The Scheme Speech #14: The Attack on Roe
Madam President, I am here for the 14th time to keep unmasking the scheme to control our Supreme Court—a scheme that is now poised to destroy a woman’s right to make her own reproductive health choices and to smash foundational Supreme Court precedent to get there.
Last week, Politico confirmed a fear that many of us have had for years. We now see that the Supreme Court has at least five votes to eradicate Roe v. Wade, one of the most important decisions in the Court’s history. For nearly half a century, women in this country have relied on Roe’s recognition that our constitutional right to privacy includes the right to decide when to have a child. This is one of the most profoundly personal and life-changing decisions anyone can make. Now, the draft opinion from Justice Alito shows in black and white how the Court plans to steamroll over that right—and afterward probably many others that are anchored in that same American right to privacy.
If Justice Alito’s draft opinion becomes law, women in this country will have a well-established constitutional right stripped away. That has not happened before.
Already 13 States have trigger bans that will snap into place the moment Roe is overturned, and 13 more are expected to ban or severely restrict abortions in the future. And it won’t stop there. For example, Louisiana’s Republican lawmakers just advanced a bill that would criminalize abortion as homicide and allow prosecutors to charge women seeking abortions as criminals.
In the week since the news broke, a lot of Americans have expressed just how strongly they disagree with the path this Court is headed down. They are disappointed, stunned, outraged, and they are right. When you take a second to remember what these same Justices told us in the past about Roe, you can be doubly outraged. I know Democrats on the Senate Judiciary Committee are. We saw the last three Republican Justices come through that committee and look us in the eye as we asked what they thought about Roe. Let’s be clear: Each of these Republican Justices came before the committee; each was specifically asked about Roe v. Wade.
Here is what they told us:
Neil Gorsuch: “Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed.”
Brett Kavanaugh: “It is settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.”
Amy Coney Barrett: “Roe is not a super-precedent because calls for its overruling have never ceased. But that doesn’t mean that Roe should be overruled. It just means that it doesn’t fall within a small handful of cases like Marbury v. Madison and Brown v. Board that no one questions anymore.”
Add in Alito himself: “Roe v. Wade is an important precedent of the Supreme Court.”
Yet here is what Alito’s draft opinion says: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Well, there was no mention of ‘‘egregiously’’ at the confirmation hearings. There was no mention of ‘‘wrong from the start’’ when we asked about Roe. Does anyone seriously think that this was a sudden, new epiphany that came over the Federalist Society Justices in the last few weeks? None—none—managed to mention their belief that Roe v. Wade was ‘‘egregiously wrong from the start.’’ Whether that was outright lying or confirmation hearing hide-the-ball tricks, it is dishonorable, and it was dishonest.
If that is what you believe as a judge, own it. Don’t keep your views secret until you have the votes to make your move. That may be clever politics, but it is politics, not judging. It is a big tell about this captured Court.
Since the news broke, Republicans have tried desperately to change the subject. The minority leader think the real outrage is not the obliteration of women’s rights but that we found out about it a month early. He says: “This lawless action should be investigated and punished as quickly as possible.”
Other Republicans called for the FBI to prosecute the leaker criminally or civilly. Some even purport to identify the leaker.
Chief Justice Roberts called the leak ‘‘a singular and egregious breach of . . . trust’’ and an ‘‘affront to the community of public servants who work here.’’
Look, as to the leak, Mr. Chief Justice, go for it. Investigate away. Send the Marshals. But to my Republican colleagues, sharpening their pitchforks and calling for criminal prosecution: Spare me the high dudgeon. Spare me the faux outrage. As former White House Ethics Counsel Walter Shaub explains, ‘‘[T]he Supreme Court has no code of ethics—which is the place you would normally put a ban on misusing nonpublic information. [So] what crime would [the] FBI . . . investigate?’’
As for the ‘‘affront’’ to the institution, I suggest everyone consider the real rot at the core of the Supreme Court.
If you care about the independence and integrity of the Court, it is not this leak you should be outraged about; it is that for the first time in the history of the U.S. Supreme Court, the selection of Supreme Court Justices was farmed out, handed off to a private organization, and Justices were selected in some backroom with zero transparency into how the selections were made, how the lists were assembled, and zero transparency into the dark money that flowed into that private organization while the selections were being made. Who paid what to have a seat at the Federalist Society’s judicial selection turnstile?
We know from new reporting that it was the Federalist Society’s Leonard Leo who ‘‘laid out [the] road map for Trump on the Federal court system’’ with the goal of ‘‘transforming the foundational understanding of rights in America.’’ So much for balls and strikes, huh?
Leo came up with the list of ‘‘judges that would please the Republican base’’ from among what he called the ‘‘decades of conservative lawyers in the pipeline.’’ He became a ‘‘team’’ with Don McGahn, Trump’s White House Counsel, and Mitch McConnell to ‘‘keep the judicial nominations effort moving.’’ It was Leo who took to the White House where he had ‘‘extensive access,’’ to the revised nominees list that included Kavanaugh and Barrett. The picks were made by advisers, said Senator McConnell, with Trump’s role merely ‘‘signing off on them,’’ and he ‘‘never veered from the lists of candidates suggested by Leo and others.’’
