‘It’s a Very Determined Power Play to Pack Our Court’
Janine Jackson: As we record on October 14, the Senate is still considering the nomination of Amy Coney Barrett to the Supreme Court. Barrett has a record of racism, supporting a kind of “separate but equal” arrangement in a case she saw on the Seventh Circuit; of opposing reproductive rights—she signed a letter lamenting the “barbaric legacy of Roe v. Wade,” and sought to overturn a Supreme Court precedent allowing states to regulate protesters blocking abortion access; and a record of favoring corporations over workers and consumers—76% of the time, according to one analysis. She ruled to help companies avoid paying overtime to contracted workers, to limit enforcement of age discrimination laws, and to restrict the government’s ability to protect against predatory debt collectors and companies that lie to the public.
Her record is why Barrett was selected to be forced on us, but the forcing is the story of the day. It’s important to know what Barrett stands for and would be likely to do on the court. But it’s kind of as if you were being bullied, and encouraged to devote attention to whether the bully is more likely to land an uppercut or a jab—when you would think the point would be to stop the bullying.
There’s a lot of consequential stuff happening right now, but a change on the Supreme Court is high on the list of lasting consequence, and deserves much, much more than a “Republicans vs. Democrats” style of reporting.
Lisa Graves is executive director and editor-in-chief at True North Research. She joins us now by phone from Wisconsin. Welcome back to CounterSpin, Lisa Graves.
Lisa Graves: Thank you so much for having me on. I really appreciate it.
JJ: Like I say, we should look at Barrett’s extremely conservative, anti-worker, anti-woman, anti-queer record; it explains why she’s in the chair. But to start the story now—This person is up for the court and some people like her but others don’t—is just looking at the shadows on the cave wall at this point, and missing the reality of what’s happening.
So let me just start by asking—it sounds rhetorical, but it’s not: Shouldn’t we get beyond thinking of Republicans who blocked Obama’s Supreme Court appointment, they said because of an approaching election, and now are steamrolling Barrett through because of an approaching election, shouldn’t we stop thinking of them as hypocritical? Wouldn’t it, in general, make more sense to see them as goal-oriented?
LG: That’s a great question and, also, I really appreciate the reference to Plato in your question. I think that this situation, it certainly is hypocritical, but I think it’s much worse than that. It’s a very determined power play to pack our Court, in order to try to reverse precedents that many Americans rely upon. And to do so in a very disingenuous way, by claiming this is merely about the rule of law—which it’s not, it’s actually about overturning rules of law—and by claiming that this person that they’ve chosen is merely going to interpret the law rather than make it, when she’s clearly been chosen for the opposite, with a view that she will unmake the law, unmake precedents.
So I really appreciated Senator Whitehouse’s comments yesterday, in which he talks about the fact that the hearing is very much like a puppet stage, in a way, because you can’t see from that hearing who’s pulling the strings behind the scenes, who’s moving the levers. And he tried to shine a bright light on that, in talking about how she was chosen, and the dark money forces that have been behind choosing people like Amy Barrett for the Court, and also then teeing up cases for those judges to rule upon, in favor of many of the same interests that are funding the confirmation process to get these radically reactionary judges put on our court for lifetime terms.
JJ: Yeah, it seems so important to tell the story simply: Rich people are buying the institutions that will serve their interests, even though they are institutions that we think of as serving the public interest. So let me dig you a little into what the senator was talking about, and ask you directly: Who is Leonard Leo?
LG: Leonard Leo was previously the executive vice president for the Federalist Society, which describes itself as a group of conservative and libertarian lawyers and law students. But really, it’s been a major vehicle that’s been used by the Republicans in the selection process for judicial nominees.
And Leonard Leo is someone who was exposed last year by the Washington Post, which did a deep investigation and found that he was at the center of a network of money that amounted to more than $250 million, over the course of a couple years, to block President Obama’s last nominee to the Supreme Court, Merrick Garland, in 2016, and to push through Neil Gorsuch as well as Brett Kavanaugh for the bench, nominees of President Trump, and also to push through many judges in the federal courts, the lower federal courts, as well as on state supreme courts.
