“My God,” Justice Stephen Breyer thought.
The member of the court’s liberal wing heard the phone ring midway through the Mourner’s Kaddish prayer. The sun had set on the East Coast, and the melodies and rhythms, the nigunim of Rosh Hashanah, washed through the early autumn evening of September 18. He was at home due to the pandemic, watching services on Zoom with his daughter and grandchildren. He told his wife he would answer the call later. This was one of the holiest days of the Jewish year, remembering the day God created the world. The final hours of the old year had passed. A new year was coming. The Days of Awe, the ten-day period of repentance and renewal when the gates of prayer are open, had begun.
Then the other line rang, and he couldn’t ignore that call too. It was the Supreme Court marshal’s office. His heart sank. Ruth Bader Ginsburg, feminist icon, had suffered complications due to metastatic pancreatic cancer.
At eighty-seven, she was gone.
Jewish tradition says that only the most righteous die during the Days of Awe, that God waits until as long as possible, until the final moments of the year, to take them. His friend Ruth, only five years older than Breyer himself, had waited until then to go too. The call came as Breyer was reciting the Kaddish, words so ancient that they are not Hebrew but Aramaic. It became a prayer of mourning in the Middle Ages, as Christian crusaders killed Jews across the Rhineland.
Y’hei shlama raba min-sh’maya v’chayim aleinu v’al-kol-yisrael, v’im’ru: amen. May there be abundant peace from heaven, and life, for us and for all Israel; and say, Amen.
Breyer took a moment to write down his thoughts. “A great justice, a woman of valor, a rock of righteousness, and my good, good friend,” he wrote.
Ginsburg would have known the complications of the reference, “woman of valor” or eshet chayil, from a biblical poem in Proverbs 31 about how to be a good woman. Her mother kept a list of such role models, and Ginsburg memorized their stories. She had also learned early that too often, because of her gender, she didn’t count. When her beloved mother died of cancer, one day before her high school graduation, young Ruthie skipped the ceremony to stay home with her father and mourn, only to be told she could not pray the Kaddish because she was a girl. “The house was filled with women, but only men could participate in the minyan,” she said, referencing the quorum of ten Jewish adults required to recite the prayer.
As an adult, Ginsburg largely abandoned traditional religious observance but felt deeply called by Judaism’s commitment to justice. It was a value that guided her determination to fight sexism and discrimination all the way to the Supreme Court. It inspired her to push the court to respect non-Christian religions—changing policies like ending the requirement that Supreme Court bar certificates be stamped with the date “in the year of our Lord,” referring to the Christian calendar, and pushing the court to not sit on the Jewish High Holy Days, even when she was told that no one complained that the court gathered on Good Friday. In her Supreme Court chambers, she hung a framed lithograph of the Hebrew command from Deuteronomy: “Tzedek tzedek tirdof—Justice, justice shall you pursue.”
The same spirit infused her dissents, such as her opinion in Gonzales v. Carhart, the 2007 abortion case that upheld the so-called partial-birth abortion ban, which stressed how a woman’s power to fulfill her potential was tied to her ability to control her reproductive life. Widespread across Jewish tradition is the belief that the fetus is not considered a person. If the mother’s life is at risk, the fetus is considered a rodef, or pursuer, and rabbinic tradition requires prioritizing her life over the fetus.
For a generation of progressives, Ginsburg had seemed like the picture of strength and fortitude, a larger-than-life icon who vanquished the forces of sexism. Now, physical realities had overtaken her. Her famous black bejeweled “dissent collar,” which she wore on the days she pointedly disagreed with the court’s majority opinion, would be donated to the Smithsonian’s National Museum of American History, along with her black leather briefcase, inscribed with her famous initials, RBG.
On the steps of the Supreme Court later that night, hundreds gathered with flowers, candles, and homemade signs. A woman chanted Kaddish through a bullhorn to the crowd.
When Ilyse Hogue of NARAL heard the news, she was sitting down to Rosh Hashanah dinner. She had promised her twins that she would take the weekend off. Her phone rang and she ignored it. It rang again. Then her husband’s phone started pinging with notifications. “You need to get your phone,” he told her after checking his text messages.
Suddenly, it mattered less whether Brett Kavanaugh would rule with them or not. The antiabortion wing of the court could get another member. Hogue’s views and the abortion-rights movement would almost certainly be a minority at the court for a generation. Everything had unraveled so fast these past few years. This was the final fight.
The timing was terrible. The Senate was in recess. The country was still in the midst of a pandemic. And early voting was underway in four states. Within hours of Ginsburg’s death, Senate majority leader Mitch McConnell pledged that whomever Donald Trump picked to replace her would receive a confirmation vote. He had the votes, with a majority of fifty-three thanks to Republican gains in the Senate in the 2018 midterms. Republicans could lose Senators Susan Collins and Lisa Murkowski, the two Republicans who supported abortion rights, and still win the seat. The Democrats knew that was the only reality that truly mattered.
