With Senator Mitt Romney’s announcement that he supports moving forward with the confirmation of a new Supreme Court Justice, Donald Trump and Mitch McConnell have secured the Republican votes they need to begin the process of filling the seat of the late Ruth Bader Ginsburg. Trump and McConnell now stand poised to create a conservative majority on the Court that could last decades. The moment marks a triumph for the Federalist Society, a conservative and libertarian legal group that has worked since the nineteen-eighties to recruit ultra-conservative lawyers to serve as judges. Republicans face a potential backlash in November, but a dramatic and historic change in American democracy and jurisprudence is under way that could vastly increase the power of the Presidency, corporations, and the wealthy, and curtail, or bring to an end, abortion rights, Obamacare, and expansive voting rights.
Four Supreme Court Justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—are seen as closely aligned with the group’s legal philosophy. A fifth Federalist Society-friendly Justice would constitute a majority. The two federal judges currently short-listed to be Trump’s nominee, Amy Coney Barrett and Barbara Lagoa, are, respectively, a former and a current member of the group. Barrett, a U.S. Court of Appeals judge and a former Notre Dame Law School professor from Louisiana, served as a law clerk to the late Justice Antonin Scalia, who is considered a hero by the group. Lagoa, a Cuban-American U.S. Court of Appeals judge and former State Supreme Court justice from Florida, is married to a lawyer, Paul C. Huck, Jr., who is known as the “godfather” of the Federalist Society in Miami.
Both potential nominees are popular with conservatives. Choosing either of them would allow Trump to inflame the culture wars for weeks, warn of the dangers of a “socialist” Supreme Court if Joe Biden is elected, and shift media coverage away from his mishandling of the coronavirus pandemic, as the number of Americans who have died of COVID-19 surpasses two hundred thousand.
Barrett gained fame among conservatives after Trump nominated her to her current court seat, in 2017, and, during her confirmation hearings, Senate Democrats clumsily questioned her religious views. Barrett, an observant Catholic, had several of her seven children, two of whom are adopted, sit behind her in the chamber. When Senator Dianne Feinstein called Barrett “controversial,” and implied that her personal religious beliefs would influence her rulings on abortion rights, Barrett calmly said that they would not. That brief exchange made her a folk hero among conservatives who feel that religiously observant people are besieged and discriminated against by liberal élites.
Barrett was confirmed largely along party lines; since then, her rulings have won wide approval from conservatives. In a 2019 dissenting opinion, Barrett wrote that the government should be able to strip a Wisconsin man who pleaded guilty to mail fraud for a Medicare scheme, a felony, of his right to vote but not his right to own a gun. During her three years on the federal bench, Barrett has also ruled that job applicants cannot sue employers whose policies have a disproportionately negative impact on older workers and that judges should not stop the deportation of immigrants who say they face torture at home.
Lagoa’s rulings as a federal appeals-court judge, in Florida, have also cheered conservatives. This month, Lagoa joined a majority federal appeals-court decision that upheld a law, enacted by Republicans in the state legislature, which bars people convicted of felonies from voting unless they have paid all fines, restitution, and fees imposed at their sentencing. That requirement limited the impact of a 2018 statewide referendum that restored voting rights to that population, who, under the state constitution, had been banned from casting ballots for life. The new law is expected to prevent as many as eighty-five thousand people who had registered to vote from casting ballots this November. As my colleague Dexter Filkins recently wrote, Lagoa and a second judge on the court had both been appointed by Florida’s Republican governor, Ron DeSantis, to the State Supreme Court. While serving on that court, they had participated in oral arguments that resulted in an advisory decision supporting DeSantis. By legal custom, they should have recused themselves from the federal appeals-court ruling. They declined to do so.
In other rulings, Lagoa sided with big business, by limiting the options of homeowners facing foreclosure, blocking an effort to create a higher minimum wage in Miami, and ruling against employees who filed lawsuits against Uber and Caterpillar. In a 2019 decision, Lagoa ruled that DeSantis had the power to fire a democratically elected county sheriff over his handling of the Parkland school shooting. The sheriff argued that only voters can remove an elected official from office and that the ruling dangerously expanded the governor’s powers.
Barrett’s and Lagoa’s decisions and legal writings place them squarely in the legal-philosophical camp of the Attorney General, William Barr, a former Federalist Society member, a law-and-order hard-liner, and a supporter of expanding the power of the Presidency in ways that would alter the American system of three coequal branches of government. Liberal legal scholars say that Barr’s views of executive-branch powers, if enacted, would create a President who was more like a monarch.
Two days before Ginsburg’s death, the Wall Street Journal reported that Barr had suggested to federal prosecutors that they consider bringing sedition charges against protesters who engage in violence. Such a heavy-handed response to demonstrators is highly unusual and alarmed some officials on the call. The proposal by Barr, who has repeatedly exaggerated the role of Antifa in protests, was reminiscent of Attorney General John Mitchell, who, during the Nixon Administration, called antiwar protesters “militants,” prosecuted them for conspiracy, and helped sway millions of Americans to vote for Nixon.
Barr, in a speech last Wednesday night to a small conservative college, praised a dissenting Supreme Court opinion in the 1988 case Morrison v. Olson, written by Scalia, that argued that independent counsels (such as Robert Mueller) are unconstitutional and do not have the right to investigate Presidents. Barr failed to mention that every other Justice who heard the case, including five appointed by Republican Presidents, voted against Scalia, 7–1, and found that independent counsels are a proper check on abuse by Presidents and their aides. Barr then called for an increase in the involvement of the President and his appointees in federal criminal prosecutions. Contradicting forty years of bipartisan legal norms, the Attorney General argued that elected politicians, not nonpartisan civil servants in the Justice Department, should closely control criminal prosecutions. He claimed that career prosecutors sometimes become “headhunters,” who are “consumed with taking down their target,” and he said that “political winners ritually prosecuting the political losers is not the stuff of a mature democracy.”
What Barr failed to note was that he himself is busily politicizing the Justice Department and using it to boost his President’s reëlection effort in ways not seen since Mitchell and Nixon. In a question-and-answer session after his speech, Barr called pandemic shelter-at-home orders “the greatest intrusion on civil liberties in American history” since slavery. On Monday, he accused Democratic mayors of allowing “anarchy” to take hold in their cities, and threatened to withhold billions of dollars in federal funding from them. The mayors of New York, Seattle, and Portland, Oregon, responded that, under the Constitution, Congress, not the President, controls funding. Trump, for his part, has repeatedly called for the jailing of his political rivals, including, to name just a few, Biden, former President Barack Obama, New York Governor Andrew Cuomo, former national-security adviser John Bolton, former F.B.I. director James Comey, and, of course, Hillary Clinton.
In the weeks ahead, Trump and McConnell will argue that they need to push through their Supreme Court nominee to bring order to the United States. And Barr will continue to claim that autocrat-like Presidential powers are needed to counter leftist insurrections that do not exist. But it is the President, the Senate Majority Leader, and the Attorney General who are dangerously exacerbating tensions, stoking division, and sowing instability.
