The White House was already making things happen. The administration’s behind-the-scenes charm offensive to push Justice Anthony Kennedy into retirement—and give Donald Trump a second Supreme Court pick—had finally succeeded in late June 2018, just months after Mississippi and ADF passed the fifteen-week abortion ban. The pressure campaign over who should get the nomination began almost immediately.
Senator Heidi Heitkamp, the Catholic Democrat from North Dakota, was called to the White House for a meeting with the president and his top aides. The whole enterprise was more than a little awkward, she thought. In the twenty-four hours since Kennedy delivered his resignation letter to Trump at a lunchtime White House meeting, the president had traveled to an arena in Heitkamp’s home state, where he urged thousands of cheering fans to vote her out in the coming midterms—and then turned around to ask for her support for his next Supreme Court justice.
Sitting in the Oval Office, she listened patiently as Trump ticked off the names on the list. What did she think of this judge? What about that one?
It was clear to Heitkamp that the president hadn’t yet decided on his pick and was trying to suss out who she preferred. Trump saw her as a gettable vote, a Democrat running for reelection in a deeply conservative state. Plus, she had backed Neil Gorsuch, his first nominee to the court. But this nomination was different, she thought, as Trump kept talking. Kennedy was a swing vote, and he’d backed abortion rights in the past. Awarding Trump a second justice from his list would create a new conservative majority, empowering the court to reshape American life on a whole swath of cultural issues, including abortion, affirmative action, and same-sex marriage.
As Trump rolled through the names from his list, Heitkamp, who supported abortion rights, kept her views to herself. Wedged between Trump aides Don McGahn and Marc Short, she told the president that she had to do her own due diligence. She didn’t know any of these people, and she could hardly promise to support some name without finding out more about the individual judge.
She stood up to leave and turned back to the men. “If your court reverses Roe v. Wade, the Republicans might be a minority party for a generation,” she said. The White House shrugged off her warning. There was no evidence to suggest it might be true. In election after election, abortion simply didn’t motivate Democratic voters.
Inside the White House, another political pressure campaign was underway too. But this one was aimed at the president. More than a year before Kennedy announced his resignation, he had encouraged Trump to add a new judge to his list. The name he suggested was the same man McGahn was now pushing: Brett Kavanaugh, a former Kennedy clerk with a long record in Republican politics. He was added to the third iteration of the list in November 2017.
As a lawyer in the George W. Bush White House, Kavanaugh worked closely with Leonard Leo, his emails from that time show, including on Samuel Alito’s confirmation and other judicial appointments. McGahn, a longtime Federalist Society member, saw Kavanaugh as a model for the kind of judges conservatives should put on the court. He even used Kavanaugh’s decisions as a benchmark to evaluate potential lower-court nominees.
McGahn had an early record of success on judges, delivering the Gorsuch nomination and dozens of lower-court judges by the summer of 2018. He told Trump that Kavanaugh offered the easiest win in the Senate.
But some antiabortion movement leaders had their doubts. Not only was Kavanaugh a creature of the Washington “swamp”—a reason Leo intentionally kept his name off the first two iterations of the list—he also seemed a bit squishy when it came to social issues, particularly abortion. Until his ruling in the Jane Doe case, Kavanaugh had never addressed the right to an abortion in any of his writing as a judge. In public editorials and private conversations, antiabortion activists made clear that they saw his dissent in the Jane Doe case as unconvincing, because of his implication that he would allow the abortion if the girl found a proper sponsor.
Pence’s staff and allies in the White House had been moving a different option into position: Amy Coney Barrett, a former Antonin Scalia clerk, beloved University of Notre Dame law professor, and Catholic mother of seven. She was a new member of the Seventh Circuit Court of Appeals, tapped by a lawyer in Mike Pence’s office to be one of the first judges Trump appointed when he got elected—getting her on the bench and burnishing her credentials for a future opening on the Supreme Court. The seat she took had been held open by Senate Republicans for more than a year, after they refused to give a hearing to President Obama’s candidate, Myra Selby, the first woman and African American to serve on the Indiana Supreme Court.
Barrett had become a conservative heroine during her confirmation hearing, when Dianne Feinstein, the top Democratic senator on the Judiciary Committee, raised concerns about whether her Catholicism would prevent her from being impartial: “The dogma lives loudly within you,” Feinstein said. Conservatives saw Feinstein’s criticism as an unfair religious test, emblazoning the slogan on coffee mugs and shirts in pride.
