American Family Association Action (AFA Action), is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association (AFA).
Judge on the U.S. Court of Appeals for the Eleventh Circuit
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We have been unable to identify evidence that Judge Grant is outspoken about her faith and worldview.
In her Senate Questionnaire, Grant stated that she was a member of First Baptist Church of the City of Washington, DC from 2001 to 2012,[1] the church that President Jimmy Carter attended while he was in the White House.[2] From 2010 to 2012, Grant was a deacon at this church.[3] There are reports that the former pastor on staff during the time that Grant attended “welcom[ed] openly gay members,”[4] rather than encouraging them to follow the Biblical command to “flee from sexual immorality.” The pastor served from 2009 until 2013 (the last 4 years that Grant was member, and during the time that she was a deacon).[5] The pastor left the church in 2013.[6]
Judge Grant is married and has 3 children.[7]
[1] S. Questionnaire p. 6. Link here.
[2] President Carter & FBC, The First Baptist Church of the City of Washington D.C., https://www.firstbaptistdc.org/carter.
[3] S. Questionnaire p. 4. Link here.
[4] Hamil R. Harris & Michelle Boorstein, At D.C.’S First Baptist Church, A Dismal Parting With Its First Black Pastor, The Washington Post (May 1, 2013), https://www.washingtonpost.com/local/at-dcs-first-baptist-church-a-dismal-parting-with-its-first-black-pastor/2013/05/01/9397e352-b280-11e2-9a98-4be1688d7d84_story.html.
[5] Hamil R. Harris & Michelle Boorstein, At D.C.’S First Baptist Church, A Dismal Parting With Its First Black Pastor, The Washington Post (May 1, 2013), https://www.washingtonpost.com/local/at-dcs-first-baptist-church-a-dismal-parting-with-its-first-black-pastor/2013/05/01/9397e352-b280-11e2-9a98-4be1688d7d84_story.html.
[6] Hamil R. Harris & Michelle Boorstein, At D.C.’S First Baptist Church, A Dismal Parting With Its First Black Pastor, The Washington Post (May 1, 2013), https://www.washingtonpost.com/local/at-dcs-first-baptist-church-a-dismal-parting-with-its-first-black-pastor/2013/05/01/9397e352-b280-11e2-9a98-4be1688d7d84_story.html.
[7] Carrie Campbell Severino, Who is Justice Britt Grant?, National Review (Nov. 17, 2017), https://www.nationalreview.com/bench-memos/who-justice-britt-grant/.
Judge Grant wrote that separation of powers is “established” and “demanded” by the constitution.[8] In Arias Leiva v. Warden, Grant argues that the judicial branch “cannot second-guess that political judgment call or indulge whatever our own views on the matter may be.” [9]
In the majority opinion in the case Lamirand v. Fay Servicing, Judge Grant wrote that, while one of the duties of a court is to resolve conflicts between statutes enacted by Congress, that duty “is not a license to ignore laws that Congress has crafted.”[10] Grant explains in her opinion that a statute does not displace another statute simply because they both regulate similar conduct. Instead, “a statute may only displace another when the two clearly conflict.”[11]
Judge Grant wrote in the majority opinion in Georgia v. President of the U.S. that President Biden’s executive order mandating federal contractors ensure their employees are fully vaccinated “likely exceeded the scope of the president’s authority.”[12]
[8] Arias Leiva v. Warden, 928 F.3d 1281, 1283 (11th Cir. 2019) https://law.justia.com/cases/federal/appellate-courts/ca11/18-14328/18-14328-2019-07-08.html.
[9] Arias Leiva v. Warden, 928 F.3d 1281, 1292 (11th Cir. 2019) https://law.justia.com/cases/federal/appellate-courts/ca11/18-14328/18-14328-2019-07-08.html.
[10] Lamirand v. Fay Servicing, LLC, 38 F.4th 976, 978 (11th Cir. 2022) https://law.justia.com/cases/federal/appellate-courts/ca11/20-14286/20-14286-2022-07-01.html (emphasis added).
[11] Lamirand v. Fay Servicing, LLC, 38 F.4th 976, 978 (11th Cir. 2022) https://law.justia.com/cases/federal/appellate-courts/ca11/20-14286/20-14286-2022-07-01.html.
[12] Georgia v. President of the United States, 46 F.4th 1283, 1297 (11th Cir. 2022). https://law.justia.com/cases/federal/appellate-courts/ca11/21-14269/21-14269-2022-08-26.html.
Grant spoke at a school chapel service during her time as a Georgia Supreme Court Justice. The school is not particularly faith-based. Judge Grant discussed her career path, but there is no record of her discussing her faith (or faith in general).[13]
Judge Grant worked in President George W. Bush’s administration for the USA Freedom Corps, a group that oversaw advocacy for faith-based organizations.[14]
[13] Marissa Joseph, Honored Speaker: Justice Britt C. Grant, Darlingtonian (Dec. 12, 2017), https://darlingtonian.com/news/2017/12/12/honor-speaker-justice-britt-c-grant/.
