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USA: A “Woodstock” for Right-Wing Legal Activists Kicked Off the 40-Year Plot to Undo Roe v. Wade

Thursday 12 May 2022, by siawi3

Source: https://theintercept.com/2022/05/10/roe-v-wade-federalist-society-religious-right/?utm_medium=email&utm_source=The%20Intercept%20Newsletter

A “Woodstock” for Right-Wing Legal Activists Kicked Off the 40-Year Plot to Undo Roe v. Wade

Two hundred conservatives gathered at Yale Law School and coalesced into a group whose name was a joke: the Federalist Society.

Ilyse Hogue

May 10 2022, 7:45 p.m.

Influential right-winger and founder of the Moral Majority Paul Weyrich speaks at the annual Christian Coalition convention on Sept. 9, 1995, in Washington, D.C.. Photo: Andrew Lichtenstein/Corbis via Getty Images

In the early Reagan years, religious right movement leaders Paul Weyrich and Jerry Falwell knew that they could not solely rely on fickle politicians to implement their plan on a national scale. They didn’t have public opinion on their side — certainly not on legal abortion, nor on other elements of their plan to maintain their privilege and power. In order to implement their anti-democratic policy agenda and political philosophy, they needed the influence and power of a court system impervious to the will of voters. In that pursuit, an institution named the Federalist Society became their main vehicle.

In 1982, a group of conservative students and professors gathered at Yale Law School giddy with the opportunity offered by Ronald Reagan’s presidency. They spent the time discussing the perils of federalism, decrying the cultural influence of “coastal elites,” and listening to speakers who excoriated everything from New Deal politics to the legalization of abortion and its impact on “acceptable sexual behavior.” This relatively small crew of around 200 began the process of building a language and a culture around constitutional originalism, a designed approach of interpreting the Constitution very narrowly based on what the framers — all white, all men, all Christian — supposedly meant at the time they wrote it. They named the new group the Federalist Society as a bit of an inside joke. One of the organizers wrote to invite future Supreme Court nominee Robert Bork to help them, saying that the group “settled on Federalist Society as a name which I suppose makes up in euphony what it lacks in accuracy. If you have any brilliant ideas for a better name, however, that would be splendid.”

Legal scholars from Bork to future Solicitor General Ted Olson and future Supreme Court Justice Antonin Scalia — then a law professor just months away from his first federal judgeship — spent the weekend deep in conversation with adoring students. They were all convinced that there was a desperate need for an antidote to what they believed was insidious left-wing bias in law schools. One of the student organizers, Steven Calabresi, recalled that “part of Reagan’s policy was to build up forces in battleground nations in order to topple enemy regimes, and I thought of us as kind of the same equivalent in law schools.”

Perhaps no speech better articulated the overarching mission of this new endeavor than that of Bork, who had recently been appointed to the U.S. Court of Appeals for the District of Columbia Circuit by Reagan, when he told the gathered students that the courts were legislating with made-up constitutional rights:

This is a process that is going on. It happens with the extension of the equal protection clause to groups that were never previously protected. When they began to protect groups that were historically not intended to be protected by that clause, what they are doing is picking out groups that should not have any disabilities laid upon them.

Given that Bork had excoriated the Civil Rights Act as being grounded in “unsurpassed ugliness” and had opposed Griswold v. Connecticut, which granted married couples the right to contraception, those who read the speech reasonably concluded that Bork did not include historically marginalized groups as meriting protection. This seminal speech was later invoked in Bork’s Supreme Court nomination hearings and helped sink his chances at confirmation.

The weekend was a smashing success, with one prominent attendee comparing it to Woodstock for right-wing legal activists. The attendees left convinced that they were a silent majority, despite all evidence to the contrary. They believed that if they could make it socially permissible, many more students on college campuses would come out against liberalism. They emerged from the gathering energized to build the Federalist Society, a new effort to train and promote conservative-minded lawyers into prominent positions, with an eye toward installing far-right judges. Backed by a who’s who of right-wing money, the fledgling group quickly grew from a handful of grassroots chapters on college campuses into a million-dollar organization with headquarters in Washington, D.C., and at least 75 campus affiliates. One of its initial backers was the John M. Olin Foundation, the force behind the establishment of business-friendly law and economics programs at law schools throughout the country.

