Jurisprudence

Why Conservatives Like Judges Who Oppose Abortion

It’s not just about reproductive rights.

Amy Coney Barrett smirks and looks up and to her left.
Judge Amy Coney Barrett testifies on the third day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on Wednesday. Jonathan Ernst/Getty Images

On a recent episode of Amicus, Dahlia Lithwick talked with Ilyse Hogue, the president of NARAL Pro-Choice America and the author of The Lie That Binds, about Judge Amy Coney Barrett, her Supreme Court confirmation hearing, and the dark money behind the courts. A partial transcript of their conversation, which has been edited and condensed for clarity, is below.

Dahlia Lithwick: I want to start, as I must, with the hearings. I know you’ve watched a lot of them. I’ve watched a lot of them. It’s just formulaic. Nominee says nothing, pledges to have an open mind, refuses to opine on any hypothetical future case, refuses to opine on any settled past case beyond, I guess, Marbury. Did any element of the evasions and the “I can’t answer” and the blank-slate Kabuki surprise you? Or was this just pretty much the norm?

Ilyse Hogue: I think it’s unfortunate in how much of the norm it was that we have come to expect, because what is happening is the antithesis of normal. And what we saw was a tremendous amount of gaslighting, obfuscation, and nonanswers from the nominee, but compounded by the fact that the GOP was rewriting history sitting in the hearing room, as they are wont to do. Even that, unfortunately, has come to be known as the norm. And I think it is incredibly dangerous that we see that as the norm, when in fact the role and responsibility of senators on both sides of the aisle is to legitimate the court, which stopped happening a while ago, but really was driven home with their rush to confirm this nominee and to vet this nominee for her reasonably extensive record, since a lot of times they like blank slates. It felt normal, and that in and of itself is deeply appalling.

This was different to me than, say, a nominee like Clarence Thomas, who could, I guess, plausibly claim he had never discussed Roe at law school, had never thought about it. This is a nominee who as a private citizen signed ads calling abortion barbaric. She gave talks as an academic. She wrote papers as an academic. And then in her three years on the federal bench, she certainly wrote opinions and dissents that suggested that things that were settled principles of Casey—parental notification waivers—those things are also up for grabs. So there’s a way in which this is not an ambiguous record. In fact, it’s so unambiguous that the president can crow about what’s going to happen. Sen. Josh Hawley can crow about what’s going to happen. Sen. Lindsey Graham can crow. “This is a person who’s going to strike down Roe.” And yet she still managed to pull off the claim that she had no dog in this fight, and that’s a sea change, right? Even Neil Gorsuch and Brett Kavanaugh didn’t have the chutzpah to suggest that, “Oh, don’t mind decades of advocacy and clear material thinking and work on this issue. Today, I am a different person.”

This nominee’s record is extremely clear and, in fact, not that long ago would be disqualifying. And that is a really important thing to note for your listeners. Because in some ways we are all the frogs in the GOP’s boiling water. They have had a strategy of normalization of what are extreme actions and extreme views for some time. And we grow complicit when we actually forget what it used to be like. And that’s crucially important because you’re correct: Her nomination is dangerous. It’s dangerous to fundamental rights and freedoms that we should be able to take as sacrosanct, including the fundamental right to make your own decision about whether or not you want to carry a pregnancy to term or seek an abortion.

And I think that what they were out to do—and this gets to your point about her not being Kavanaugh or Gorsuch—is put a nice reasoned face on it. She was chosen for her poise and her reasonable demeanor in an effort to deflect from the fact that what they are doing, both through this illegitimate process and the person that they are nominating, is extraordinarily outside of what most Americans consider mainstream. Now, was she good at it? She was quite good at it. Did they make it easier for her? Absolutely. I’m trying to imagine when else we’ve had more conversations about who does laundry in our homes and how do our families get along when we are out there doing the crazy thing of women working, right? They absolutely painted a picture of someone who was relatable and took every effort possible to avoid any real conversation about clear statements and rulings that this nominee has effected.

