While all eyes remain on the presidential election in November, Donald Trump has already secured a multigenerational victory with his radical reshaping of the judicial branch of government. In part five of “American Mythology,” we look at how the Trump administration has outsourced hundreds of federal judicial appointments to the right-wing Federalist Society and Heritage Foundation. The appointments made during the past four years will impact almost every aspect of life in the U.S.: health care, marriage equality, worker’s rights, freedom of speech and press, guns, racism, women’s rights, war powers, and others. We dig into the ideologies and organizations at the center of Trump’s judicial strategy, the influence of the Koch brothers, and the corporate and social agenda the GOP wants their new judges to impose. The stakes go well beyond the 2020 election: The impact of an extreme right-wing Supreme Court majority not only threatens reproductive rights, it could shut down any progressive attempts at lawmaking for decades to come. In some ways, confirming Judge Amy Coney Barrett is more important to the GOP than Trump winning reelection.
Jeremy Scahill: This is Intercepted.
I’m Jeremy Scahill coming to you from New York City and this is part five of an Intercepted special, “American Mythology: The Presidency of Donald Trump.”
Donald Trump: This president, whoever it may be — hopefully it’ll be me — is going to replace two, three, could even be four, and it could even be four Supreme Court judges. I mean, perhaps more than anyone. I even heard the scenario it can be five.
Jeremy Scahill: When campaigning for president in 2016, Donald Trump vowed that if he won the presidency, he would appoint judges to the courts who were staunchly anti-abortion and pro-gun. Trump repeatedly asserted that he wanted judges who were approved by the Federalist Society and the Heritage Foundation. And once elected, he kept that promise.
DJT: The Federalist Society vetted very carefully great scholars, pro-life — very, very fine people. The Second Amendment — and you know, I think, a very good list. We have a list of 20 judges and all have been vetted by [the] Federalist Society.
JS: The Federalist Society has been around since 1982 and was forged by conservative law school students at Yale and the University of Chicago. It subscribes to a judicial philosophy of originalism and textualism. Meaning, it’s the role of judges to only interpret the Constitution in its plain text, no more or less than those who originally wrote and ratified it.
UC Berkeley Law School Dean Erwin Chemerinsky once wrote, “Never in American history, thankfully, have a majority of the justices accepted originalism. If that were to happen, there would be a radical change in constitutional law. No longer would the Bill of Rights apply to state and local governments. No longer would there be protection of rights not mentioned in the text of the Constitution, such as the right to travel, freedom of association, and the right to privacy.”
In 2017, White House Counsel Don McGahn delivered keynote remarks at the Federalist Society’s National Lawyers Convention in Washington, D.C.:
Don McGahn: The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary.
JS: The Trump administration shared in the view — now dominating the Federalist Society — of applying the philosophy of originalism to government regulations.
DM: The edifice of the modern administrative state was really not constructed until the 20th century on the misguided notion that independent experts, rather than our elected representatives, are best suited to govern the nation’s affairs.
JS: In the view of McGahn and his cohort, federal agencies have become an unaccountable, out of control “administrative state.” In other words, federal agencies like the Environmental Protection Agency or Centers for Disease Control or the Occupational Safety and Health Administration don’t have the authority to interpret what are often ambiguous statutes unless Congress explicitly mandates it.
DJT: I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court. I promised to select someone who respects our laws and is representative of our Constitution and who loves our Constitution and someone who will interpret them as written.
JS: The assertion being: A commitment to individual liberty and limited government. But in practice looks more like a libertarian interpretation of the Constitution. This commitment is what reportedly shot Neil Gorsuch to the top of the Federalist Society’s list of prospective nominees to replace arch-conservative Justice Antonin Scalia. Gorsuch gained initial attention after publishing two judicial opinions that staked out radical originalist positions seeking to undermine federal agencies. In another notable appellate decision, Hobby Lobby v. Sebelius, Gorsuch argued that an individual’s faith could exempt them from Affordable Care Act mandates.
John G. Roberts, Jr.: Justice Gorsuch has the opinion of the Court this morning in case number 16-285, Epic Systems Corporation v. Lewis and the consolidated cases.