The Federalist Society scoped out the legal aspect of Falwell and Weyrich’s new strategy, and it found that abortion proved to be an excellent litmus test for likely members of the radical right. It turned out that young and ambitious legal minds who had an antipathy to Roe v. Wade were far more likely to be on board with the full agenda to assert control and maintain the status quo of right-wing power.

Edwin Meese, a top aide to Reagan, hired many “Federalists,” as they came to call themselves. Other GOP operatives helped young, newly graduated Federalist Society lawyers find jobs. The movement was riding high when Chief Justice Warren Burger informed Reagan of his intent to retire in 1986. Reagan, in his second term with no reelection to plan for and chastened by the backlash to his Sandra Day O’Connor Supreme Court nomination, did two things: He moved to elevate right-wing ideologue William Rehnquist to occupy the position of chief justice. Then he nominated Federalist Society superstar Scalia to replace Rehnquist.

Supreme Court Justice Antonin Scalia, center, speaks at the the Federalist Society half-day conference on “The Legacy of the Rehnquist Court” on Feb. 23, 2006, in Milwaukee. Photo: Darren Hauck/AP

The fight over Rehnquist’s ascension was bitter and divided. He had served on the court since 1972, having been nominated by President Richard Nixon. Rehnquist was a stalwart conservative cut from the same cloth as Weyrich. As a clerk for the Supreme Court, he had written a memo arguing against mandated school desegregation as the court considered Brown v. Board of Education. He consistently argued for prayer in school and capital punishment and against equal rights extending to gender and abortion rights — dissenting in the Roe case. His ascension was an affront to numerous causes and issues that Democrats had come to champion, and many fought his nomination bitterly. A witness testified to Rehnquist’s efforts to suppress minority voting in the early 1960s and, in a heated argument, Republican Sen. Strom Thurmond overruled the request of Sen. Ted Kennedy, D-Mass., and others demanding more transparency and fact-finding. Rehnquist was finally confirmed by a vote of 65-33, and the Democratic holdouts were defeated.

They were also exhausted. They voted to confirm Scalia the same day as the vote on Rehnquist. The Democrats had little fight left in them, and they had spent all of their political capital. Besides, the junior nominee was relatively unknown outside his own conservative legal circles, without an established paper trail on hot-button issues — a profile that became a staple of Federalist nominees. Scalia was confirmed unanimously by the Senate and went on to become one of the most right-wing justices in the history of the Supreme Court, upending norms by using oral arguments as political theater and writing scathing dissents in cases in which he was outnumbered.

The following year, Justice Lewis Powell — of the infamous Powell memo — announced his intention to step down, giving Reagan yet another opportunity to shape the court. Reagan drew again from the same well, nominating Federalist Society founding father Bork. The man who had used the original conference to decry “the gentrification of the Constitution” and to claim that states should be able to ban abortion and define “acceptable sexual behavior” was up. The new legions of Federalists were ecstatic about the possibility of having two of their own on the Supreme Court.

But Democrats and progressives were not going to be caught flat-footed again. Opposition to Bork’s nomination came fast and furious from civil rights and women’s groups. Kennedy, who led the opposition, responded to the nomination by saying:

Robert Bork’s America is a land where women are forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police would break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy. … President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

The extreme ideology on display at Bork’s initial Federalist speech came back to haunt him in the lengthy confirmation battle. Bork’s nomination was defeated in a bipartisan vote after months of bitter fighting. The seat ultimately went to Justice Anthony Kennedy in 1988. The Federalists were enraged and took a solemn vow to never let one of their own be sunk again.

Other groups were also hard at work using law and the courts to tilt culture in the direction of the radical right’s goals. In 1990, Christian televangelist Pat Robertson created the American Center for Law and Justice specifically to go head-to-head with the liberal American Civil Liberties Union. The ACLJ held a stable of attorneys ready to jump into high-profile battles worldwide focused on its version of family values. The organization, today led by former President Donald Trump’s personal attorney Jay Sekulow, has fought changes to the Kenyan constitution that would allow abortion, supported the government of Zimbabwe in its effort to criminalize homosexuality, and, closer to home, effectively blocked the construction of an Islamic cultural center near the World Trade Center site.

