S1: Slate’s Mark Joseph Stern has been hearing the name Amy CONI Barrett for a couple of years now, ever since this story came out that President Trump was saving Barrett to someday replace Justice Ruth Bader Ginsburg, like over the last three years, pretty much any time I tweet anything about Justice Ginsburg, trolls will respond with something along the lines of she will die and we will replace her with Amy.
S2: CONI Barret’s like nothing has been a constant drumbeat for three years now. As soon as the news broke of Justice Ginsburg’s death, the name on everyone’s lips was Amy CONI Barrett. I mean, I honestly feel like Republicans just placed her outside the cemetery gates and they were like, you know, as soon as Justice Ginsburg takes her last breath, like, we will install you. And I just feel like I have been trolled and many legal analysts have been trolled about this for a very long time. It’s like the maximal troll. It is the final stage of the Trump troll like this is it? It just doesn’t get any troll here.
S1: I mean, you held out the possibility that Amy Barrett would turn down the nomination. Why?
S2: Well, because if you listen to her friends and her supporters, like they all say she’s really smart, which I believe she’s really nice in person, which I believe. And, you know, she’ll be a thoughtful, analytical judge. And I guess, like it seemed to me that if she were really as nice and as empathetic and as thoughtful as they claimed, that she would, at a minimum, not agree to be trotted out at a Rose Garden ceremony intentionally designed to look exactly like RPGs before RBG is literally in the grounds, like it just seems so ghoulish. And she even mentioned at this ceremony, like the flags are still at half staff. Yeah. Because she just died a week ago.
S1: Of course, disappointment. It’s not about being nice. It’s about power. Who’s got it and who doesn’t. For a progressive like Mark, it feels like a rug has been ripped out from under him.
S2: There’s no pretending that they’re doing something. Aside from politics. It just seems like whatever we had for a very long time in this country, a Supreme Court that garnered a lot of respect from both sides, that did at important moments seem to sit above politics and not align itself with one party or platform that’s over and it’s over forever.
S1: Today on the show, Mark is going to explain why this appointment concerns him so much by looking at who Amy CONI Barrett is as a person, but also as a scholar and a jurist. And Mary Harris, you’re listening to what next? Stick with us. Mark says one way to understand how Amy Connie Barrett might rule as a Supreme Court justice is to look at the groups that are endorsing her right now, like the Susan B. Anthony list, which seeks to advance leaders who are opposed to abortion.
S3: And now, she said, to give our pro-life country the court it deserves. After all this week.
S1: Tell the Senate, tell everyone, confirm Amy CONI Barrett, there’s also the Federalist Society. Barrett was speaking at their events just last month.
S2: She is a longtime member of the Federalist Society. She has taken money from the Federalist Society to travel around the country and give speeches. She is very much an entrenched part of the Federalist Society culture. And, you know, when we’re talking about the Federalist Society, we’re talking about this conservative network of attorneys. It begins in law school, but they’re really everywhere and they sort of lift each other up into positions of power. Right. And this was all created by a guy named Leonard Leo, who was for a very long time, the head of the Federalist Society. He handpicked the five conservatives who are on the court today. And even though he has theoretically left the group, everyone seems to agree. Every rational person seems to agree that he’s still playing a role during this confirmation battle.
S1: I think the president and Amy CONI Barrett herself have done a really good job of introducing who this potential justice is. They’ve introduced her as a mom and a religious woman with seven kids, real soft focus, gauzy lighting kind of introduction. But I’m hoping you can introduce Amy CONI Barrett as a jurist. She’s a pretty new federal judge. And so we don’t have a ton of opinions to lean on here. I mean, what we do know is that she clerked for Justice Scalia. He was her mentor, and she went on to teach at Notre Dame. And she was a very beloved professor there. But she also while she was at Notre Dame, she made it very clear her conservative bent, I believe that she was on a faculty group that was that said it was pro-life. And I think that she also, you know, took a stance on the ACA. So it’s like she’s been out there with her opinions.
