Two Years After Barrett’s Confirmation, Let’s Be Blunt: The Point Was to End Roe

Today marks the two-year anniversary of the appointment of Amy Coney Barrett to the U.S. Supreme Court on the eve of the 2020 election. For two years, she has proven to be an ongoing disaster for democracy.

Barrett was chosen because she secures the extreme agenda of the right-wing faction now in control of the United States’ highest court. The spin by right-wing dark money groups during her nomination hearings that she would set aside her personal views, follow settled law, and rule fairly has been refuted by the repressive dictates from the court that her installation has made possible. (Recent revelations of Samuel Alito’s express assurance to former Sen. Ted Kennedy that he would not overturn Roe further demonstrate that such promises are empty.)

Barrett is a destructive force aimed at 20th-century legal precedents that belatedly made some of the U.S. Constitution’s promises real for many Americans rather than mere parchment that served the elite.

If voters decide to elect a much more progressive Congress this November, lawmakers could expand the number of justices on the court and set term limits on the current appointees, as Demand Justice and other progressive groups have suggested. An emboldened House could even begin impeachment proceedings, where evidence supports such action, as with Brett Kavanaugh’s perjury and Clarence Thomas’s ethical failures.

On this inglorious anniversary, it is worth remembering that but for the 2020 installation of Barrett — as Donald Trump was literally being voted out of the White House — there would not have been enough votes for the Supreme Court to fully overturn Roe v. Wade.

Chief Justice John Roberts’s time on the court before Barrett was on board has been marked by the hollowing out of Americans’ rights, while he was pretending to follow precedent — and garnering some fawning press with his claim that he would be a humble umpire calling balls and strikes rather than a player on a team. Think Citizens United, where Roberts deputized Justice Anthony Kennedy to write a majority opinion that reinterpreted the First Amendment and destroyed Congress’s power to limit dark money. The ruling unleashed a tsunami of secret cash that has engulfed U.S. elections and the court.

And recall Shelby County, where Roberts himself wrote the ruling gutting key protections of the Voting Rights Act (which he had attacked as a young lawyer in the Reagan administration) by claiming that U.S. society had transcended the anti-Black racism of the 1960s, despite congressional findings to the contrary. He thus enabled 21st century-style anti-Black racism through voting restrictions schemed by the GOP and its id, Donald Trump. A federal court, for example, found that a 2013 law that restricted voter IDs and more in North Carolina “target[ed] African Americans with almost surgical precision.” That measure would not have been allowed to proceed without pre-clearance by the Justice Department under the Voting Rights Act before Roberts gutted it. A similar Texas measure that had been held back due to pre-clearance because the state could not prove it would not harm Black and Latino voters became binding law immediately after Roberts’ ruling. Some Republican legislators adopting voter restrictions schemes even said the quiet part out loud.

But with Barrett on the Court, Justice Alito did not have to bend to Roberts’ artifice of gradualism to get a fifth vote to destroy the protections guaranteed by Roe and Planned Parenthood v. Casey.

So, Alito was unrestrained in advancing the kind of religious decree he had seemingly coveted to impose with his longtime ally, Justice Clarence Thomas.

Alito’s ruling in Dobbs v. Jackson Women’s Health Organization rescinded the constitutional right to have an abortion without state interference in the early months of a pregnancy. It is larded with so much bombastic rhetoric that it’s almost as if the court that is entrusted with protecting the rights of “We the People” is actually a partisan editorial board housed inside the nation’s most ornate government building — Rupert Murdoch’s Wall Street Journal editorial page but with neoclassical columns outside, plus life tenure. Unlike the right-wing rantings of the Journal’s editorial board however, Alito’s tirade carries the force of law and is forcing people into crises that threaten their lives, their mental health and their future ability to start a family when and if they choose.

In my view, Roberts is too politically attuned to have overturned Roe all at once in an election year that could hurt the political party that enthroned him. Before Barrett’s appointment, Roberts was the swing vote in a five-GOP majority, so he could set the pace for the reversals of legal precedents that right-wing lawyers had selected to target.

Most Americans don’t realize that almost all of the cases heard by the Supreme Court are discretionary and not part of any mandatory jurisdiction under the Constitution. The right-wing faction in control of the court is able to handpick which legal precedents it wants to overturn and it is busy inventing new supposed legal “doctrines” like the “major questions” theory put forward by Charles Koch-funded groups, for example, to give a veneer of legitimacy to what is in reality a dramatic power grab. The newest democracy-destructive gimmick right-wing groups are advancing is the utterly discredited “independent state legislature” theory that suddenly bars courts from any oversight over what state legislatures can do in elections, including setting aside the popular vote.

