If nominated, the Senate will want to know “whether this was her position, or was she simply arguing a position that the solicitor general or possibly EEOC had given her,” said Michael W. McConnell, director of the Stanford Constitutional Law Center. “Having been in that office, I know from experience it could be either way.”

The lower court’s decision was not “radical,” according to McConnell, a former federal judge who is an expert on religion and the law at Stanford University.

But the Supreme Court’s review of the decision “became important because of the extreme position the solicitor general took,” McConnell said.