S2: It’s a little weird because she seemed to dip her toes into a possible career as like a cable news pundit for a couple of years, like maybe twenty, fourteen, twenty, fifteen, twenty sixteen. You see these interviews popping up, including one where she talked about how, you know, if Obama fill Justice Scalia’s seat, it would dramatically alter the balance of power on the court, which is kind of ironic right now. Yeah, I think that what she was doing was following the Federalist Society playbook where what basically what you do and there are some variations, but you clerked for a federal judge, ideally a Supreme Court justice check. Right. You go into corporate law, which she did, Baker Botts check. You go into academia and you build up a student following who will testify at your eventual confirmation hearings about how you’re such a lovely person and you, you know, bring ice cream to class or whatever, check. And then you start to make yourself prominence by going out on cable news and going on the lecture circuit and talking about really controversial issues and a kind of couched in euphemistic way so that the people in the know realize you’re one of them and realize that you will rule for them. But people who don’t pay super close attention to this stuff will just assume you’re being a professor speaking in sort of academic legalese check. So that’s where she was when Trump placed her on the Seventh Circuit. And that hearing, I think, really is what pushed her to the very top of the list, because Dianne Feinstein said the dogma lives loudly within you, which, you know, let’s be clear, I think is totally inappropriate and really kind of offensive.
S1: Well, let’s all I’m going I’m going to roll you back. Roll me back. That that hearing was really interesting because she has this back and forth with Dianne Feinstein. And I want to talk about it a little bit. You are controversial.
S4: Let’s start with that. You’re controversial.
S1: I understand what Feinstein is saying. You know, she’s saying you have a very strong Catholic faith. And I worry about that with you going into a judgeship where you may be ruling through the Catholic faith lens.
S4: I think whatever a religion is, it has its own dogma. The law is totally different. And I think in in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.
S1: But you raise this really interesting point. That’s a trap. Can you explain a little bit what happened and why you think that?
S2: So there is no way for Democrats to win on this talking points, because let’s assume that Dianne Feinstein had a real point here. OK, let’s just assume that she had a valid concern that Amy CONI Barrett would draw upon her Catholic faith rather than the actual law in her rulings. OK, there is simply no way to talk about that without Republicans jumping on what Democrats say and accusing them of anti Catholic bias and accusing them of being bigoted against Catholics. And you can already see it.
S1: Yes, you can see in the last week, you know, pundits coming out and talking about how the quote unquote, liberal media is attacking Amy CONI Barrett’s.
S2: Oh, my God. They were so eager for literally anyone to say anything bad about Barrett’s faith. This whole last week, you saw Republicans salivating like a dog at the at the dinner table, like waiting for a chicken bone. They were like, oh, my God, please. Someone anyone say something about Amy coni Barrett’s faith so that we can trot out these pre written press releases and tweets about how deeply offensive it is that people are attacking her for her Catholic faith. This profound bigotry on the left is just further proof that we must confirm her. And what did we actually see over the last week about her faith, like one bad Newsweek article, some random tweeting stupid stuff that half of them are probably bot’s like. There is not a mass resistance to Amy Barrett on the left due to her faith. There is a mass resistance because she has pretty clearly telegraphed what she is going to do on the court. And to my mind, her motivations are irrelevant. I don’t really care why she believes what she believes, like she shares those beliefs with many other people who are not in devout evangelical Christian charismatic worship group. This is kind of like the dogma of the Federalist Society, and it really accepts all comers. As long as you’re willing to buy into this super conservative like anti ROE, anti LGBTQ, anti labor jurisprudence, you can come from any background you want and you will be welcomed with open arms.
S1: Hmm. Well, can we talk a little bit about the record she has what we know, like where she stands on the ACA, for instance, because the court is set to take up the ACA this term.
S2: Right. Right. So let’s talk about let’s let’s go over her relatively thin record and pluck out some examples so we know that she believes that John Roberts famous 2012 opinion upholding the ACA and the individual mandate, she she she trashed that opinion and she said that Roberts stretched the text beyond any plausible interpretation in order to save the law. So not only saying that the ACA is unconstitutional, but actually imputing bad faith to the chief justice for upholding it. And there is a case that the court that will be heard one week after Election Day that seeks to eradicate the entire Affordable Care Act. It’s not very difficult to guess where she’s going to fall on that. Right. And I think this is a great example of why the Republican strategy on judges is so smart. They cannot get 50 votes to repeal the Affordable Care Act. They cannot get 50 votes to abolish Medicaid expansion or protections for pre-existing conditions or whatever. Right. But they can get 50 votes for judges who will do exactly that. And it is much easier to go out there and defend a mother of seven, a beloved faculty member and student advisor than it is to go out there and defend stripping health insurance from 20 million people. And so this is the game that they have played so successfully. And in some ways, like Berrett is the end game, at least for the ACA.