[14] Tamar Hallerman, U.S. Senate Confirms Georgia Judge To Powerful Federal Court, The Atlanta Journal-Constitution (July 31, 2018), https://www.ajc.com/news/state--regional-govt--politics/senate-confirms-georgia-judge-powerful-federal-court/Gk4G1F4HYtYLrgPvwJg0sO/.
While serving as Counsel for Legal Policy in Georgia’s Office of the Attorney General, Grant assisted in drafting an amicus brief to the Supreme Court in Conestoga Wood Specialties Corp. v. Sebelius, a case similar to Hobby Lobby. The brief states: “Courts should not become enmeshed in evaluating the interpretive merits or proper doctrinal weight of religious principles. Their religious propriety is not for the courts to second guess. And the government lacks a compelling interest justifying the substantial burden it seeks to impose when the businesses adhere to these guiding religious principles.”[15]
Judge Grant wrote for the majority in Otto v. City of Boca Raton, stating states could not prohibit so-called “conversion therapy” without violating the first amendment, since such regulation is “grounded in the content of speech.”[16]
[15] Brief of Amici Curiae the State of Michigan, Ohio, and 16 Other States Supporting Petitioners, at PDF p. 4, http://sblog.s3.amazonaws.com/wp-content/uploads/2013/10/Conestoga-Amicus-10-21-13.pdf (emphasis added).
[16] Otto v. City of Boca Raton, 981 F.3d 854, 864 (11th Cir. 2020) PDF Link: https://media.ca11.uscourts.gov/opinions/pub/files/201910604.pdf.
While she was solicitor general, Judge Grant defended a “fetal pain” law in Georgia that made it illegal to perform abortions after 20 weeks with a few exceptions. She later recused herself from the case when she was a justice on the Georgia Supreme Court. [17]
However, Judge Grant may be weak on defending the right of pro-life advocates to protest outside abortion clinics. Judge Grant signed onto an opinion written by Chief Judge Pryor which held that a group of pro-life advocates failed to state a plausible claim against a city ordinance for violating First Amendment protections and committing viewpoint discrimination. The activists alleged that a noise provision in their event permit hindered their ability to protest outside an abortion clinic. They claimed that the provision was a pretext for viewpoint discrimination. The court held that under the facts of the complaint, the provision did not violate the First Amendment and did not constitute viewpoint discrimination. [18]
[17] Bill Rankin, Judge rejects challenge to states ‘fetal pain’ abortion law, The Atlanta Journal-Constitution (May 25, 2016), https://www.ajc.com/news/local/judge-rejects-challenge-state-fetal-pain-abortion-law/rOWQw1E7Wb50EGPIrMNWMJ/.
[18] Henderson v. McMurray, 987 F.3d 997 (11th Cir. 2021), PDF Link: https://media.ca11.uscourts.gov/opinions/pub/files/202010879.pdf.
While working for the state of Georgia, Grant reviewed and edited an amicus brief in Obergefell asserting that gay marriage is not supported by the Constitution.[19] The brief reads, “The Constitution takes no sides on same-sex marriage, and therefore leaves the issue up to the free deliberations of state citizens. The fact that Americans have reached different conclusions about this novel question is not a sign of a constitutional crisis that requires correction by this Court. It is rather a sign that our Constitution is working as it should. . . .”[20]
Grant defended sexual orientation therapy in Otto v. City of Boca Raton but had a questionable rationale. Grant wrote an opinion supporting the right of marriage and family counselors to engage with clients using sexual orientation therapy.[21] Concerningly, Grant appealed to the rights of pro-LGBT counselors to affirm LGBT sexual and gender identities: “This decision allows speech that many find concerning—even dangerous. But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client's same-sex attractions if the city council deemed that message harmful. And the same goes for gender transition—counseling supporting a client's gender identification could be banned. It comes down to this: if the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere. People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.”[22]
Grant signed onto an opinion that upheld a ban on transgender students using opposite-sex bathrooms. In the opinion written by Judge Lagoa, the court held that separating school bathrooms based on biological sex does not violate the equal protection clause or Title IX.[23]
[19] S. Questionnaire p. 42. Link here.
[20] Brief of Louisiana, Utah, Texas, Alaska, Arizona, Arkansas, Georgia, Idaho, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, and West Virginia as Amici Curiae Supporting Respondents, at PDF p. 2. Link here (emphasis added).
[21] Otto v. City of Boca Raton, Fla., 981 F.3d 854 (11th Cir. 2020) Link here.
[22] Otto v. City of Boca Raton, Fla., 981 F.3d 854, 871 (11th Cir. 2020) Link here (emphasis added).