Neil Gorsuch: These cases differ in detail but in substance present the same question. If an employer and an employee agree to arbitrate claims between them in individualized proceedings is that agreement enforceable under the Federal Arbitration Act, or does the National Labor Relations Act displace the Arbitration Act and guarantee employees’ right to class or collective actions no matter what?
JS: Since joining the Supreme Court, Justice Gorsuch has been a reliable conservative. In Epic Systems v. Lewis, Gorsuch joined the conservative court majority to make it harder for victims of wage theft to sue employers collectively. He has ruled in favor of a baker’s right to discriminate against a same-sex couple. He has joined the conservative majority in allowing Ohio to purge its voter rolls of so-called “infrequent voters.” He upheld Trump’s Muslim ban. He has helped overturn 40 years of precedent to weaken labor unions. And he favored allowing North Dakota to make it harder for Native American’s using a P.O. Box to vote. And that’s just a sampling of his first year serving as a Supreme Court Justice.
DJT: What they’re putting him through, and his family — his family is incredible — what they’re putting them through. Democrats want to raise your taxes. They want to restore job-killing regulations. There’s been no administration ever that’s cut as many regulations. And we have regulations. We want clean water. We want crystal, clear air. We want beautiful environment. We want. But you don’t have to have regulation that makes it impossible for our country to compete with other countries, and that’s what we’re doing.
JS: Brett Kavanaugh was recommended by the Heritage Foundation, another conservative think-tank that believes judges should not attempt to interpret the Constitution beyond what the original drafters intended. Remember we’re talking about a document from 1787.
Now when Kavanaugh was nominated to the Supreme Court, the White House wrote a one-page brief extolling Kavanaugh’s record of overruling “federal regulators 75 times on cases involving clean air, consumer protections, net neutrality and other issues,” that’s according to Politico. In a case about the Consumer Financial Protection Bureau, Kavanaugh described independent agencies as “a headless fourth branch of the U.S. Government.” In short, Kavanaugh views independent agencies as a threat to individual liberty and executive authority. And that includes regulations intended to protect individuals from corporations.
Christine Blasey Ford: When I got to the top of the stairs, I was pushed from behind into a bedroom across from the bathroom. I couldn’t see who pushed me.
JS: And then of course there’s the matter of Dr. Christine Blasey Ford. In gripping congressional testimony she alleged that Kavanaugh sexually assaulted her more than three decades ago.
Christine Blasey Ford: Brett and Mark came into the bedroom and locked the door behind them. There was music playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room. I was pushed onto the bed and Brett got on top of me. He began running his hands over my body and grinding into me. I yelled, hoping that someone downstairs might hear me, and I tried to get away from him, but his weight was heavy.
Brett groped me and tried to take off my clothes. He had a hard time because he was very inebriated and because I was wearing a one piece bathing suit underneath my clothing. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most and has had the most lasting impact on my life. It was hard for me to breathe and I thought that Brett was accidentally going to kill me. Both Brett and Mark were drunkenly laughing during the attack.
JS: At the time of the hearing, Democracy Now! host Amy Goodman recounted a striking scene.
Amy Goodman: I think this was the key moment, because here you have Amy Klobuchar, who first reveals that her father is an alcoholic and still, at the age of 90, he’s going to Alcoholics Anonymous and says, “Judge, do you drink too much?”
Sen. Amy Klobuchar: Was there ever a time when you drank so much that you couldn’t remember what happened or part of what happened the night before?
Brett Kavanaugh: No. I remember what happened. And I think, you’ve probably had beers, Senator, and –
Sen. AK: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before or part of what happened?
BK: You’re asking about, yeah, blackout. I don’t know. Have you?
Sen. AK: Could you answer the question, judge? I just — so you, so that’s not happened? Is that your answer?
BK: Yeah, and I’m curious if you have?
Sen. AK: I have no drinking problem, judge.
BK: Nor do I.
Sen. AK: OK –
AG: And then he has to take a break for about five minutes and I really felt at that point he was going to come back and apologize and that’s exactly what he did. After five minutes he comes back and he apologizes. And why was this so revealing? I mean, he was belligerent throughout. He lost control and he understood that. Whether it’s alcohol or rage that causes this kind of loss of control, it was most revealing.