Unlike Kavanaugh and Gorsuch, who rose through the ranks of presidential administrations and white-shoe law firms, Barrett embodied a more grassroots form of conservatism. Her roots were in New Orleans and the Midwest, and unlike every other current Supreme Court justice at the time, she did not go to law school at Harvard or Yale. “I’m a Catholic, and I always grew up loving Notre Dame,” Barrett said. “I wanted to be in a place where I felt like I would be developed and inspired as a whole person.” She was a star, top in her class, just a few years younger than Marjorie Dannenfelser and the conservative sisterhood taking root in the early 1990s in Washington. One of her professors, John Garvey, who became the president of the Catholic University of America, recommended her to Scalia for a clerkship with just one line: “Amy Coney is the best student I ever had.”
She returned to Notre Dame to spend her career teaching, while raising her seven children, including two adopted from Haiti and her youngest with Down syndrome. She was a member of the People of Praise, an especially insular religious community that had about 1,650 adult members, including her parents, and drew on the ecstatic traditions of charismatic Christianity. Her advice to students was simple: Pray before accepting a new job. Tithe 10 percent of your income to church and those in need. Commit yourself to a parish and build a life and community there.
She represented an ideal of conservative womanhood, where one could be both a superstar mother, part of a tight-knit religious community, and a brilliant and ambitious career woman. Unlike Kavanaugh, Barrett was not really involved in politics, aside from some Federalist Society events and speaking at an ADF fellowship program for law students. But in her research and writing, she devoted herself to originalism and textualism, and her work drew the attention of the conservative legal establishment. On the appeals court, Barrett soon built a largely conservative record and registered concern over striking down abortion restrictions.
Most important to the antiabortion movement, she had made her personal views opposing abortion very clear. Barrett believed life began at conception and opposed Obama’s contraception mandate. She was known for her deep sense of calling to family, faith, and her work. She had the biography that Dannenfelser and her allies of conservative antiabortion women could only have hoped for back in 1993, when Ruth Bader Ginsburg became a justice.
If Trump selected Barrett, then Senators Susan Collins or Lisa Murkowski, the two Republicans left in the caucus who supported abortion rights, might be unwilling to vote to confirm her given her record on abortion rights. But Short believed there was an opportunity to pick up Democratic support instead. Senator Joe Manchin, who backed Barrett for the appeals court, had signaled to Short that he could support an antiabortion judge, as long as that judge left Obama’s Affordable Care Act—which provided crucial health-care coverage for many in his poor home state of West Virginia—untouched. Senator Joe Donnelly, a fellow Catholic from her home state of Indiana, was another gettable vote, Short believed. Like Heitkamp, the two Democrats were up for reelection in conservative states.
Still, Barrett had been a judge for less than a year. If she were ever to be on the Supreme Court, she needed more judicial experience.
If there was any disappointment when Trump picked Kavanaugh, antiabortion movement leaders did not show it publicly. They released statements praising the pick and got to work. Leo’s forces were ready. Within hours of Kavanaugh’s formal announcement, the Judicial Crisis Network announced plans to spend millions boosting Kavanaugh’s image as an impartial jurist. Kavanaugh might not have seemed as sure of a bet for the antiabortion movement as Barrett. But he was a Federalist Society man who had attended their annual conference for twenty-five years, and by Leo’s own estimation, a very large number of their members believed Roe was wrongly decided.
Besides, the president had his own plans for Barrett, he told a number of people. “I’m saving her for Ginsburg.”
ROCHELLE GARZA, ONE of Jane Doe’s lawyers, practically gasped when she heard the news. “This guy?” she thought. “Are you kidding me?”
For Garza, the story of the girl’s case suddenly had even greater significance. Now the administration was doing more than targeting a migrant girl in detention, she thought. They wanted to do to America what they had tried and failed to do to Jane Doe. Trump had picked, for the biggest promotion of all, the judge who wrote the dissent that would have functionally revoked the girl’s right to an abortion. “He’s going to take away everyone’s reproductive rights,” Garza thought.
Whether Kavanaugh would reach the court hinged on just a handful of senators. The group included Heitkamp; Manchin and Donnelly, the two other red-state Democrats; and Collins and Murkowski, the two Republican women who supported abortion rights.
Collins interviewed Kavanaugh for two hours in her office in August. In their conversation, he assured her that he understood the importance of Roe in American life. “Roe is forty-five years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,” he told her, according to private notes later reported by The New York Times. “I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.” Collins emerged from the meeting offering a largely positive review, sending an early signal that she would likely support his confirmation. He had convinced her that he believed Roe was settled law.
Democrats, meanwhile, struggled to unite behind an opposition strategy. The idea that Kavanaugh—a White House lawyer for the Bush administration and a suburban dad from the liberal bastion of Bethesda, Maryland—would overthrow nearly a half century of established law seemed hard to swallow. Some Democrats believed he was more like John Roberts, an institutionalist who generally took an incremental approach to changing the law, than Clarence Thomas or Samuel Alito.