Notably, in the 2021-22 term, the court heard just 66 cases of more than 8,000 petitions, choosing cases to limit commonsense protections against gun violence, to expand prayer in public schools, to restrict the power of the Environmental Protection Agency to mitigate climate change, and to overturn Roe, while also signaling that limiting constitutional rights to access to contraception and restricting LGBTQ+ rights may be next.

On the surface, Dobbs overturned decades of Supreme Court rulings in order to ratify a Mississippi law that banned abortion after 15 weeks of pregnancy. But the aim of the Dobbs ruling was to attack access to abortion care well beyond one state’s borders. Mississippi has one of the highest maternal mortality rates in the U.S., which has the world’s highest maternal mortality rate among economically developed countries, and it has the highest teen pregnancy rate in the country.

Barrett’s vote in Dobbs put abortion on the ballot in every major state and federal election this November.

The good news is that the voter registration of women since Dobbs is up — way up — as seen in the massive pushback shown in the Kansas election this summer.

In response, right-wing groups like the so-called Independent Women’s Voice (IWV) are right now targeting women voters in swing states to downplay the reversal of Roe. IWV and its related group, the Independent Women’s Forum (IWF), state they have no position on abortion, but they have backed every justice who voted to overturn Roe, starting with Thomas and including Barrett.

IWV previously backed U.S. Senate candidates who made outlandish and grotesque claims that women could not get pregnant from rape or that pregnancies that resulted from rape were “something that God intended,” as arguments for abortion bans without exceptions for rape or incest. Its ad campaign targeting this year’s midterm elections does not disclose who is bankrolling it but, notably, that woman’s “voice” group has thrown the voices of very rich men. Under old disclosure rules, IWV had to reveal that one of its biggest funders was the late Foster Friess, the multimillionaire Trump donor who once thought it was funny to remark: “You know, back in my days, they used Bayer aspirin for contraception. The gals put it between their knees and it wasn’t that costly.”

It should come as no surprise that IWV CEO and IWF Board Chair Heather Higgins was part of the elite throng invited to celebrate Barrett’s nomination at Trump’s Rose Garden event. Higgins is the heir to the Vicks VapoRub fortune — brought to you by the same corporation that was the sole U.S. distributor of thalidomide, the anti-morning sickness drug that maimed thousands of children. IWF opposed a Senate vote to confirm Obama nominee Merrick Garland to the Supreme Court vacancy that arose when Justice Antonin Scalia died in February 2016, because it was an election year. But when Justice Ruth Bader Ginsburg died less than two months before the 2020 election, they were all-in for Barrett.

When you look closely at that Rose Garden event that practically anointed Barrett — and infected dozens with COVID-19 — what you see is a sea of right-wing groups celebrating what Barrett herself would later deny under oath. That is that Barrett was chosen not because she would faithfully follow legal precedents but because she was seen as a sure vote for overturning them, in Roe and more.

Which other very special interests were there to celebrate this new era of regression?

*Carrie Severino, a former Thomas clerk who is the public face of the Judicial Crisis Network, which is a core lever in the court-packing operation of the Federalist Society’s Leonard Leo;

*Gary Marx, president of Madison Strategies and co-creator of the Judicial Crisis Network;

*Mike Davis, president of the Article III Project, which also has ties to Leo;

*Kristan Hawkins, president of Students for Life, which Leo helps steer;

*Marjorie Dannenfelser, president of the Susan B. Anthony List, which focuses on getting anti-choice candidates into positions of political power (and she also is a member of the Council for National Policy where Leo touted how the Trump appointees to the court, before Barrett, were at the precipice of changing the interpretation of the Constitution in ways not seen in a century since the robber baron era);

*William Mumma of the Becket Fund, which has given Leo its highest award;

*Maureen Ferguson, senior fellow at the “Catholic Association,” a dark money group that Leo has been on the board of and that is part of his cadre of groups administered by the anti-choice and anti-marriage equality money man Neil Corkery;

*C. Boyden Gray, a long-time ally of Leo’s in packing the courts with anti-choice and anti-regulation appointees (and a Big Tobacco heir);

*Ed Whelan, president of the “Ethics and Public Policy Center” where Leo has served on the board (Whelan infamously attacked Christine Blasey Ford in aid of Brett Kavanaugh’s Supreme Court nomination by audaciously claiming she was sexually assaulted by someone else.);

*Alex and Jill Vogel and their son. (The Vogel law firm is a core ally in Leo’s umbrella of court-packing groups; Jill Vogel, heir of the Liberty gas station chain, is an elected representative in Virginia.)