JS: Despite Kavanaugh’s behavior at the hearing, despite Dr. Blasey Ford’s incendiary testimony, despite the history of Anita Hill and Supreme Court Justice Clarence Thomas — Kavanaugh was confirmed.
Mike Pence: On this vote the ayes are 50, the nays are 48. The nomination of Brett M. Kavanaugh of Maryland to be an associate justice of the Supreme Court of the United States is confirmed.
JS: Justices Kavanaugh and Gorsuch have already helped roll back hard-won rights protecting workers, consumers, women, immigrants, LGBTQ people, and voters. They both joined the conservative majority undermining workers and consumers’ ability to file suit as a class against businesses. They’ve allowed employers to cite religious or moral objections to providing health insurance that covers contraceptives.
Surprise, surprise, they also ruled that the structure of the Consumer Financial Protection Bureau was unconstitutional — expanding presidential power over an agency established to protect consumers from the practices that led to the 2008 financial crisis.
CNBC: Brett Kavanaugh, the Supreme Court Justice, during lower court rulings on this — debate on this — suggested that the CFPB director, because he or she was only able to be fired for cause by the president of the United States, was in effect one of the most powerful individuals in the United States government. Conservatives have argued for a long time that the CFPB director position is too powerful and now the Supreme Court is agreeing with them.
JS: Gorsuch and Kavanaugh supported allowing the government to hold detained immigrants indefinitely. They joined the court majority upholding the Trump administration’s immigration policies to make it harder for Central American migrants to seek asylum, to allow a wealth test to go into effect, and to make it easier to deport permanent legal residents. They also both dissented from an opinion by Chief Justice John Roberts that the administration’s arguments to end DACA were “arbitrary and capricious.”
In terms of protecting voting rights both have also sided on making it more difficult for voters to cast ballots during the pandemic and that gerrymandered districts can’t be challenged in federal courts.
Lester Holt: Supreme Court Associate Justice Ruth Bader Ginsberg has died at the age of 87 just weeks before —
Senator Mazie Hirono: I know what her last fervent wish was: that she not be replaced until a new president is installed, and that’s how we should honor the legacy of this totally remarkable, courageous jurist —
DJT: Our thoughts and prayers are with her family. Thank you very much. Thank you. Thank you. So article two of the Constitution says, “the president shall nominate justices of the Supreme Court.” [Cheering]
JS: Now Trump and the GOP are trying to rush through a third Supreme Court Justice. They clearly want to make sure the court is stacked in their favor, particularly in the event of a contested election. But also to make sure the court is dominated by radical right-wing ideologues in the event that a Democrat becomes president. Just 45 days before the 2020 election, and one day after Justice Ruth Bader Ginsburg died, Donald Trump announced plans to replace the liberal justice with an arch conservative.
DJT: I stand before you today to fulfill one of my highest and most important duties under the United States Constitution: the nomination of a Supreme Court justice. [Applause.] This is my third such nomination after Justice Gorsuch and Justice Kavanaugh. And it is a very proud moment indeed.
JS: In the mad rush to fill Ginsburg’s seat, Trump held a gathering of more than 100 people in the White House Rose Garden to celebrate the nomination of Amy Coney Barrett. It would turn into a Covid super-spreader event. Trump and more than a dozen people who either attended the event or have been in contact with the White House have tested positive for coronavirus.
Mitch McConnell: It’s just that our Democrat friends worry they might not like the outcome. For some reason they cannot bear to see Republicans governing within the rules as Republicans, doing exactly what Americans elected us to do.
JS: Undeterred, Senate Majority Leader Mitch McConnell said, “We are full steam ahead with a fair, thorough, and timely confirmation process that Judge Barrett, the Court, and the nation deserves.” Now of course, this is the same McConnell, who eight months before the 2016 election, blocked President Obama’s nomination of the moderate Judge Merrick Garland after Justice Scalia died.
MM: The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.
JS: So here we are, facing a third appointment from Trump of yet another judge who believes that the Constitution is fixed in time, just as some of his supporters believe that Adam and Eve lived with the dinosaurs.
DJT: Amy Coney Barrett will decide cases based on the text of the Constitution as written. As Amy has said, “Being a judge takes courage. You are not there to decide cases as you may prefer. You are there to do your duty and to follow the law wherever it may take you.” That is exactly what Judge Barrett will do on the U.S. Supreme Court.