Jay Sekulow, chief counsel of the American Center for Law and Justice, introduces former Florida Gov. Jeb Bush during a presidential candidate forum at Regent University in Virginia Beach, Va., on Oct. 23, 2015.
Photo: Steve Helber/AP

In 1993, prominent evangelical Christian ministers founded the Alliance Defending Freedom to advance “religious freedom, sanctity of life, and marriage and family” through legal advocacy and funding court cases that tested legal precedent. In 1994, a Catholic lawyer named Kevin J. “Seamus” Hasson used seed money from the Knights of Columbus to round out these efforts with the Becket Fund, a nonprofit law firm solely devoted to promoting “religious liberty.” All of these groups shared a fundamental belief that their way of life was under attack and aimed to use the courts to impose a traditionalist, Christian ideology on the American public, echoing the demands for “religious liberty” that the radical right had first tested on its pro-segregation work in the 1960s.

They subsequently joined in common cause to choose a series of high-profile cases that they believed would cement the idea that liberal reforms around civil rights and gender equity amounted to an attack on traditional religion. In California, the ACLJ and its allies aggressively defended Proposition 8, the ballot measure designed to ban same-sex marriage in the state. Their rhetoric presented out-of-touch elites trying to foist a liberal agenda on the rest of the nation. In 2018, the Alliance Defending Freedom advocated in the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, which dealt with religious business owners’ ability to refuse service to people based on their sexual orientation, for similar reasons.

Perhaps the feather in the cap of the movement architects — some of whom did not live to see this day — was their victory in the 2014 Hobby Lobby Supreme Court case. President Barack Obama’s Affordable Care Act had mandated long overdue reform that contraception be covered by insurance at no extra cost to the employee. The owners of the craft supply chain Hobby Lobby sought to deny their employees this coverage, using their go-to claim that it violated their religious beliefs. Core to the plaintiffs’ case was the claim that the owners of Hobby Lobby believed that some kinds of contraception were “abortifacients.” This term was straight out of anti-abortion propagandist John Willke’s playbook. It suggested, with no grounding in medical fact, that birth control was tantamount to abortion. In a hotly contested 5-4 decision, the court ruled in favor of Hobby Lobby, opening the door to the erosion of all sorts of hard-won gains in the name of moral objection. Tellingly, the court’s majority wrote that the fact that birth control did not actually cause abortions was irrelevant in this context. For a violation of religious liberty to occur, the plaintiff must only believe that it could happen. Four of the five justices who ruled in Hobby Lobby’s favor had Federalist Society ties.

Related: The End of Roe: Saving Abortion Rights Means Taking Them Into Our Own Hands

The Hobby Lobby case was a massive triumph for the radical right, underscoring the effectiveness of the mutually reinforcing strategies. The movement had effectively used abortion as a Trojan horse to move the goalpost, limit access to contraception, and enshrine disinformation into the legal canon. For them, it was icing on the cake that the victory undercut the ACA, a crowning achievement for the much-loathed Obama administration. They had effectively reversed one of the most significant national steps forward for gender equity in decades.

In the first week of May 2022, a draft decision penned by Justice Samuel Alito was leaked to the press laying bare the intention of the majority of the Supreme Court to overturn Roe v. Wade. Many legal experts warned immediately that the draft was written to not only eradicate the current federal protection to abortion access, but also to lay the legal groundwork to undo a whole host of other rights guaranteed through the 14th Amendment protecting privacy and equality for all individuals.

Alito repeated a common refrain from right-wing leaders and judges all the way back to Bork that the original interpretation of the 14th Amendment was just wrong. The ground is being set to review and revoke so many hard-won gains, from access to birth control to marriage quality. Six of the current occupants of the Supreme Court were nurtured and backed by the Federalist Society: Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, as well as Chief Justice John Roberts. The architects’ plan has finally come to fruition, but this is only the beginning, not the end, of their quest to make sure we’re all living in a world of their creation.

This article was adapted from the bestselling book “The Lie That Binds,” by Ilyse Hogue and Ellie Langford.