There were forty-six days until the presidential election, far fewer than the nine months between when Scalia died and Election Day. Yet, Leonard Leo’s pledge that Republicans would not confirm a Supreme Court justice in an election year was forgotten. No president since Ronald Reagan had confirmed three justices to the court. Trump could be the one to do it, and it looked like he would. Ginsburg’s death meant that conservatives could capture a new majority. The kind of supermajority that could take down Roe.
Democrats would fight. And it would be a battle, Hogue knew, they would lose.
MARJORIE DANNENFELSER WAS having a small picnic under the trees at the Supreme Court that night, eating crackers and cheese with some of her kids, when one of her staff members called with the news. The situation felt “sublime,” she said. It had all come to this moment, a brief pause that would decide the direction of abortion law in America. The fall of Roe was not immediate, but it was now in sight, she thought.
“It’s what we’ve been working for all these years,” Dannenfelser said that evening. “What is most important is what happens to our court and Constitution. You don’t get a shot that often.”
Opposing abortion was, she continued to believe, good politics for the Republican Party. Dannenfelser argued that the suburban women who formed Joe Biden’s base were not monolithic; more would be on the Republican side than the left might anticipate. A third justice would help bring those moderates back home to Trump, she calculated, overcoming the chaos of his administration and his low marks on handling the pandemic. Her sense of the politics would prove misplaced, but it revealed how deeply she believed her movement had changed minds and converted America to the morality of their cause.
Yet, for Roe, the outcome of the election no longer mattered. Nor did the composition of Congress. The die could be cast with this court seat. This confirmation battle.
In her office, Dannenfelser had a detailed map drawn on a wall-size whiteboard. From a distance, it looked like the kind used by political campaigns to track polling and turnout, swing districts, and congressional votes. But this one was color-coded by unified Republican control of state legislatures and governors’ mansions, and partitioned by court of appeals jurisdiction. A red triangle meant the state had passed a “heartbeat bill,” generally a ban started around six weeks; a green square signified a “pain-capable” abortion law, typically a twenty-week ban. Red stars showed the courts of appeal where Republican-nominated judges outnumbered Democratic ones—of the eleven, they controlled seven. It was a map of how all the laws were moving up toward the ultimate court that mattered.
With Ginsburg’s death, the final piece of the puzzle map was snapping into place. There were still questions, of course. Which of the twenty or so abortion cases lining up at the lower courts might reach the Supreme Court next? Would it be Dobbs? If it was not Mississippi, could it be Utah or Arkansas? How far would Kavanaugh go on Roe? The antiabortion movement just needed to ensure that, with days to go, it got the nominee it wanted and that the Senate confirmed him—or her.
Ginsburg’s life, her fight for opportunities for women, and her jurisprudence symbolized the struggle and victory of liberal feminism. That movement was embodied in her three initials and a white lace collar she typically wore with her judicial robes. Now, it would be replaced by a new vision, one articulated by a very different female judge, whose own three initials represented a different feminism and a different view of the Constitution. A mother of seven from the heart of American Catholicism. The woman Trump had said he was saving for Ginsburg.
Trump introduced Amy Coney Barrett as his nominee in the Rose Garden, in the same place where Bill Clinton had introduced Ginsburg in 1993, after the Year of the Woman. Back then, Dannenfelser was twenty-seven, barely beginning with her shoestring sisterhood and hoping to carve a more powerful place for conservative antiabortion women in Washington. That was half a lifetime ago. Now, at fifty-four, she and those women sat in the Rose Garden watching Barrett become the new symbol of the culture they wanted to usher in for America.
“While I am a judge, I’m better known back home as a room parent, carpool driver, and birthday party planner,” Barrett said, looking at her seven children and husband taking up the entire front row next to the First Lady, Melania Trump. Seeming to preempt the criticisms of Democrats, Barrett directly addressed the American people. “If confirmed, I would not assume that role for the sake of those in my own circle and certainly not for my own sake,” she promised. “I would assume this role to serve you.”
Barrett knew her Catholic faith would be a public lightning rod. When Trump considered her in 2018, after the Dianne Feinstein “dogma lives loudly within you” incident, she went to great lengths to avoid giving the media a chance to take a photo of her religious observance and potentially paint her as a zealot. One Sunday morning after Mass, when she realized the press was outside the front of the church, she hopped a fence and landed in a vegetable garden. The yard was her associate pastor’s, who, she said, “helped me make my escape.”