Again, this was not about calling ‘‘balls and strikes.’’
If you want ‘‘to have the longest possible impact on the kind of America you want,’’ said Leader McConnell, ‘‘you look at the courts.’’ That is their goal, to change the kind of America we have—more accurately, the kind of America the far-right megadonors want, I would say.
Trump noticed. ‘‘Mitch McConnell. Judges. Judges. Judges. The only thing he wants is judges,’’ said Trump.
We know this happened because the Trump White House, right up to Trump himself, said so. Trump’s own White House Counsel joked that he ‘‘insourced’’ the Federalist Society into the selection process. As one prominent conservative explained, this was an ‘‘enterprise’’—an ‘‘enterprise of building a Supreme Court that will overturn Roe v. Wade.’’
Once the anonymous donors behind the Federalist Society Justice-picking operation got the nominees they wanted, then came the dark money front groups rolling out ad campaigns to help ram those Justices through the Senate. Anonymous donations of $15 million, $17 million, $19 million went to phony front groups like the so-called ‘‘Judicial Crisis Network’’ to promote those backroom-chosen Federalist Society nominees.
Then, once the Federalist Society Justices were stacked onto the Court, flotillas of dark money front groups appeared before them, both as litigants and as amici curiae, orchestrated by the dozens in little groups to signal the Republican Justices how to rule. And it is pretty likely that the same donor network was behind the nomination turnstile, the propaganda machine, and the flotillas. And by the way, they are winning—winning—with these handpicked Justices at an astonishing rate—80 to 0 by one count.
We see the results of the scheme in this very case. The sponsors of the Mississippi abortion law admitted that they passed the law because they thought the new Supreme Court Justices would uphold it, just like a new legislative body had come in. After Amy Coney Barrett’s nomination was rushed through the Senate, the State of Mississippi even changed its position to ask the Supreme Court to overrule Roe in its entirety. It all smells of ‘‘fixery.’’ No wonder Justice Sotomayor asked during oral argument whether the Court will ‘‘survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?’’
So, if colleagues want to talk about demolition of the integrity and independence of the Court, then they better have something to say about turning the Supreme Court over to dark money special interests, about special interests capturing the Court to serve their rightwing ‘‘enterprise.’’ A captured Court, that is delivering for the special interests that stacked it and helping to keep their secrets has had its integrity and independence pretty well demolished already.
The last gasp of the scoundrels is to pretend that it is Democrats calling out this dark money mess who are the ones undermining the integrity of the Court. They even point to a brief of mine where several colleagues and I quoted to the Court a poll showing that a majority of Americans feel the Court is ‘‘mainly motivated by politics’’ and that it ought to be ‘‘restructured in order to reduce the influence of politics.’’
That is a poll, not a threat.
And the Court better start paying attention to why the American people feel that way, rather than quarreling that anyone that is ‘‘threatening’’ or ‘‘bullying’’ the Court by pointing that out.
By the way, if threatening is what you want to fuss about, have the decency to be consistent. Here is a quote from FOX News’ host Laura Ingraham discussing this actual abortion case after the oral arguments were done. Forgive my bad language to the pages who are here. I am actually quoting her verbatim.
“We have six Republican appointees on this Court after all the money that has been raised, the Federalist Society, all these big ‘‘fat cat’’ dinners. I’m sorry. I’m pissed about this. If this Court with six Justices cannot do the right thing here, the constitutional thing, then I think it’s time to do what Robert Bork said we should do, which is to circumscribe the jurisdiction of this Court, and if they want to blow it up, then that’s the way to change things finally.”
Far from pushing back on that threat to ‘‘blow it up’’ and ‘‘change things finally,’’ the Senate colleague she was talking to said: “. . . in a heartbeat.”
When you are treating an accurate quotation of a poll as a threat and ignoring a public threat to blow up the Court and change things finally—after all the ‘‘fat cat’’ money spent on the Federalist Society, no less—forgive me for doubting your sincerity.
As Senator Padilla said in the Judiciary Committee last week, have the decency to be consistent at least.
Justice Alito spent over 98 pages trying and failing to justify overturning the decision protecting these rights— overturning a decision he told the U.S. Senate was an ‘‘important precedent of the Supreme Court.’’
His opinion isn’t persuasive to me at all as it reads as snide and cruel, but that is not going to stop these Justices from trying to throw us back into an age where women aren’t free to make their own choices about their own bodies and their own futures. It looks like the fix went in on that a while ago, and we just weren’t told about it in the hearings.
So, tomorrow, the majority leader will bring before this Chamber legislation to protect those rights nationwide, to protect that freedom across this country, and I am eager to vote for it. We have got to stand against this assault on women’s constitutional rights, and I hope some Republican colleagues will join us.
Particularly, I hope, in the weeks and months ahead, that we can find ways to unravel the dark money scheme that has brought this Court and our country closer to the brink because the Court that dark money built—it is not done. It is not done trying to reshape America against our will to suit the extreme ideology of the rightwing billionaires behind the scheme.
There is one good thing in all this darkness, and that is that the American people see this nonsense and have had enough.
I yield the floor.