So who is Leonard Leo? He’s someone who has really been orchestrating this campaign to take over our courts, to capture our courts. And in that Post story, they quoted him, in a closed-door room to funders, talking about how through these appointments, we stand at the precipice of what he called a “revival” of what he described as the “structural Constitution.” And he said that the people in that room, no one had seen the type of revolution in the law that was about to unfold, due to these appointments, and this was before Judge Barrett was nominated.
We’ve already seen that revolution underway. It’s the revolution that really destroyed the power of the Voting Rights Act. It’s the decision by the court to unleash this massive dark money into our political system through Citizens United. And it’s also the decision to have the Supreme Court tell lower courts that they cannot intervene in extreme partisan gerrymandering. That’s just the beginning of this revolution that Leonard Leo’s orchestrating.
But for whom, as you asked? Well, we know that in some of these instances, it’s been a single donation from one entity or person, for example, $17 million from one group, passed in almost its entirety to another group, called the Judicial Crisis Network, that then spent money to try to block President Obama’s nominee and push in someone who they thought would rule favorably to them.
So this is a way in which, as you point out, a handful of extremely rich people who are not known to us, not disclosed to the American people, are almost buying seats. They’re having the effect of basically having Leonard Leo choose who Donald Trump chooses from, like being the chef at a restaurant. He decides who Trump can choose from.
And, quite frankly, we know definitively that Leonard Leo began trying to put Amy Barrett on the circuit court, and then ultimately on the Supreme Court list, in the spring of 2017. He’s not doing that because there’s a belief that she’s going to be a fair and independent judge; he’s doing that because there’s a belief that she will decide in their favor on cases that they want overruled. And that includes not just Roe v. Wade and cases on the rights of LGBTQ Americans, but also, as you point out, cases to undermine our ability in a democracy to regulate corporations. And so that’s his agenda, and there’s more about him I’d love to tell you about, if you have a few minutes, but that’s the sort of baseline of who he is.
JJ: Well, absolutely. And let’s just take it from there. I mean, you’re laying it out: If you want to stay in power, even as you represent, in yourselves and in your ideas, a minority of the population, well, checks and balances are not your friends. And yet here are a lot of us, stuck in eighth grade civics class like mugs, like, Uh, I don’t think they’re supposed to be doing that, you know, or Well, we’ll rely on their civility that they won’t do it next time. It’s kind of silly, and folks are cottoning on to the silliness. Forget a knife, it’s like we’re bringing a furrowed brow to a gunfight.
And that’s why it’s no longer, as of recently, outrageous to talk about expanding the Supreme Court, which you have noted is already not a democratic institution, but to talk about expanding it, because it’s unreflective of the country that it’s supposed to serve. Folks are calling it “packing”—and I think media critics have told folks that that’s a prejudicial way to phrase it—but expansion of the Court, is that one of the responses that we could look to?
LG: Well, I think we have to look at all options and, quite frankly, what’s happening with the Supreme Court and this appointment process of these Trump nominees is particularly unseemly. You have a situation where Trump has chosen Leonard Leo to be a so-called volunteer adviser. In the year 2018, when he took a paycut of nearly $100,000 from the Federalist Society to spend time as a free adviser to Trump and to these other outside groups, he suddenly paid off the mortgage on his house in Northern Virginia, and literally on the eve of the confirmation vote of Brett Kavanaugh to become a justice—this was two years ago last week—he closed on a $3 million mansion in Maine across from the yacht club. So suddenly this man, who filed no financial disclosure forms because he’s not a federal employee, but who has this nearly decisive role with this president in helping determine who gets chosen from for the Supreme Court, is flush with cash. Whose cash?