[23] Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022) Link here.
Judge Grant worked on a pro-Second Amendment amicus brief for Friedman v. City of Highland Park, Ill., 577 U.S. 1039, (2015), asking the court to overturn a ban on AR-15-style rifles.[24] Though not directly credited for authoring the brief, Judge Grant was at that time Solicitor General for the State of Georgia. The brief states: “In case after case, the lower federal courts have steadily undermined Heller, and the time has come for this Court to intervene . . . This Court’s involvement is needed to reaffirm Heller and the efforts in most States to protect the Second Amendment rights of their citizens.”[25]
Judge Grant has not ruled on a Second Amendment issue either as a judge on the 11th Circuit (besides such instances as firearms in possession by a felon) or during her time on Supreme Court of Georgia.
[24] Brief of Amici Curiae, State of West Virginia and 23 Other States in Support of Petitioners, SCOTUSBLOG (Aug. 28, 2015), Friedman-v.-Highland-Park-cert.-amicus-brief-15-133-filing-M0103529xC...-c1.pdf (scotusblog.com).
[25] Brief of Amici Curiae, State of West Virginia and 23 Other States in Support of Petitioners, SCOTUSBLOG (Aug. 28, 2015), Friedman-v.-Highland-Park-cert.-amicus-brief-15-133-filing-M0103529xC...-c1.pdf (scotusblog.com). (See PDF p. 12-13) (emphasis added).
Judge Grant seemed to lean in favor of schools in the context of violations of the Individuals with Disabilities Education Act (IDEA). Grant wrote in N. Next Friend Of M.N. v. Jefferson County Board of Education that compensatory education is not an automatic remedy for a child-find violation under IDEA.[26] The child-find duty requires that a school provide an evaluation to any student suspected of having a disability.[27] She also wrote that a parent’s right to relief is contingent on whether a student has lost educational opportunity due to a violation of IDEA.[28]
[26] J.N. next friend of M.N. v. Jefferson County Board of Education, 12 F.4th 1355, 1362 (11th Cir. 2021), https://cases.justia.com/federal/appellate-courts/ca11/19-14847/19-14847-2021-09-10.pdf?ts=1631305913, at PDF p. 1.
[27] J.N. next friend of M.N. v. Jefferson County Board of Education, 12 F.4th 1355 (11th Cir. 2021), https://cases.justia.com/federal/appellate-courts/ca11/19-14847/19-14847-2021-09-10.pdf?ts=1631305913, at PDF p. 3-4.
[28] J.N. next friend of M.N. v. Jefferson County Board of Education, 12 F.4th 1355, 1366 (11th Cir. 2021), https://cases.justia.com/federal/appellate-courts/ca11/19-14847/19-14847-2021-09-10.pdf?ts=1631305913, at PDF p. 11.
Judge Grant took a ‘careful’ approach to questions regarding administrative law during her nomination to the Eleventh Circuit. When Senator Feinstein asked Judge Grant what her views on administrative law were, she replied: “…administrative law is a vast topic, and one that it would be difficult to effectively or cogently summarize. Moreover, even if it were possible for me to summarize my views, it would not be appropriate for me to do so as a judicial nominee according to Canon 3(A)(6) of the Codes of Judicial Conduct because administrative matters are commonly litigated.”[29]
[29] S. Questions for Answer, p. 8. Questions from Senator Feinstein, Question #14c.
From 2004 until at least 2018, Grant was a member of the Federalist Society.[30] According to her Senate Questionnaire, Grant was a member of an organization called Teneo from 2013 until at least 2018.[31] The Teneo Network “work[s] together across industries, geographies, and ideologies to creatively launch the projects that advance the human condition.”[32] It is of note that the “Teneo Network,” although conservative, holds “belief in a transcendent order” which may be “founded in tradition, philosophy, or theology,” rather than mentioning God.[33]
Grant has been a member of the American Law Institute since 2018.[34] Before she started law school, Grant worked in several policy positions under President George W. Bush.[35] During this time, Grant worked at the Office of Cabinet Affairs, with the USA Freedom Corps, and on the Domestic Policy Council.[36] Grant worked as a legislative correspondent and communications director for Nathan Deal, a Republican congressman, in 2000 and 2001.[37] After law school, Grant clerked for Judge Brett Kavanaugh of the District of Columbia Circuit.[38] Grant worked for the Office of the Attorney General in Atlanta, Georgia as Solicitor General from 2015 to 2016 and Counsel for Legal Policy from 2012 to 2014.[39]
[30] S. Questionnaire p. 3. Link here.
[31] S. Questionnaire p. 6. Link here.
[32] Teneo, Teneo Network, https://www.teneonetwork.com/.
[33] Teneo, Teneo Network, https://www.teneonetwork.com/ (emphasis added).