Ilyse Hogue at NARAL argued for a clear assault: a straight, targeted message that Kavanaugh would destroy Roe. But Senator Chuck Schumer, the minority leader of the Senate, worried that mounting an aggressive anti-Kavanaugh campaign could hamper their efforts to win control of the body in the coming midterms. In meetings with Hogue and liberal activists, he worried that asking donors to fund a focused anti-Kavanaugh effort would make it harder to raise money for their broader electoral efforts in the fall. This was a fight Democrats would likely lose, he reasoned. Better to take the defeat fast and leave time to focus on winning back control of the Senate—a victory that would likely make Schumer into the new majority leader.
As the date of the confirmation hearing drew near, abortion-rights advocates continued to push back. The Center for Reproductive Rights, which never endorsed Supreme Court nominees because its lawyers argued before the court, broke its decades-old policy to oppose Kavanaugh. “His judicial philosophy is fundamentally hostile to the protection of reproductive rights under the U.S. Constitution,” the group warned.
Garza prepared to testify before the committee that Kavanaugh placed an “unjustifiable” hurdle to abortion rights in Jane Doe’s case. Brigitte Amiri of the ACLU met with Democratic Senate staffers and reporters, trying to raise alarms by noting that in Kavanaugh’s dissent to the Jane Doe case, he referred to Roe as “existing precedent,” the implication being that such a ruling could be overturned. Amid its leadership transition away from Cecile Richards, Planned Parenthood and other abortion rights groups organized hundreds of protesters to descend on Washington, gathering on the steps of the court, shouting chants in the middle of the Senate cafeteria, and climbing the stairs to drop leaflets with the rallying cry “#StopKavanaugh” into the atrium in the Hart Senate Office Building.
Still, even as they fought, some in the abortion-rights movement began making the earliest preparations for the ultimate defeat. Hogue began shifting resources into state and local races, hoping to win back governors’ mansions and break Republican supermajorities—the only way to stop passage of the state restrictions that she thought would eventually reach the court. That process was far from an immediate solution. It could take years, she realized, as it had taken their opponents.
The morning of Kavanaugh’s confirmation hearing, red-cloaked women stood silent sentry outside room 216 of the Hart Senate Office Building, their white bonnets and floor-length scarlet robes inspired by The Handmaid’s Tale, Margaret Atwood’s dystopian story about a world where women had no rights. Inside, Republican women filled many seats, their presence sending the opposite message that Kavanaugh was an ally.
Through it all, Kavanaugh sat expressionless, hands folded on the table in front of him, a stoic witness to the chaos. His mission was simple: survive unscathed.
KAVANAUGH WOULD NOT achieve that goal. His hearing would go down as one of the most contentious in history, remembered for a woman’s emotional testimony of sexual assault, his outraged denial, and America’s inflamed response. Christine Blasey Ford, a research psychologist from California, alleged to The Washington Post that Kavanaugh had pinned her down at a party when they were teenagers in the early 1980s and groped her. Kavanaugh denied the incident completely. America was ripped apart over questions of belief, power, and women’s bodies.
Since Trump won the White House, outrage over sexual mistreatment of women in American life had birthed a new movement—#MeToo—that brought down 201 powerful men the year before Kavanaugh was nominated. Now, Blasey Ford v. Kavanaugh became the ultimate clash of gender and politics, in the pitched political area of a Supreme Court confirmation hearing that already had enormous implications for women. In the media and in the hearings, the debate over women and their bodies moved from abortion to a new, but related, fight over the power of men and women in society.
But earlier that month, Kavanaugh had another series of exchanges—ones that were far less memorable once the storm of sexual assault allegations came. Before Kavanaugh and Blasey Ford testified, there was a first set of hearings that followed the more typical pattern for potential Supreme Court justices, where senators on the Judiciary Committee questioned the nominee on his or her legal record.
In those hearings, Feinstein, the highest-ranking Democratic member on the committee, led her party’s line of attack. Peering down at Kavanaugh, her objective was to show the country that Kavanaugh was unfit because of a range of issues—including Roe.
At age eighty-five, Feinstein had been through eight Supreme Court confirmation hearings. Her first was for Ginsburg back in 1993, shortly after she was elected to the Senate in the Year of the Woman, as part of the wave of women outraged by the treatment of Anita Hill during Thomas’s confirmation hearing. She had been a tough San Francisco mayor who survived threats and an assassination attempt in the tumult of the 1970s, and ran for office as a feminist. “They don’t get it yet in Washington, but they will once we get there,” she said then. During Thomas’s hearing, the Judiciary Committee had been all men. Now Feinstein was one of four women, all Democrats, on the committee, and one of twenty-one women in the Senate.
