The Summer 2005 issue of Ms. cover story—“What’s at Stake for Us?: The Looming Fight Over the Supreme Court”—now fosters a disturbing sense of deja vu. Written in the midst of George W. Bush’s presidency, the piece expressed extreme concern over the possibility of a far-right Supreme Court nominee and the invocation of the “nuclear option” that could jeopardize reproductive rights, affirmative action and quality health-care services—merely three critical rights for women and other communities that Ms. believed were “hanging by a thread.”
“If the makeup of the Supreme Court shifts,” we worried in 2005, “women could lose most, if not all, of the constitutional gains we have made since the mid-1960s—and that includes the right to privacy… that right provides the basis for legal access to abortion and even birth control. Losing it could turn back the clock, as a series of intertwined decisions on reproductive rights would unravel.”
Today, we are left with the same fears and are yet again facing the same fight after the news of Justice Kennedy’s retirement from the Supreme Court. “The stakes for the Court now could not be higher,” Nan Aron, president of the progressive advocacy group Alliance for Justice, stated in a press release. “The future of healthcare, the environment, women’s rights, workers’ rights, LGBTQ rights, racial equity and more is literally on the line as President Trump ponders Justice Kennedy’s successor.”
A short list of President Trump’s potential nominees was released to the public shortly after Kennedy’s announcement, filled by far-right conservative judges hand-picked as part of the administration’s mission to change the ideological balance of the court. That list was spearheaded by American lawyer Leonard Leo, who has now agreed to advise the president throughout the nomination and appointment process. In the process, Leo is leaving his job as the executive vice president of The Federalist Society, a conservative organization of lawyers whose connections and members comprise 24 of the 25 potential nominees whose names appear on it.
The Federalist Society, which has been called the “conservative pipeline to the Supreme Court,” was founded in 1982 by conservative law students frustrated with what they perceived to be a “liberal bias” among their law school colleagues at Yale, Harvard and the University of Chicago. Originalism is one of the pillars of The Federalist Society, meaning that members believe the Constitution must be interpreted as the founding fathers intended at the time it was written—and that they don’t intend or see fit to use the document to protect the rights of women, people of color, LGBT people and other individuals from communities who were not represented from the room where it was written, and in some cases were even seen as the legal property of its framers.
Notable members of the group, which has grown into one of the most influential legal organizations in the country, include late Supreme Court Justice Antonin Scalia, Senator Ted Cruz and current Supreme Court Justice Clarence Thomas. With Leo as executive vice president, the Federalist Society saw the appointment of former members Samuel Alito, John Roberts and Neil Gorsuch to the highest Court; now, Kennedy’s soon-to-be vacant seat creates an opportunity for the group to claim a conservative monopoly on its ideology.
“We have been in the throes of a conservative counter-revolution on the Supreme Court,” Amanda Hollis-Brusky, the author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, told Ms., “since the mid-1990s—a counterrevolution enabled by, in large part, the support and activities of the Federalist Society.”
Among the top feminist concerns for the appointment of a Federalist Society judge is the erosion of a “right to privacy,” which could have long-lasting effects especially on women’s and LGBTQ rights. The right to privacy, which an originalist would not consider to be an inherent component of the U.S. constitution, was established in the Supreme Court’s 1965 decision in Griswold v. Connecticut—the historic case that ultimately granted married women the right to access contraception and reliable reproductive healthcare services. The right to privacy is also the foundation of the Court’s rulings in Lawrence v. Texas, the case that overturned anti-sodomy laws in the U.S., and Roe v. Wade.
With another Federalist Society member on the Supreme Court, the rights guaranteed by these rulings would almost certainly be in danger. It is critical for feminists to attend town halls and call their senators, urging them to block any nominee who would overturn Roe. “If citizens do not manage to stop this nomination,” said Hollis-Brusky, “there are three other Justices in their late-70s and early 80s, so whomever is in control of the Senate will have incredible influence on what the Supreme Court looks like moving forward.”
As Trump narrows his list—now down to three members of the Federalist Society—the warning Ms. issued 13 years ago stands just as true today. “Doctrines of privacy and equality for women are simply not separable,” we wrote in that 2005 cover story. “Eroding one imperils the other. And all this rests on the shoulders of just one new justice.”
