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How conservatives worked for decades to fill courts with anti-abortion rights judges

MICHEL MARTIN, HOST:

While the country continues to deal with the fallout from the Supreme Court decision to overturn Roe, we wanted to look at how the court itself arrived at this moment. The movement to overturn Roe was guided by conservative activists and Republican Senate Leader Mitch McConnell, who helped usher in a record number of federal judges during the Trump years. And on the nation's highest court, all three justices appointed by former President Trump voted to overturn Roe, delivering on a promise he made as a candidate.

To learn more about how we reached this point, we called David Kaplan once again. He is a former editor at Newsweek. He's written about the court for years, and he's the author of "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." And he's with us now once again. David Kaplan, welcome back.

DAVID KAPLAN: Hi there. Good to be back.

MARTIN: In recent years, conservative judges' hostility toward Roe has become - do you think it's fair to call it a litmus test among conservatives for being appointed to the high court? But this wasn't always the case. I mean, two of President Reagan's appointees and one appointee of President George H. W. Bush voted to protect Roe in 1992. So when did we see that this - it seems to be a litmus test - became a litmus test for conservative justices, that seemed to be overturning Roe became the goal?

KAPLAN: I think it's been the goal almost since the inception. Republicans have just gotten better at it. You know, the goal when Sandra Day O'Connor was appointed was to have a woman on the court. And there there were a limited number of choices if you wanted somebody who was anti-Roe. Anthony Kennedy, you'll recall, only came after Robert Bork and others fell through. But I think they've gotten better at the game, and under Trump, the Federalist Society vetted candidates brilliantly.

MARTIN: The Federalist Society, for people who don't know, is a conservative legal advocacy organization. How did they gain so much influence over who is appointed to the courts?

KAPLAN: Well, for 40 years, largely as an outgrowth of Roe, the Federalist Society has been gaining sway and power in American law schools. And then as those lawyers entered the legal profession and got on the federal bench, they achieved more power. Don McGahn, the former White House counsel under Trump, decided to outsource the job of finding nominees to the federal courts, including the Supreme Court, to the Federalist Society. In the past, you might rely on outside advisers and whatnot. In this case, the task was sent out for others to then advise the White House.

MARTIN: Now that Roe has been overturned, what's the next project?

KAPLAN: Well, we'll see. Justice Thomas, of course, has said the next project is same-sex marriage, contraception, gay rights generally. I think the main projects, though, of those five conservative justices, along with the chief justice, is to continue to whittle away at voting rights and probably to eliminate all campaign finance regulation and, perhaps most importantly, to limit, to reduce the power of federal agencies. For conservative Republican elites, that destruction of the federal administrative state has long been the goal, far more than even Roe v. Wade.

MARTIN: Former President Trump appointed 54 appellate judges during his four years in office. That's just under a third of all appeals court judges. In the process, he flipped three of the country's 13 appeals courts, and by that, I mean that his nominees dominate. These are the final stop for the vast majority of cases. And does this decision in Dobbs tell us about where the courts are headed?

KAPLAN: Well, Dobbs doesn't tell us where the lower courts might be headed. Dobbs is a Supreme Court decision. But those lower courts, we've now seen for several years, are heading in a radically conservative direction. And one should put conservative in the air quotes. These are not judges who believe in the old-style conservativism - judicial restraint, court should do less, trust the democratic political branches of government. These are judges with an agenda.

MARTIN: Which is what?

KAPLAN: Well, on this or that wedge issue, as well as on curtailing the power of the federal administrative state, or on voting rights, or on campaign finance - to undo what, by and large, has been the norm for decades. And that project is working, and the left just isn't particularly good at responding.

MARTIN: So before we let you go, I just wanted to ask you about the chief justice, John Roberts. The discussion about the court as a political institution have become commonplace. I would - I'm not sure when you you would trace that to. I mean, some people might argue it's when the court struck down key provisions of the Voting Rights Act nearly a decade ago. Does that matter? I mean, it seems to me that the court's reputation as an apolitical institution is something that the chief justice seemed to care about. But has that - I don't know what else to say. Has that train left the station, and does that matter?

KAPLAN: The case that you refer to, about Shelby County almost a decade ago, is certainly important. But I go back a decade - more than a decade earlier - Bush v. Gore, when the court intervened in a presidential election that Congress could have and should have resolved. One can feel bad at a certain level for the chief justice. A couple of years ago, before Amy Coney Barrett came to the court, he was the median justice. It truly was the Roberts court. Important decisions pivoted around him. This Dobbs decision overturning Roe v. Wade would have pivoted under him, and Roe would have survived.

And - but when Justice Ginsburg died, Roberts' position totally changed. He's irrelevant now. And you look at the makeup of the rulings this week, he's alone in the middle. You also have to wonder about poor RBG, because she got a lot of criticism in 2013 and '14 for not leaving when Obama was president. Democrats still controlled the Senate. And she many times said that she didn't like the pressure that had been put on her to leave. She rightly assumed that a Democrat would win in 2016, would win the White House. They didn't. She died on the eve of the 2020 election. And in some respects, the Dobbs decision, unfortunately, is courtesy of Ruth Bader Ginsburg. It's hard to say that, but it's absolutely true. But for her decision, Barrett wouldn't have been on the court, and you wouldn't have had this ruling.

MARTIN: That's David Kaplan. He's a former editor at Newsweek, and he's the author of "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." David Kaplan, thank you so much.

KAPLAN: Thank you. Transcript provided by NPR, Copyright NPR.