Yet, after so many years in the Senate, Feinstein had become deeply vested in the bipartisan traditions of polite comity and respect that once governed the chamber. She quizzed Kavanaugh on his views about Roe, just as senators in her position had done in every hearing since she’d been in Washington. And Kavanaugh, citing judicial propriety as candidates always did, largely declined to answer.
Feinstein pulled up an email he had written in 2003, when he was a lawyer in the Bush White House. The court, he had written then, “can always overrule its precedent.” She wanted to know if Kavanaugh stood by that assessment. Did he consider Roe to be “settled law,” as he reportedly had told Collins in his meeting with her?
Roe, Kavanaugh replied, was “settled as a precedent of the Supreme Court” and should be “entitled the respect under principles of stare decisis,” the legal doctrine that says precedents should not be overturned without a very compelling reason.
“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past forty-five years, as you know,” he said.
Feinstein interrupted him. In all her Supreme Court confirmation hearings, she said, the answer on Roe was always the same. “When the subject comes up, the person says, ‘I will follow stare decisis,’ and they get confirmed, and then, of course, they do not,” she said. “So I think knowing going into it how you make a judgment on these issues is really important to our vote as whether to support you or not.”
As Kavanaugh replied, McGahn sat directly behind him, jotting notes on a legal pad.
“I understand how passionate and how deeply people feel about this issue. I understand the importance of the issue. I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh said. “I do not live in a bubble. I understand. I live in the real world.”
Feinstein pressed again. Did he believe Roe was settled law? Yes or no?
Kavanaugh, again, returned to the answer given by so many in his position so many times. Roe was precedent. Even more, the decision in Casey that followed nearly two decades later made it “a precedent on precedent,” he said. Feinstein moved on to her next issue.
That kind of polite evasion was largely how discussions of precedent always went for both Republican and Democratic nominees. In 2005, John Roberts called Roe “settled as a precedent of the court.” In 2006, Samuel Alito called it “a precedent that has now been on the books for several decades.” Sonia Sotomayor, three years later, said Roe was “the precedent of the court, so it is settled law.” In 2010, Feinstein had a similar exchange over Roe with Elena Kagan, who referenced “the continuing holding” of the decision. And in 2017, Neil Gorsuch said that “a good judge” would consider Roe “as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
But now, this crucial moment for federal abortion rights revealed how those traditional back-and-forths obscured the true stakes to the public. The legal jargon was difficult to understand. The questioning did not explain the judicial philosophy that drove a judge’s interpretation of the law. An everyday viewer could walk away from watching the discussion without understanding that Roe was actually on the line.
Truthfully, there was little reason to even imagine that a culture-altering decision like Roe could ever be overturned. Precedent almost always stands. Republicans had vowed to overturn Roe for decades, but it never happened. To the public, Roe seemed indestructible, an indelible part of American life for two generations.
But in fact, the Kavanaugh moment was different. In a way, Trump had already betrayed the judicial impartiality Kavanaugh was trying to project. The antiabortion movement—through Trump—had a specific legal target and Trump had joined its mission. He said all the judges on the list had been selected because they were “pro-life.” And when asked, in the third presidential debate, whether he wanted to see Roe reversed by the justices he had picked, Trump said it would happen “automatically.”
In that old 2003 email, Kavanaugh, like Trump, pointed out another basic legal reality: precedents can change. The sense of their infallibility is based on legal traditions, not actual law. The principle of stare decisis is just that—a principle, not a mandate. And when precedents do change, they redefine the course of American history. Brown v. Board of Education in 1954 overturned Supreme Court precedent in Plessy v. Ferguson, ending the “separate but equal” doctrine behind Jim Crow laws and racial segregation in public schools. A precedent in 1918 allowed child labor, and the court overturned that decision during World War II.
Later in the questioning, Senator Richard Blumenthal, Democrat from Connecticut, returned to the question of Roe, but this time through the Jane Doe case. He told Kavanaugh that his dissent was a “signal” to the Trump White House, delivered in the language of the antiabortion movement, that he was “prepared” to overturn Roe. Kavanaugh denied that his use of “abortion on demand” was a code word, noting it was a term also used by legal scholars.
Blumenthal then asked the central question one more time, even more directly than Feinstein. “Can you commit, sitting here today, that you would never overturn Roe v. Wade?”
Once again, Kavanaugh dodged. “So. Senator, each of the eight justices currently on the Supreme Court, when they were in this seat, declined to answer that question,” he said.
When the first round of hearings ended, even some of Kavanaugh’s champions in the antiabortion movement still weren’t sure if he would be with them on Roe or how far he would go. That was the whole point of citing precedent for Kavanaugh and the decades of judicial nominees who preceded him. It revealed nothing. And because the infallibility of precedent was a myth, it meant nothing either.