Supreme discontent

Two religious liberty cases have sparked an internal war among conservatives over Judge William H. Pryor Jr., a leading candidate to replace late Justice Antonin Scalia on the U.S. Supreme Court.

President-elect Donald Trump named Pryor, a judge on the 11th U.S. Circuit Court of Appeals, during a primary debate last February. Trump included him on a subsequent list—recommended by The Federalist Society and The Heritage Foundation—he promised to use to select Supreme Court justices. Conservative observers widely praised the potential Pryor pick, citing both his judicial record and 2003 Senate confirmation testimony where he called Roe v. Wade “the worst abomination in the history of constitutional law.”

No notable resistance to anyone on Trump’s list developed until after the election. Word of two 2011 religious liberty cases involving Pryor began rippling through the Federalist Society convention and a separate meeting of several hundred conservative leaders in mid-November. Since then some conservative legal experts and evangelical leaders, including Focus on the Family founder James Dobson and Family Research Council President Tony Perkins, have circulated their persistent concerns about Pryor.

“Pryor may be 90 percent good on his decisions, but that is not good enough,” Tim Wildmon, president of the American Family Association, told me in an email. “We need someone who will be just like Scalia, 100 percent, in terms of their judicial philosophy."

One of the cases, Keeton v. Anderson-Wiley, involved a Christian counseling student whom a state college expelled after she refused to agree to remediation measures (such as attending a gay pride parade) intended to change her views on homosexuality. A three-judge panel including Pryor ruled the school did not discriminate against the student, in part because the school would treat anyone with her beliefs the same way.

More problematic, critics say, is the majority opinion in Glenn v. Brumby, a case involving a biological male fired after he said he wanted to dress as a woman and begin medical treatments. Pryor again concurred with the circuit court’s liberal former Judge Rosemary Barkett, ruling the Equal Protection Clause of the U.S. Constitution protected the employee from discrimination based on sex—which the court interpreted to include gender identity. Slate writer Mark Joseph Stern called the opinion “absolutely revolutionary” for transgender employment rights.

Various Obama administration agencies, including the Departments of Justice, Labor, and Education, began citing Glenn as their justification for advancing transgender litigation and regulations.

Pryor’s defenders say he was only adhering to applicable precedents and note he did not write either of the opinions in question. Critics argue Pryor joined the decisions in full, without disagreement, and say Glenn established a new precedent. Phillip Jauregui, president of Judicial Action Group, said the Glenn decision primarily used a case, Price Waterhouse v. Hopkins, that was about traditional gender norms, not transgender rights.

“The woman in Price Waterhouse never said she was a man, never tried to use a men’s restroom, and never demanded that her colleagues refer to her as a man,” Jauregui told me. “The only way to get from Price Waterhouse to Glenn is judicial activism.”

The debate over Pryor has unfolded quietly, because those who recently discovered the cases assumed Trump, Vice President-elect Mike Pence, and their advisers didn’t know about them either. But privately voiced concerns have not taken Pryor out of consideration, even as the controversy has become a hot topic of conversation in Trump’s inner circle.

Trump met with Pryor on Jan. 14 in one of a handful of private meetings he conducted with potential Supreme Court nominees the same weekend. He said he plans to make a decision “within about two weeks” of his inauguration.

Trump campaigned hard on the importance of the next Supreme Court nomination, particularly in his pitches to evangelicals, who consistently cited it as a top election issue.

Pryor, who succeeded attorney general nominee Jeff Sessions as Alabama attorney general in 1997, retains many influential backers, including The Heritage Foundation, The Federalist Society, and the Judicial Crisis Network, a conservative organization seeking to put conservative justices on the Supreme Court. Carrie Severino, Judicial Crisis Network’s chief counsel and policy director, told me she’s aware of Pryor’s controversial cases but doesn’t think they disqualify him: “Everyone on any list is going to have some decisions you disagree with. … We’re happy to support anyone on [Trump’s] list.”

Most Pryor critics remain reluctant to oppose him publicly, but Judicial Action Group did so in mid-January. The organization released a legal analysis arguing the two 2011 cases disqualify him: “Glenn is better evidence of Pryor’s judicial philosophy than endorsements from conservatives and opposition from liberals. History proves the ‘endorsement/opposition factor’ to be woefully unreliable, as it contributed to the process that gave us Justices David Souter, Sandra Day O’Connor, and Anthony Kennedy.”