You know, I think there’s a cloud hanging over all of these nominations, but it’s beyond these nominations, what’s been happening to our Court, because you also have people who’ve been chosen on this claim that they’re going to be so-called “originalists” or “textualists.” You know, these are the same people that have rejected an actual textual interpretation of Constitution, as with the Voting Rights Act. To say that we do not need the protections of the Voting Rights Act in the year 2016, basically, or this past decade, is to be myopic. And you can see that same sort of myopic narrowness in the answers that Judge Barrett has been giving before the Senate.
But the reality is that in this country, we had only a very brief period in the ’50s and ’60s when there were actually judges on the Supreme Court who were willing to fully interpret the terms of that document, including things like that if you have a right to counsel, that means you actually have a right to counsel, and that if we have a representative democracy, that that means “one person, one vote,” that people have a say, that all Americans do, not just a few Americans do.
And case after case, the court finally breathed life into our Constitution, which had been really curtailed by some of the same types of judges that Leonard Leo wants to take us back to, a hundred years ago, to roll back 100 years of legal precedents.
And the other part of that story is that, quite frankly, the court, as you point out, is already packed. This Supreme Court in my lifetime, in the past 50 years, has had 15 nominations confirmed that were made by Republican presidents, and only four that were named by Democratic presidents; 15 to four.
JJ: So we’re really talking about repacking.
LG: Well, unpacking it. And, quite frankly, the other thing that’s happened that’s really astonishing is that this court has a jurisdiction that’s almost entirely discretionary. Under the Constitution, there are a very narrow category of cases that the Supreme Court must hear, like disputes between states, which are actually pretty rare. The entire rest of its docket is entirely a matter of choice, if four judges on that Supreme Court decide they want to hear a case—which basically means they think that they have five votes on a nine-person court, a majority, to overturn it.
What’s happened is that these judges, who’ve been mostly Republican appointees, have been picking and choosing which cases they want to change our laws in, including anti-corruption laws, the campaign finance laws that were struck down in Citizens United, including the Voting Rights Act, which was the decision that the court made in the Shelby case, and more. And so you have these judges choosing, specifically, totally in their own discretion, which areas of law they want to move in the direction they want to move it. And that’s a problem.
But also, this court has nearly 9,000 appeals a year, and it only considers and issues decisions in about 80 of them. So it’s handpicking 80 cases, or it’s going to “resolve a conflict” or move the law, and the cases it’s choosing are ones that advance the partisan political agenda of the party of the president who nominated these judges. And they are moving in a regressive way to strip away Americans’ rights, including our rights to regulate corporations, and the rights for us to have agencies that regulate those corporations, as well as the very essential tools in our democracy.
JJ: There’s a gap between their agenda and their framework of what they want to do, and the public understanding of it, and media play a role there. In terms of issues, I would argue with passion that the day that we recognize that abortion is an economic issue, and stop cordoning it off as culture war fodder, is going to be a great day. But I understand the power of saying, “Hey, fight over reproductive rights, because we know that’s hot button, while we quietly cut off every other right you have,” and then media step in and say, “Well, this one’s controversial, and this one we won’t even talk about.” So the way our attention is directed as a public influences whether we can actually see clearly that agenda that you’re discussing.
LG: That’s exactly right. It’s misdirection; it’s sort of a sleight of hand. And, in fact, the abortion issue is very fundamentally an economic issue, and it’s also just a human autonomy issue, the ability to determine your own destiny by having control of your body. But what’s happened, as you point out, is that this issue is described in the press as a sort of social or cultural war, and the focus on that has allowed them, almost like the camel’s nose under the tent—
JJ: Right.
LG: —to move through an agenda that then the press largely is not reporting on, or not reporting on it for what it is.
And you can see what it is, in part because Charles Koch, one of the richest men in the world, the billionaire who leads Koch Industries, who has spent hundreds of millions of dollars of his own money, and money of his fellow billionaires, to try to distort our democracy and our elections, is a big player in this fight over the Supreme Court and who gets on the court. He claims to be pro-choice, but it doesn’t matter, because his real agenda is about stripping our power in our democracy to control corporations, to have controls over them.