JS: If Barrett is confirmed, that would solidify the Supreme Court as a right wing entity, with conservative justices holding a decisive 6-3 majority. Barrett could provide a crucial vote on cases winding their way up to the Supreme Court, including on the constitutionality of the Affordable Care Act. Sen. Kamala Harris, the Democrats’ vice presidential nominee, described the potential impact.
Kamala Harris: If you have a pre-existing condition — heart disease, diabetes, breast cancer — they’re coming for you. If you love someone who has a pre-existing condition, they’re coming for you.
Susan Page: Thank you, Senator Harris.
KH: If you are under the age of 26 on your parents’ coverage, they’re coming for you.
JS: Judge Barrett criticized Chief Justice John Roberts’ 2012 ruling upholding Obamacare, writing that he “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Remember, Justice Roberts was nominated by President George W. Bush.
Barrett’s deference to executive authority could lean in favor of the Trump administration’s efforts to end DACA, TPP, and asylum. And when it comes to reproductive rights, Barrett could be the vote that overturns Roe v. Wade, which would then leave abortion access to the whims of individual states.
In 2018, The Intercept’s Jordan Smith discussed a Lousianna regulation that would have left the entire state with one abortion provider. It was identical to a Texas law previously overturned by the Supreme Court.
Jordan Smith: So, the question, really, overarching — and then this would apply to other contexts outside abortion as well — is a question about whether just a change in the court’s makeup means a change of your constitutional rights. So in other words, this is kind of set up as a sort of, controlled experiment. This case was just decided three years ago, literally nothing in the universe about this has changed except for that there are two new judges on the court.
DJT: And we have two new Supreme Court justices, Neil Gorsuch and Brett Kavanaugh.
Jordan Smith: Two judges are not supposed to change the universe, right? So it’s kind of a perfect setup to see exactly how this is going to play out.
Jeremy Scahill: In June the Supreme Court narrowly struck down that law in a 5-4 vote. Both justices, Neil Gorsuch and Brett Kavanaugh, voted to make it more difficult for Louisiana women to have access to health care.
On the second day of Amy Coney Barrett’s senate confirmation hearing, Senator Marsha Blackburn of Tennessee asked the judge, who opposes abortion, about its place in the Consitution.
Marsha Blackburn: It’s important to note that abortion is not mentioned in the U.S. Constitution.
Amy Coney Barrett: The word abortion does not appear in the U.S. Constitution.
MB: That is correct. And Roe v. Wade is not an amendment to the Constitution.
ACB: Roe v. Wade interprets the 14th Amendment of the Constitution and locates the right to terminate a pregnancy in the liberty — in the due process clause, the liberty interest.
JS: The impact of an extreme right-wing court not only threatens reproductive rights, it could shut down any progressive attempts at lawmaking for decades to come. If Democrats regain control and successfully pass ambitious new laws — even moderate ones — those laws would likely find their way in front of an ultra-conservative court. In some ways, confirming Judge Coney Barrett is more important to the GOP than Donald Trump winning re-election.
Mitch McConnell: What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law. That’s the most important thing we’ve done in the country, which cannot be undone.
DJT: And the other thing, by the end of the term, we’ll have almost 300 federal judges and court of appeals judges, which is a record. So we will have had a great impact on the court system going forward.
JS: So much of the excitement over Donald Trump’s presidency among Republicans on Capitol Hill and conservative Christians has centered around the federal courts. What has occurred under Trump is nothing short of an extremist, semi-theocratic takeover of large sectors of the U.S. judicial system. The consequences of this will be sweeping and last for generations. It will impact almost every aspect of life in the U.S.: healthcare, marriage equality, workers’ rights, freedom of speech and press, guns, racism, women’s rights, war powers, on and on and on. To put it bluntly, it is a fulfillment of some of the wildest dreams of some of the most rabid right-wing forces in the history of U.S. politics.
People like multibillionaire Charles Koch, who has not only mobilized his network of wealthy donors to help Barrett secure the Supreme Court nomination, but who for decades has given millions of dollars just to the Federalist Society to reshape the federal judiciary. In an interview with CBS in 2015, Koch defended his practice of funneling massive amounts of money in support of extreme libertarian and conservative groups and politicians.