S1: Another part of this end game is overturning Roe vs. Wade. Mark says undertaking that project requires getting the optics just right.
S2: So I think first and foremost, the plan has always been to have a woman overturn Roe v. Wade. So the plan from from really the beginning. OK, you sound so conspiratorial, right? Well, no. I mean, this is the plan. OK, well, I mean, if you go back and look at what Reagan said about Sandra Day O’Connor when he nominated her, he was like, I know I feel personally confident that she opposes abortion and finds it abhorrent and like will vote to to to not respect abortion rights. And like she was the first woman on the court. Like, this was not a coincidence. This was actually kind of done in plain daylight, like we will put. A conservative woman on the court who will roll back and overturn Roe v. Wade like that was the plan and that didn’t work out because O’Connor ended up flipping. Right. So then Alito takes O’Connor’s place in two thousand seven. The court issues this terrible decision that bans the safest form of a of a second trimester abortion. And it’s five men in the majority, OK, five dudes. And that gets a lot of backlash that that gets a lot of blowback even from kind of like independents and centrist types who are looking at these five dudes and saying they are making decisions for, you know, one hundred and fifty million women. And they are like those justices and the the network of conservative attorneys and politicians behind them understand the optics problem there. They really get that they are vulnerable to accusations of misogyny and sexism when it’s dudes rolling back women’s reproductive rights. And so they have long said behind closed doors and sometimes in broad daylight, like we do not want a sausage party overturning Roe. We want a woman to be the face of Roe’s reversal to shield us from the accusations of misogyny that are certain to follow. And that’s who Amy CONI Barrett is like. She was born for this role. This is what she will do. I have very little doubt.
S1: Why are these groups and why are you so convinced of that?
S2: So one example here is that she voted to reinstate an Indiana law that would require minors seeking an abortion to notify their parents before the procedure, even if a judge heard her case and ruled that she was mature enough to make the decision on her own without parental interference. If what was her reasoning for doing that? Her reasoning. So, know, here’s the thing. She’s only been on the bench for three years, not a super long time. Right. She has not written anything herself about abortion in that period. She’s only joined other opinions. So it’s a little bit difficult to to glean exactly what she was thinking. But her reasoning in general was like, we don’t know exactly how harmful this law is going to be to girls and we don’t know exactly how many girls it will impact. So we need to let the law take effect and then assess the the the consequences rather than blocking it on the theory that young women need their constitutional rights protected. Basically, almost any time someone who is powerless or weak or a minority or is relying on the federal judiciary to protect their rights at any time one of those people goes before Amy Koni Barrett, she rules against them. And it’s a very, very, very clear pattern here. Prisoners who were subject to disproportionate violence don’t get rights. When Amy coni baratz on their case, an immigrant who is about to be deported and is going to face torture at home. Amy CONI Barrett says deport them, send them away. A older person who is applying for a job and likely turned away because of age discrimination. Amy Barrett says tough, tough shit like you don’t have any rights here. You can just suffer.
S1: I mean, you’ve called it a fundamentally cruel interpretation of the law.
S2: It seems as if any time there are two plausible readings of of a text and one of them expands rights and one of them contracts them, she always goes for the reading that will contract rights, that will turn away vulnerable people, that will inflict real world harm on the people before her court. And that is just so, so radically different from how Justice Ginsburg approached the law. Justice Ginsburg pretty much always took the more expansive reading, the reading that that better protected liberty and equality and constitutional values that she held dear.
S1: OK, so let’s talk about what happens now in some ways, it’s very traditional, the nominee goes and meets with people on Capitol Hill. Is it looking like that’s going to go differently this time around because of how controversial Amy Connie Barrett is as a nominee?