Twelve other vehemently anti-choice groups were represented at the ceremony by: Carol Tobias (president of the National Right to Life), Jeanne Mancini (president of March for Life), Penny Nance (leader of “Concerned Women for America”), Tony Perkins (president of the Family Research Council, Ralph Reed (chair of the Faith and Freedom Coalition and former head of the Christian Coalition), Michael Farris (president of Alliance Defending Freedom, which helped orchestrate the Dobbs case and other attacks on reproductive rights), Kelly Shackelford (president of the First Liberty Institute), Kay Coles James and John Malcolm (of the Heritage Foundation), Matt Schlapp (leader of the American Conservative Union), Tom Fitton (president of Judicial Watch), David Bossie (president of the group called “Citizens United”) and Jenny Beth Martin (head of the Tea Party Patriots).

In all, more than 30 special interest groups with an agenda to have the court to reverse Roe and other major legal precedents were there. There were so many operatives against Roe that it’s almost as though they knew something Barrett would deny under oath.

In addition to numerous Trump appointees, a group of anti-choice senators was there, including Josh Hawley (R-Missouri), Mike Lee (R-Utah), Marsha Blackburn (R-Tennessee), Mike Crapo (R-Idaho), Thom Tillis (R-North Carolina), Ben Sasse (R-Nebraska) and Kelly Loeffler (R-Georgia). Fox News hosts Laura Ingraham and Pete Hegseth were also in attendance. There were also some intriguing lesser-known attendees, such as Anthony De Nicola, a partner at a hedge fund, and Maureen Blum, the president of “Strategic Coalitions and Initiatives,” who describes her work as “strategic political warfare.”

Next to Heather Higgins at the Rose Garden festivities sat Cleta Mitchell, one of the lawyers now infamous for aiding Trump’s lies about the 2020 election. Mitchell was on the call with Trump when he seemingly tried to extort the Georgia secretary of state, Brad Raffensperger, to just find more votes for him. Though she lost her job at a big law firm, the ongoing investigation into that call has not deterred Mitchell from continuing to attack the election and trying to change state laws to make it harder for Americans to vote. She’s also been caught on tape telling Republican legislators to destroy their notes about her advice on how to redraw voting district maps as part of extreme partisan redistricting schemes to control state power.

There were also 10 big church reps who backed Trump and his anti-abortion stance, including Franklin Graham, Billy Graham’s son, and Jerry Prevo, acting president of the right-wing Liberty University.

As could be expected, the event also included Barrett’s family and former colleagues from Notre Dame Law School, including law professor O. Carter Snead. Snead was one of several attendees to submit amicus briefs that called for Roe to be overturned to the court after Barrett’s confirmation . Barrett did not recuse herself for her lack of impartiality and her documented history of attacking Roe. Senators Josh Hawley and Mike Lee, who were at the Rose Garden event, also submitted an amicus brief with Sen. Ted Cruz calling for Roe to be overturned. Erin Hawley — who is married to the January 6 jogger and insurrectionist senator who shares her surname — helped Alliance Defending Freedom coordinate the legal assault on Roe through the Mississippi case and other vehicles.

What few knew back then, despite the spirited opposition to Barrett’s confirmation, was how the Federalist Society’s Co-Chairman Leonard Leo maneuvered Barrett onto the Supreme Court. As I previously noted in testimony to the Senate Committee on the Judiciary:

According to a new book co-authored by Severino — who worked closely with Leo on the pressure campaigns to block Garland and install Gorsuch — Leo met with then-White House Counsel Don McGahn in April 2017 about expanding Trump’s Supreme Court list to include Barrett. At that time, Barrett had been a law professor for 15 years and had no judicial experience, but Leo and the White House Counsel’s Office were going to remedy that by getting her some time sitting on a federal circuit court. In May of that year, Trump nominated Barrett to a vacancy on the Seventh Circuit created by [Sen. Mitch] McConnell’s refusal to allow President Obama’s nominee, Myra S. Powell (the first black woman appointed to the Indiana Supreme Court), a hearing for nearly a year….

Leo met for dinner twice, in June and September 2017, with Trump to discuss nominations including Barrett a candidate on Trump’s list for the next vacancy on the Supreme Court, which was expected to be Ruth Bader Ginsburg. Barrett was confirmed to the Seventh Circuit on Halloween of 2017. [Then] on November 17, McGahn announced that Trump had added Barrett to his short list. That announcement came during the Federalist Society’s National Convention, where Barrett spoke…

Before Barrett could be nominated to the Supreme Court though, another vacancy arose with Anthony Kennedy’s announcement that he would be stepping down in 2018. Leo mobilized groups to which he steered funding to support Kavanaugh’s confirmation to the seat despite evidence that Kavanaugh had previously lied under oath to Congress and in spite of the compelling testimony of Ford about his attempt to assault her, which he denied. IWV was one of the groups that flanked Kavanaugh; along with its 501(c)(3) arm, IWF, it had received substantial funds from Leo-tied groups and dark money entities as Trump began packing the court with Leo’s assistance.

