On Wednesday, the Supreme Court heard oral arguments in Dobbs vs Jackson Women’s Health Organization. The case pits the one remaining abortion clinic in Mississippi against the state's attempt to ban abortions after 15 weeks. I usually counsel against predicting Supreme Court rulings at this stage, but it is clear that, with this one, the only remaining question is whether the court will gut Roe vs Wade or completely overturn it.
During a discussion about this case with Senator Ted Cruz on Wednesday evening, Fox News host Laura Ingraham said the quiet part out loud.
Just saying it out in the open.— Justin Baragona (@justinbaragona) December 2, 2021
Laura Ingraham says it's time to "blow it up" if "these six justices cannot do the right thing" by overturning Roe v. Wade after "all the money that has been raised" and "these big fat cat dinners."
"I'm pissed about this!" pic.twitter.com/fyP16lplt8
Ingraham not only talked about all of the money that's been raised to stack the court with these six extremist judges, she specifically mentioned the Federalist Society. Her reference to the six justices aligns with what Sotomayor said after stating the fact that the sponsors of the Mississippi bill in question said that they were doing it because they have new justices.
“The sponsors of this bill…said we’re doing it because we have new justices…Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”— Keith Boykin (@keithboykin) December 1, 2021
— Justice Sonia Sotomayor pic.twitter.com/XhkDzQ8jR5
The stench Sotomayor is talking about won't just be about public perception of the Supreme Court. It will also emanate from the fact that dark money has been used by people like McConnell and Leonard Leo at the Federalist Society to stack the courts.
The fact is that the six justices being referenced: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, were all shepherded onto the Supreme Court by Leo, so he's been at this for years. In 2019, investigative reporters at the Washington Post documented the trail of dark money he has tapped into in order to "remake the nation's courts." Similarly, during Barrett's confirmation hearings, Sen. Sheldon Whitehouse gave a master class on how it all works.
Minority Leader Mitch McConnell referred to his own role in stacking the courts as his "most consequential political accomplishment." It isn't just that he denied a sitting president the ability to fill a vacant seat on the Supreme Court, he pretty much gutted the ability for the Senate to function as a legislative body and focused all of his efforts on what he called the "judge project."
It is important for all of us to understand why McConnell, Leo, and all of their dark money donors have focused on stacking the courts. As I've documented previously, Leo is a leader of what might be called the Catholic version of Christian nationalism. Five of the six justices he has shepherded onto the Supreme Court are Catholic. The one exception is Gorsuch, who was raised Catholic but attended an Episcopal church after he married an Anglican. As such, all six seem poised to rule in favor of right wing culture warriors when it comes to things like reproductive rights and marriage equality.
It seems clear that McConnell has no particular interest in culture wars, except to exploit them for his own interests. His long-term association with dark money donors tells us where those interests lie. During his presentation at the Barrett confirmation hearings, Sen. Whitehouse said that he had reviewed 80 Supreme Court cases since John Roberts became the Chief Justice that all had these things in common:
- They were decided 5-4
- The 5-4 decision was partisan, with Roberts and the four justices nominated by Republicans in the majority
- There was an identifiable Republican donor interest in the case
- Allowed unlimited and dark money in politics
- Knocked the civil jury system down
- Weakened regulatory agencies
- Suppressed the vote
Judicial engagement turns the whole concept of judicial restraint (something we used to hear a lot about from conservatives) on its head. It suggests that, rather than giving the benefit of the doubt to the elected branches of government, judges should strike down laws that they think violate the Constitution. We saw that most notably with their attempts to eliminate Obamacare. But as Roth explains, the deeper issue at work here is to elevate property and economic rights to be on par with other rights, like free speech. The goal is to strike down laws that regulate business or protect workers in favor of “liberty” for corporations. Or as Roth puts it: “All of a sudden activist judges are the last line of defense against the mob.”
In other words, it is yet another way that conservatives are attempting to undermine democracy. Overturning Roe vs Wade is simply step one in that process.