[34] S. Questionnaire p. 4. Link here.
[35] Tamar Hallerman, U.S. Senate Confirms Georgia Judge To Powerful Federal Court, The Atlanta Journal-Constitution (July 31, 2018), https://www.ajc.com/news/state--regional-govt--politics/senate-confirms-georgia-judge-powerful-federal-court/Gk4G1F4HYtYLrgPvwJg0sO/.
[36] Tamar Hallerman, U.S. Senate Confirms Georgia Judge To Powerful Federal Court, The Atlanta Journal-Constitution (July 31, 2018), https://www.ajc.com/news/state--regional-govt--politics/senate-confirms-georgia-judge-powerful-federal-court/Gk4G1F4HYtYLrgPvwJg0sO/.
[37] Tamar Hallerman, U.S. Senate Confirms Georgia Judge To Powerful Federal Court, The Atlanta Journal-Constitution (July 31, 2018), https://www.ajc.com/news/state--regional-govt--politics/senate-confirms-georgia-judge-powerful-federal-court/Gk4G1F4HYtYLrgPvwJg0sO/; see also S. Questionnaire p. 3. Link here.
[38] Tamar Hallerman, U.S. Senate Confirms Georgia Judge To Powerful Federal Court, The Atlanta Journal-Constitution (July 31, 2018), https://www.ajc.com/news/state--regional-govt--politics/senate-confirms-georgia-judge-powerful-federal-court/Gk4G1F4HYtYLrgPvwJg0sO/.
As Solicitor General, Grant helped litigate issues involving federal overreach.[40]
Grant wrote an opinion supporting an injunction on Biden’s COVID-19 vaccine mandate for businesses. Her opinion went beyond Judge Anderson’s concurrence in that she held that the Appellees showed a substantial likelihood of success on the merits because the mandate was likely beyond the authority of the president. She wrote, “While it tells us that Congress crafted the Procurement Act to promote economy and efficiency in federal contracting, the purpose statement does not authorize the President to supplement the statute with any administrative move that may advance that purpose. The partial dissent erroneously equates the federal government's approach with the one taken in Gundy v. United States. 139 S. Ct. 2116, 2126-27, 204 L. Ed. 2d 522 (2019). There, the plurality used the purpose.”[41]
In People First of Ala. v. Sec'y of State for Ala, Grant allowed a lower court to force the Alabama Secretary of State to adopt curbside voting procedures during COVID-19 that were unauthorized by the law or legislature. Grant agreed to keep curbside voting only because she believed illegal voting could still be prevented. She wrote in her concurrence “We have no evidence that any jurisdiction is likely to accept the court's invitation to innovation, much less find a way to do so lawfully. Because the order applies only to curbside voting procedures ‘that otherwise comply with state election law,’ I reluctantly concur in the denial of an emergency stay with the understanding that unlawful procedures can still be barred.”[42] The case eventually went to the Supreme Court of the U.S. The more conservative justices, Roberts, Thomas, Gorsuch, Alito, and Kavanaugh disagreed with Grant and granted the stay, thus prohibiting curbside voting.[43]
Judge Grant sided with the executive branch, and against former president Donald Trump, regarding the raid on Trump’s estate.[44] Judge Grant did not like Trump’s legal team using the word ‘raid’ to characterize the event, asking Trump’s team during argument, "Do you think that raid is the right term for execution of a warrant?"[45] Trump attorney James Trusty replied, “Execution of a warrant, that’s fine, your honor. I apologize for using a more loaded term.”[46]
[40] S. Questions for Answer, p. 5. Questions from Senator Feinstein. Question #10a.
[41] Georgia v. President of the United States, 46 F.4th 1283,1299 (11th Cir. 2022) Link here (emphasis added).
[42] People First of Ala. v. Sec'y of State for Ala., 815 F. App'x 505, 517 (11th Cir. 2020) (Emphasis added).
[43] Pete Williams, Alabama asks Supreme Court to block curbside voting, NBC News (Oct. 15, 2020), https://www.nbcnews.com/politics/supreme-court/alabama-asks-supreme-court-block-curbside-voting-n1243587.
[44] Trump v. U.S., 54 F.4th 689, 701 (11th Cir. 2022), 22-13005-2022-12-01.pdf (justia.com).
[46] Michael Macagnone, Appeals court sounds skeptical of Trump case on Mar-a-Lago search, Roll Call (Nov. 22, 2022), https://rollcall.com/2022/11/22/appeals-court-sounds-skeptical-of-trump-case-on-mar-a-lago-search/.
Best meets the ten principles of a constitutional judge.
Rating: GreyNeutral. Record is not as fully developed. Cannot be rated as “green” or “red.”
Rating: RedFails to meet the ten principles of a constitutional judge.
AFA Action is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association.