After millions in dark money spending helped propel Kavanaugh onto the court, the Washington Post began an in-depth investigation of Leo’s court-packing operation, culminating in a story by Robert O’Harrow Jr. and Shawn Boberg in May 2019. That investigation tallied the money raised by Leo’s umbrella groups at more than $250 million, along with revealing that Leo’s personal assets seemingly increased dramatically in 2018. (True North Research updated that figure to nearly $600 million, earlier this year.)

As a “volunteer” for Trump, Leo was not required to file any financial disclosure forms about his sources of income while he chose the list of Supreme Court candidates from which Trump chose. The Post’s story sparked a firestorm of controversy around Leo, who claimed to the paper’s documentary crew that he was uninterested in money. By the year’s end, Leo had left his day job at the Federalist Society to form a for-profit group called CRC Advisors with his longtime ally Greg Mueller. He continues to be a co-chair on the Federalist Society’s board and aid in its finances.

So when Ginsburg died, Leo was operating under the rubric of CRC, which was deploying the Judicial Crisis Network. That dark money group had been given a new operational name: the Concord Fund, presumably named after the first battle in the Revolutionary War.

But what was not publicly known then was that behind the scenes, Leo had secretly been staked by a right-wing Chicago billionaire, Barre Seid. As Barrett’s nomination was pending Seid was in the process of selling his company and giving the assets to Leo in what was dubbed the “Marble Freedom Trust.” As the The New York Times and ProPublica with The Lever wrote a few weeks ago, Seid was able to use tax lawyers and loopholes to transfer $1.6 billion into Leo’s hands as the sole operative trustee of Marble, tax-free.

Despite this mammoth infusion of cash to fund Leo’s extreme agenda for the Supreme Court, other courts and political offices, Marble has no real address, no website and not even its own phone number. The phone number listed on its first tax filing goes to Corkery, Leo’s longtime collaborator on dark money operations.

What kind of shadowy institution has that much wealth and that little public information? It’s basically just a bank account — a huge one. Some of the other core Leo groups, like Rule of Law Trust and the BH Group/BH Fund, have the same indicia: no real operating address even before the pandemic, no website and no independent phone number (or one that just goes to Corkery), but millions and millions of dollars.

That’s not all.

The Marble Freedom Trust tax filing for 2020 reveals that there are two other men close to Leo involved. One is Tyler Green, whose home in Utah is listed as Marble’s address. He’s the “administrative” trustee, who ostensibly holds the paperwork for the dark money behemoth. Green previously clerked for Thomas and is another Federalist Society brethren appointed previously to a high post in Utah legal circles. The other is Jonathan Bunch, a “successor” trustee in case anything were to happen to Leo. Bunch has a business with Leo and has been helping him with court-packing since before Leo helped launch the Judicial Crisis Network at a dinner with Scalia held just after the 2004 election.

A new book by David Enrich reveals how Bunch reached out to the Trump campaign to help pack the Supreme Court with Leo after Scalia’s death in 2016. According to Enrich, Bunch called Trump adviser McGahn who deadpanned that he had already tapped John Sununu for judicial selection because he had played such an instrumental role in choosing David Souter for the Supreme Court during George H.W. Bush’s presidency. Bunch was apparently taken aback because right-wing operatives had vowed “No More Souters,” which was shorthand for no more independent justices whom the right-wing could not count on to do its bidding in destroying Roe and other legal precedents they dislike.

But it was a joke. McGahn was joking and Bunch was reportedly relieved that Trump would not make the same “mistake” in appointing justices like Souter to the nation’s highest court.

And the joke is on us, except it’s not funny at all.

Instead, the U.S. now faces a Supreme Court packed with right-wing extremists like Barrett. Not only did she vote for overturning Roe, she also refused to recuse herself from a climate liability case involving Shell even though she was raised on Shell money through her father’s work expanding drilling for oil.

And she has refused to reveal her husband’s clients and whether they have any business before the Court. In this Barrett is taking a page from Clarence Thomas, who has not revealed Ginni Thomas’s revenue or clients even though Jane Mayer uncovered that Ginni has been paid by those filing briefs to the court where her husband sits in judgment. (He has also refused to recuse himself from cases implicating his wife, who was demonstrably involved in efforts to stop the counting of the 2020 presidential vote.) Barrett refused to step back from rulings like Dobbs despite her personal agenda to overturn Roe, as evidenced by her signature on a 2006 anti-abortion ad.
With Barrett and the other Trump judicial appointees, the U.S. now has five Supreme Court justices who appear to have no concerns with imposing their personal views as law, such as ruling that the government can regulate the most intimate personal health choices about if and when to start a family but that the EPA cannot regulate corporations to require more alternative energy to mitigate climate change.

The anniversary of Barrett’s confirmation is a travesty. And her tenure will continue to do damage to our rights and our democracy until we have a Congress willing to rein in the radical reactionary justices arrogantly imposing their religious beliefs and partisan political agenda as binding law on the rest of us.