Anthony Mason: Do you think it’s healthy for the system that so much money is coming out of a relatively small group of people?
Charles Koch: Well I — listen if I didn’t think it was healthy or fair I wouldn’t do it because what we’re after is to fight against special interests.
AM: Some people would look at you and say you’re a special interest.
CK: Yeah, but my interest is just as it’s been in business, is: What will help people improve their lives?
Jane Mayer: The Kochs are libertarians, or you could call them neoliberals.
JS: The New Yorker magazine’s Jane Mayer wrote an in-depth exposé about the Koch brothers’ sponsorship of Vice President Mike Pence, one of the key figures spearheading Trump’s judiciary crusade.
JM: They are supposedly people who believe in a kind of social liberalism. But there they are having sponsored the career of Mike Pence. And I think it’s a real tip off to what the Kochs really care about.
The issue that matters to them is not any of the social issues, no matter what they’re saying. What matters to them is allowing business to take over the power in the country, and particularly their own business. So they’re pushing back on regulations, and they’re pushing back on taxes and trying to shrink the power of the government and replace it with their own power. And Mike Pence has been willing to carry their water on that.
JS: People like Attorney General William Barr. Barr started his career at the CIA. After law school, he joined the Reagan White House whose legal team invented the unitary executive theory. Barr also served under George H.W. Bush and encouraged the president to pardon officials involved in the Iran-Contra scandal. During the George W. Bush years, Barr said passage of the U.S. Patriot Act didn’t go far enough. Last year, when he spoke at a Federalist Society, Barr chose to focus his talk on unitary executive power.
William Barr: I wanted to choose a topic for this afternoon’s lecture that had an originalist angle, and it will likely come as little surprise to this group that I have chosen to speak about the Constitution’s approach to executive power.
I deeply admire the American presidency as a political and constitutional institution. I believe it is one of the great and remarkable innovations in our Constitution, and has been one of the most successful features of the Constitution in protecting the liberties of the American people. More than any other branch, it has fulfilled the expectations of the framers.
Unfortunately, over the past several decades, we have seen the steady encroachment on executive authority by the other branches of government. This process, I think, has substantially weakened the functioning of the presidency, to the detriment of the nation.
JS: Donald Trump’s term in office is not even over. But with Mitch McConnell guiding the ship, this White House has successfully moved the federal judiciary far to the right — a long-term Republican strategy that will outlast this president and reshape the country. Trump has named 53 judges to the courts of appeal — where the majority of federal cases end up. In comparison, during Obama’s entire eight year presidency just 55 of his appointees were confirmed. On lower federal courts, again Trump has outpaced his predecessors, appointing 210 in less than four years, compared to Obama’s 262 appointments during his two terms.
Analysis by the New York Times of Trump’s appellate judges found that all but eight of them had ties to the Federalist Society. Trump appointees include judges who support adding a citizenship question to the census, ending same-sex marriage, and opposing the disclosure of the president’s financial records. As Congress has failed to effectively legislate, judges — with lifetime appointments — have become the most consequential policymakers in this country.
This has been part five of an Intercepted limited documentary series, American Mythology: The Presidency of Donald Trump. Over the past week, we’ve been releasing an episode each weekday focusing on a different aspect of the Trump presidency and digging into the history and context of the actions of this administration. Make sure to tune tomorrow to part six of this series, where we’re going to be taking an in-depth look at Donald Trump’s policies on the economy.
American Mythology: The Presidency of Donald Trump is an Intercepted limited documentary series. You can follow us on Twitter @Intercepted and on Instagram @InterceptedPodcast. Intercepted is a production of First Look Media and The Intercept. Our lead producer is Jack D’Isidoro. Our producer is Laura Flynn. Elise Swain is our associate producer and graphic designer. Betsy Reed is editor in chief of The Intercept. Rick Kwan mixed the show. Transcription for this program is done by Lucie Kroening. Our music, as always, was composed by DJ Spooky. Make sure to tell your friends and even your foes about this series and tune in for episode six tomorrow. Until then, I’m Jeremy Scahill.