By: James Gottry
President Trump announced that Judge Neil Gorsuch is his nominee to fill the seat left vacant after the death of Justice Antonin Scalia. If Judge Gorsuch is confirmed, the Court will have a full complement of nine justices for the first time in nearly a year.
It also could come in time for a full Court to hear Trinity Lutheran Church of Columbia v. Pauley when it is argued this spring. ADF represents Trinity Lutheran in the case; it is the only religious liberty case before the Court this term and is already being hailed as “one for the history books.”
Trinity Lutheran is just the latest example of the important role Alliance Defending Freedom has played at the nation’s highest court since its launch in 1994.
During the 2015-16 term alone, the Court heard three ADF-supported cases. And since 2014, ADF has been a part of seven victories at the Supreme Court, bringing our total to 49 wins in only 23 years.
To put this in context, roughly 7,000-8,000 cases on a host of issues are submitted to the Supreme Court each year, and the Court accepts about 1% of those cases (75 to 80 cases). In contrast, and evidencing the importance of the work of ADF, since the founding of ADF, the Supreme Court has accepted approximately 33% of the ADF-supported cases submitted.
This of course provokes important questions:
- How does ADF get so many cases before the Court?
- What do the cases that ADF brings before the Court accomplish for religious freedom?
A recent research paper by Adam Feldman and Alexander Kappner provides some helpful analysis to answer that question. The authors studied the cases put before the Supreme Court between the 2001 and 2015 terms and sought to answer the question of “what makes a petition more or less likely to be granted?” In regard to law firms, Feldman and Kappner made several observations, including:
Firms with the Most Associated Amicus Briefs
The authors stated that “[a]micus involvement in cases . . . can serve as an indicator of an attorney or firm’s prominence.”
ADF was among the top 20 law firms in this category, joining top firms like Sidley Austin, Bancroft, Kirkland & Ellis, and others. The authors noted that while “the majority of these are large, private law firms with specialized Supreme Court practices,” there were “a few outliers from this norm that are still highly touted for their Supreme Court litigation experience.” That list included ADF, a “rights advocating group with [a] strong Supreme Court presence.”
Petitioning Firms’ Associate Amicus Briefs Per-Case
The authors also examined how many amicus briefs were filed in support of a firm’s petitions for cert. Here, ADF finished second, behind only Bancroft PLLC, Paul Clement’s prestigious (former) firm, and ahead of other prominent law firms such as Gibson, Dunn & Crutcher, Latham & Watkins, and Jones Day, as well as entities such as the Stanford Law School Supreme Court Litigation Clinic. This demonstrates that ADF is distinguished in its ability to gather support for its positions before the Supreme Court.
Firms with the Most Successful Cert Petitions (2012-2015)
Once again, ADF was ranked among the top law firms in the country, with the 10th most successful cert petitions between 2012-2015, ahead of firms such as Baker Botts and entities including University of Virginia School of Law Supreme Court Clinic.
Success Rate of Law Firms with Most Successful Cert Petitions (2012-2015)
Here, the authors examined the cert grant rates for the firms listed in the figure above. ADF was 11th on this list, ahead of prominent firms such as Bancroft and Kirkland & Ellis. This demonstrates, again, that when ADF files a petition with the Court, it is among the best in the country at persuading the Court to hear the case.
The above provides some of the reasons for how ADF is successful at the Supreme Court, though it does not address the elements outside the scope of the article. Factors including the strategic coordination with hundreds of allied attorneys and organizations; the training ADF offers to university students, law students, and both young and experienced advocates throughout the country and internationally; and the funding we provide to enable allied attorneys and organizations to bring cases that create circuit splits or otherwise draw the High Court’s attention. Of course, none of this would be possible without the prayerful financial support of ADF ministry friends.
During the most recent time period addressed in the research, 2012-2015, ADF has been a part of many successful cert petitions, many of which resulted in nation-shaping victories, including:
Town of Greece v. Galloway (2014)
The U.S. Supreme Court ruled that Americans are free to pray according to their own beliefs at public meetings. According to one Breitbart analyst, this was “arguably the biggest legal victory for religious liberty in 31 years.”
McCullen v. Coakley (2014)
The U.S. Supreme Court unanimously struck down a Massachusetts law that created a 35-foot “buffer zone” restricting pro-life advocates from speaking with people entering abortion facilities. This ruling makes it easier for pro-life counselors, like Eleanor McCullen, to do their life-saving work.
Conestoga Wood Specialties v. Burwell (2014)
The U.S. Supreme Court ruled against the Obama Administration’s abortion pill mandate in favor of two family run businesses, Conestoga Wood Specialties and Hobby Lobby (Burwell v. Hobby Lobby). The ruling means that families do not have to surrender their religious freedom in order to remain in business.
SBA List v. Driehaus (2014)
The U.S. Supreme Court upheld the freedom of Americans to speak by allowing a challenge to laws used to silence pro-life commentary on the record of an elected official.
Reed v. Gilbert (2015)
The U.S. Supreme Court ruled that the Town of Gilbert’s sign code was facially unconstitutional and that it discriminated against the content of Good News Community Church’s signs when the town’s regulation allowed political, ideological, and homeowner association signs to be larger in size and remain up longer than the church’s temporary signs inviting others to its services. Congregations throughout the country can now communicate to the public on the same terms as other organizations, political parties, or businesses.
Geneva College v. Burwell & Southern Nazarene v, Burwell (2016)
The Supreme Court unanimously ruled to send the consolidated abortion-pill mandate cases back to the lower courts, stating the courts should allow the parties “to arrive at an approach going forward that accommodates petitioners’ religious exercise.”
Trinity Lutheran Church v. Pauley (2016-2017)
This case will likely be argued before the Court in the spring of 2017, and has the potential to clarify a vitally important principle: a state constitution may not be interpreted to justify targeted hostility against churches and other religious organizations.
As the above cases demonstrate, ADF is an established and respected player at the Supreme Court, and the cases supported by ADF have significant implications for religious freedom, the sanctity of life, and marriage and the family.
Coming Up at the Supreme Court
It is likely that this spring, ADF attorneys will be arguing the case of Trinity Lutheran Church of Columbia v. Pauley before the Supreme Court. If he is confirmed, Judge Gorsuch could play a key role in the decision. Keep an eye on the blog for more information about this important case, and please be praying for our attorneys as they prepare.