As Nancy MacLean wrote about in her book Democracy in Chains, when you hear them talk about “limited government” or “limited constitutional government,” that’s a fancy way of saying “limited democracy.” It means removing from “We the People” the power to make decisions over things like corruption in our elections and how to regulate it, as well as things like how we’re going to mitigate climate change, and whether this court will issue any rulings allowing the federal government to have any jurisdiction over carbon under the types of arguments that Charles Koch has been funding.
And so, it’s a true crisis in our democracy, and our economy. And the debate has been largely twisted into this narrow version of a culture war, when it’s actually about a much broader revolution, a regressive revival—a “revival,” in the words of Leonard Leo—to roll back a century of precedents to before the New Deal, basically, potentially to roll back our worker rights, civil rights and so much more.
JJ: You know, I thought I’d need to bring it back to this. I don’t think I do, I’ll say it anyway. But I would say that sometimes the conversation, even when it’s righteous, can get over-abstract. We get riled up about the process, or even about “democracy,” but it’s not a word on a page that’s being endangered here; democracy isn’t going to die of Covid, or of an unsafe abortion, or of workplace hazards, or of a nursing home malfeasance where they couldn’t have a class action suit. That’s going to be human beings.
I just wish media would take it out of, Well, if you’re a Democrat, you might think…. Like the New York Times’ perfectly good piece, but it said, you know, this ramming through of this confirmation is deepening anger on the left. And I think, if we can’t take it out of that partisan frame, we’re really misunderstanding the importance, the deep importance, of the moment that we’re living through.
LG: I agree with you, and your description is so powerful and evocative. In my work, I’ve seen some of these groups that are funded by Charles Koch push measures, for example, to say that you can’t get emotional damages—pain and suffering damages—except for as a multiplier of your compensatory damages, and apply that rule to nursing homes. People who do not have lost wages, who do not have compensatory damages, basically saying that you can only recover limited pain and suffering, based on how much money you make.
And you can see that in other ways in the Supreme Court, where this court has basically elevated the rights of corporations over the rights of ordinary human beings, including asserting a religious right of corporations that trumps the actual rights of ordinary human beings. In some of these cases about the Affordable Care Act, it’s about saying that a corporation has some sort of religious belief that trumps a woman’s right to access birth control, an IUD; in other cases about the ACA, it’s about a very narrow view, or an expansive view in some ways, of corporate rights over an individual’s right to access just the basics of affordable healthcare to save their lives.
And so these are all issues about our rights and our lives as human beings. And, increasingly, we have a court that is seeing those issues in a very narrow way for humans, but a very expansive way for corporations, which really are artificial creatures that we, as human beings, have the right to control. And so the stakes are high and, as you point out, unfortunately, the media often talk about these things in a very abstract way, and do not talk about the real-world consequences for ordinary people, and there are very huge real-world consequences for ordinary people.
But I’m hopeful. I’m hopeful that seeing this unfold right now will help awaken people even more to the need for substantial reforms to protect the rights of human beings in this country, and to understand the humanity that our law ought to reflect, versus this very narrow, corporatist view of our country.
JJ: Well, I’m hopeful right along with you.
We’ve been speaking with Lisa Graves. She’s executive director and editor-in-chief at True North Research. They’re online at TrueNorthResearch.org. Lisa Graves, thank you so much for joining us this week on CounterSpin.
LG: Oh, thank you so much. It’s a joy to hear your voice and your analysis, and really be in conversation with you.
Janine Jackson is FAIR’s program director and producer/host of FAIR’s syndicated weekly radio show CounterSpin. She contributes frequently to FAIR’s newsletter Extra!, and co-edited The FAIR Reader: An Extra! Review of Press and Politics in the ’90s (Westview Press).
Lisa Graves leads True North Research. She directs iwfexposed.org and KochDocs.org as part of her work at True North and curates KochDocs, which collects documents about Charles Koch and his empire, with Connor Gibson of Greenpeace.