.

During the year, the clerks work on all the biggest cases before the court on issues like abortion, guns, voting rights and LGBTQ rights. Once the clerkship is completed, the clerks are in high demand in the legal profession, with big law firms offering eye-popping signing bonuses . Many clerks go on to high-profile careers, whether in corporate law, academia or in some cases politics. Later in their careers, they are often earmarked as potential judicial appointees. Of the current nine justices, six clerked at the court, as have several prominent senators, including Republicans Ted Cruz, R-Texas, and Josh Hawley, R-Mo.

In the coming nine-month term that officially starts on Monday, two recent Notre Dame Law School graduates, Kari Lorentson and Elizabeth Totzke, are both clerking for Barrett. And two law professors from the school, Christian Burset and Patrick Reidy, the latter of whom is a Catholic priest, are clerking for justices Neil Gorsuch and Kavanaugh, respectively.

They are following in the footsteps of four other Notre Dame graduates who clerked at the high court in the last five years, all for conservative justices. Two other Notre Dame professors also clerked at the Supreme Court in recent years, both with Gorsuch, who appears to sometimes favor hiring academics to work for him.

In an appearance at Notre Dame last year, Kavanaugh spoke about what he looks for in his clerks.

"It's got to be people who are comfortable with my general approach," Kavanaugh said. "I have had two spectacular Notre Dame law clerks. They just worked so hard."

Nicole Garnett, a longtime Notre Dame professor who clerked for conservative Justice Clarence Thomas and is a longtime friend of Barrett's , chairs the school's clerkship committee. In an interview, she downplayed connections with the conservative justices.

"I think that drawing any conclusions about Supreme Court clerkships is probably a category error because it's such a needle-in-a-haystack, lightning-strike kind of thing," she said.

In 2023, Notre Dame was ranked fourth in the country at placing students in clerkships at all levels of the court system. Overall, Notre Dame ranked 20th in the most recent U.S. News & World Report law school rankings.

The traditional elite law schools dominate Supreme Court clerkships, with many justices hiring clerks from the same law schools they themselves attended and maintaining close links with faculty members. About two-thirds of clerks come from five schools: Harvard, Yale, Stanford, Columbia and the University of Chicago. Barrett, who graduated from Notre Dame Law School, is the only member of the current court not to have a law degree from Harvard or Yale.

Within that context, Notre Dame is scrapping with other law schools for the remaining clerkships and has performed well. In the last five years, more graduates of Notre Dame Law School have been clerking at the high court than from many other high-ranking law schools, including Duke University, the University of Pennsylvania and Columbia University. Another conservative-aligned law school that is making inroads is George Mason University's Antonin Scalia Law School in Virginia, which has also placed some graduates in Supreme Court clerkships.

While Supreme Court clerkships are the most sought-after, similar roles with federal appeals court judges are also important, in part because many people who later obtain clerkships at the high court have previously worked for a lower court judge.

Notre Dame is making inroads on that front too. Of the most recent graduating class of 187 students, about 20% moved on to clerkships of some type.

'I'm Catholic' During an appearance at a Federalist Society event in Washington last year, Barrett was asked what attracted her to Notre Dame.

"I'm a little bit hesitant to bring this up," Barrett said. "I'm not sure if you know, but I'm Catholic."

The audience of conservative lawyers laughed knowingly. Barrett's Catholic faith was much-discussed when Trump appointed her to the high court in 2020 especially as it relates to abortion, which the Catholic Church opposes. Two years later, she was part of the majority that voted to overturn Roe.

Barrett, who at the same event praised Notre Dame for its "support for faith and family" and "fantastic faculty colleagues," is not the only Catholic justice. Of the current nine justices, Kagan, who is Jewish, and Justice Ketanji Brown Jackson, who is Protestant, are the only ones who were not raised Catholic.

In his recent Notre Dame appearance, Kavanaugh praised the "Catholic tradition of service to others" that the university as a whole embodies.

"A lot of what I learned in the Catholic school still informs — not my jurisprudence, so I don't want to confuse the issue, not my jurisprudence — but just how I try to treat other people and how I think of my role in public service," he said.

Both Kavanaugh and Barrett declined via a court spokeswoman to comment further on the law school's growing influence.

Justices are not required to step aside from cases based purely on their religious beliefs, just as there is no religious test for anyone who serves as a justice.

Greg Lipper, a lawyer who previously worked for Americans United for the Separation of Church and State, a group that advocates against religion in public life, said the professional and personal ties that some justices have with Notre Dame are similar to those that all judges have based on their experiences before taking the bench.

Hamilton, the University of Pennsylvania professor, said the Notre Dame Law School reflects a "growing cadre" of conservative Catholics in public life.

That movement has had its greatest success in the legal arena, thanks in part to the efforts of Leonard Leo, the legal activist and conservative Catholic who advised Trump and other Republican presidents on Supreme Court appointments. When Thomas visited Notre Dame in 2021, he spoke at the university's Center for Citizenship and Constitutional Government, which receives funding from the Napa Institute, a Catholic group that Leo is associated with .

"The money-powered Catholic right should be troubling to a lot of Americans," Hamilton said.

The church's teachings inform the school's religious liberty clinic, founded during Cole's tenure, which is actively involved in cases around the country that could reach the Supreme Court. The current court is solicitous of religious claims as shown in recent rulings, including a series of decisions that have eroded the separation of church and state.

The clinic came under scrutiny two years ago when it paid for Alito to travel to Rome for a religious liberty summit it organizes every year. Alito made headlines by delivering a speech in which he mocked foreign leaders who had criticized the Supreme Court's decision to curb abortion rights. Alito contended at the time that the trip was separate from the clinic.

The justices are due to consider in the coming months whether to take up the clinic's case on Oklahoma's attempt to use state funds to open a Catholic school, the nation's first religious public charter school. The Oklahoma Supreme Court ruled that the plan was unconstitutional.