Unpack for me what it means to have Lindsey Graham, Marsha Blackburn, Joni Ernst insisting that this is real feminism. That real feminism happens when for the first time there’s a mom on the court except, oops, we’ve had two of those. Real feminism happens only when a conservative woman gets to break her glass ceiling. I don’t even know what I’m asking, except can you locate this in some sort of theory of the case? Because my reaction to it was I cannot quite believe we’re talking about who does laundry at your house.

I think the GOP has long been aware that they should focus on the wrapping paper and not the toxic mess that is inside. They knew that they could not sell an agenda that was oppressive to women through only having men ram it down our throats. And so they have insisted for decades that feminism is a sorority where all women should be accepted, and if not, you’re the bad guys. Versus an actual political philosophy that attacks root causes of gender oppression and works for jurisprudence and public policy that lifts all women up in an equal status to men in this society.

And that is what they were doing with this nominee. It has a long history in the GOP, since they turned this corner from being stridently misogynistic. Some would argue that Phyllis Schlafly was the godmother of being the face of white women willing to uphold a white patriarchy. Kellyanne Conway has done it quite well. And I would say if there is a sorority of these women who are anti-feminist but want to be the standard-bearer, Amy Coney Barrett certainly made herself a core part of that club.

Ilyse, one of the reasons I really wanted to talk to you this week is because Sen. Sheldon Whitehouse spent the bulk of his questioning highlighting the same dark-money, Federalist Society machine, this tiny operation with lots of big money from mysterious sources, a slush fund that leapfrogs cases to the courts and also finances the amicus briefs and also handpicks the judges. One of the frustrations for me is that this is all known—you wrote about this, Jane Mayer’s written about this, Whitehouse has made this point at least three times on this very podcast—and yet I swear to you, nobody understood what he was talking about. And he got lampooned as some Homeland string theorist crazy person. But everything he described about this sort of juggernaut of how we pick and seat judges, how we seed cases, how the reproductive rights movement has been used as a sword to transform both the courts and the conversation around justice, this is all stuff you knew.

That’s known history. It’s all in public documentation. When the Federalist Society, which is the home for aspiring right-wing legal eagles, chose abortion and hostility to Roe as a litmus test for folks who wanted in their club, they did so not because they held more antipathy toward abortion than any other form of self-expression, but because it tended to perfectly map onto hostility to other forms of social progress: workers’ rights, LGBTQ rights, racial justice, voting rights. And that’s what they were going for. It was the whole kit and caboodle. It was a control agenda for a minority of people who had always enjoyed uncontested power, versus where the country was going, which was toward a fight for a more pluralistic and inclusive society that was reflected, again, in our law and public policy.

And that notion of the Federalist Society, that you could use abortion or hostility toward abortion as the tip of the spear, was replicated in research in 2019 that showed most people presume—and this is the fight that the GOP was trying to have with itself this week—that the indicator for hostility toward abortion rights, legal abortion, and Roe is religiosity. That’s demonstrably untrue. Pluralities, if not majorities, of people of all faith actually believe, no matter what they themselves think they would do, that this is not a place for politicians. This is a place for individual liberty. What is a good predictor, in fact, for hostility toward abortion rights is hostility toward other kinds of equity, gender and racial. And so I think it’s crucially important that we actually call this what it is.

Sen. Mike Lee said the quiet part out loud when he said that actually he believes the court should be used as an instrument to protect against the majority. And that is in fact the weapon that the right wing has been honing the court to be for decades. And it is uncontestable that this nomination is the capstone on that strategy. And that is why they are under so much pressure to push this through—cutting corners, violating norms over the will of the American people who really want to be able to decide their next president and have this president fill the seat. It is fundamentally because they understand that they are the minority. They are using the court to assert minority rule. And they know that that will have political consequences for them, and they’re racing to get ahead of it.

To hear the rest of their conversation, listen below, or subscribe to the show on Apple Podcasts, Overcast, SpotifyStitcherGoogle Play, or wherever you get your podcasts.