S2: I think that more Democrats will refuse to meet with her. I think we’ll see them doing what a lot of Republicans did to Merrick Garland, which is say you’re not a legitimate nominee, so I’m not going to meet with you. I think there’s going to be a real tug of war over whether to even show up to the hearings because like sitting in the same room with her legitimizes her nomination and legitimizes this whole process. And the line the Democrats seem to be settling on, at least as of now, is that this whole thing is illegitimate because Republicans have totally violated their own rule. People are voting as we speak. Right. The election is well underway and everyone seems to agree that like the winner of the upcoming election should be the one to pick the nominee. I mean, not everyone, but a very large majority of Americans, including a lot of Republicans. So I think that some Democrats, like maybe Joe Manchin, are going to meet with her and they’re going to say, oh, I don’t know, I’m not sure, but there’s going to be a really strong temptation for these kind of like bipartisan, centrist Dems to treat this like it’s normal because she will come across well in the hearings, I believe, and she will seem like a competent, qualified nominee if you subtract all of the craziness and horror and partisanship that surrounds her nomination.
S1: I mean, you wrote that Democrats should try to stop this appointment by any means necessary. Like, what do you have in mind if you were on Capitol Hill? Well, you know, first of all.
S2: I really don’t think there’s any chance that Democrats can stop it. And I also think that they have a moral obligation to do everything that they can to stop it. OK, I think that they need to go out and say, like, we know this is a losing battle, but we will fight it anyway. You think the signaling is important? I think the signaling is important. Why? Because I think they need to show voters just how messed up this is and just what an extreme power grab this is to fabricate a principle against confirming justices in an election year and then turn around and confirm a justice not just in an election year, but while people are actively voting. They need to show Democratic voters and the American people that this is wrong and that this is the quintessence of playing politics with the Supreme Court. They show up for hearings. I think they send someone to ask questions at hearings, a very intelligent counsel. I do not think they should show up now. I think they should send somebody to ask the tough questions. But I honestly don’t trust most of them to ask those questions. Well, and I don’t think that they should normalize this any more than it’s already been normalized.
S1: I mean, it’s worth remembering we had Jamelle Bouie on the show last week and he talked about what a risk this is for the Republicans and for Mitch McConnell, because now we have some polling and the polling does show that Americans think we should wait until the president is elected to make this decision. We also have a statement from the Lincoln Project, which has a bunch of you know, we talked about the Federalist Society has a bunch of former Federalist Society people in it. They’re also saying we should wait. So there is this pressure. I’m not sure anyone in Washington is feeling it, but it exists, I guess my question is like when, you know, the Democrats can not show up, but what would it take for the Republicans to feel this as a real threat?
S2: So I think that they need to see massive protests in the streets on the scale of what we saw when they were on the verge of repealing the Affordable Care Act because they are on the verge of repealing the Affordable Care Act. Again, like we need people to grasp that we are in as perilous a moment for health care as we were back in twenty seventeen when the Senate seemed to have the votes to repeal the ACA altogether. They do have the votes now to repeal the ACA. They’re just doing it through like an intermediary. And so I think that we need to explain this to everybody, not just Democrats. Like, you know, a lot of people have a vested interest in not being stripped of their health insurance. And I think those people need to be told to make their voices heard, wear a mask, use social distancing, but like show the Republicans that you get their game, that you are not fooled by this strategy of putting judges on the courts who will implement the unpopular policies that you couldn’t pass democratically.
S1: Mark Joseph Stern, thank you so much for joining me. Thank you. Mark Joseph Stern covers the Supreme Court for Slate. And that’s the show, but before we go, I’ve got a quick favor to ask.
S3: We’re asking listeners like you. Yeah. You to call in and tell us how you’re preparing for Election Day. What are you going to do to make sure your vote or your neighbor’s vote or your loved ones vote counts? Are you working in a poll site? Are you making a voting plan? Tell us. And if this is your first time at the polls, I want to know all about that, too. Just leave a message at two zero two eight eight eight two five eight eight. What Next is produced by Daniel Hewitt, Elena Schwartz, Mary Wilson and Jason de Leon. We get help putting it all together from Allison Benedikt and Alicia Montgomery.
S1: And I’m Mary Harris. I’ll catch you back here tomorrow.