Barrett’s garden diving didn’t hide her beliefs. She was a member of an antiabortion faculty group, and in 2006, she signed a newspaper ad from the local Right to Life group opposing “abortion on demand” and defending “the right to life from fertilization to natural death.” Roe was “very unlikely” to be overturned, she told a group of students in 2013 when the ruling turned forty. The best way to reduce abortion in the United States, she said, was to support poor single mothers, who are likely to choose the procedure. It was an argument that antiabortion pregnancy centers had made time and again. “Motherhood is a privilege, but it comes at a price,” she said. “A woman who wants to become pregnant accepts this price, but in an unplanned pregnancy, the woman faces the difficulties of pregnancy unwillingly.”
The antiabortion movement had accomplished a giant feat—the first mother of school-aged children to serve on the Supreme Court also opposed abortion and was a devout Christian believer.
“Goals,” Lila Rose, the post–Roe generation antiabortion activist, wrote on social media with a heart-eyed emoji, above a clip of Barrett walking with four of her seven children, all dressed up for her nomination ceremony in the Rose Garden. At age forty-eight, Barrett was poised to become the youngest justice on the bench, positioned to shape a generation of American law—or, if she lived as long as Ginsburg, two.
Barrett was both Christian supermom and high-powered legal scholar, elite and outsider in her own way, a combination of the more secular conservative Federalist Society credentials and the beliefs of the emerging Christian legal movement. None of this was the conservative femininity of Phyllis Schlafly, who rose to power as a homemaker arguing against the advancement of women outside the domestic domain. This new iteration of conservative feminism didn’t argue that women’s gains should be rolled back or that women should not be professionally ambitious. But it wanted those advancements not to come at the expense of ideals of motherhood, Christian morality, and the centrality of married, heterosexual parents raising children. This conservative feminism believed that the legalization of abortion had hurt women, not liberated them.
What America was watching at the court, though few realized it at the time, was the secular feminist world represented by RGB being supplanted by a new symbol for American womanhood: ACB.
But for all their planning, once again, antiabortion leaders had also gotten extraordinarily lucky. Not only would they get three Supreme Court justices, they could flip the court. It was yet another moment they could have never orchestrated and that they interpreted as a sign of divine intervention.
THE CONFIRMATION WAS madness from the beginning. Trump formally selected Barrett a day after Ginsburg lay in state at the Capitol, the first woman and first Jew to receive the honor. Barrett’s nomination ceremony in the Rose Garden turned into a COVID superspreader event, landing the president himself at Walter Reed National Military Medical Center. Leo’s groups, especially the Judicial Crisis Network, quickly devoted $10 million to the campaign to confirm the nominee—just as they had for Gorsuch and Kavanaugh. At Trump’s reelection rallies, supporters debuted a new chant—“Fill the seat.”
The confirmation process, once again, chipped away at the court’s ability to position itself as above politics. Republicans wouldn’t give Garland a hearing, but here was McConnell pushing Barrett through as the presidential race reached the final stages. The process was partisan and polarizing, and split the nation once again. Vast majorities of Republicans—83 percent, according to one CNN poll—wanted Barrett confirmed, while only 8 percent of Democrats did. Independents were split.
As they sprinted to her confirmation hearings, Republicans took pains to play down Barrett’s potential impact on Roe. In the first presidential debate, three days after Barrett’s Rose Garden nomination, Trump was uncharacteristically reticent on the issue. When Biden said Roe was on the ballot, Trump shot back. “There’s nothing happening there,” he said. “You don’t know her view on Roe v. Wade. You don’t know her view.” Once again, Mike Pence played down the issue, refusing to say during the vice presidential debate whether he would want Indiana to ban abortions if the court overturned Roe. Kamala Harris, for her part, also skirted a parallel question about whether California should have no restrictions.
But a small number of Republicans said what the antiabortion movement believed to be true about Barrett. It was the reason they had wanted her all those years earlier, when Trump picked Kavanaugh. “This is the most openly pro-life judicial nominee to the Supreme Court in my lifetime,” Missouri’s Josh Hawley, one of the senators who had won his seat in the 2018 social conservative backlash to the Kavanaugh episode, said in a speech on the Senate floor supporting her nomination. “This is an individual who has been open in her criticism of that illegitimate decision Roe v. Wade.”
Like so many nominees before her, Barrett offered few hints about her legal position in her hearing. During the hours of questioning from Democratic senators, she refused to say whether Roe was correctly decided. When pressed on whether Roe was a “super-precedent,” she evaded a direct answer by citing the fact of the question. “Roe is not a super-precedent because calls for its overruling have never ceased, but that doesn’t mean that Roe should be overruled,” she said.
Eight days before the election, on October 26, Leo tuned in from his home in Maine to watch his old friend Clarence Thomas swear Barrett into the court. Watching her raise her right hand, it felt like the culmination of his entire project. It was “exhilarating,” he said. The John Roberts vote was suddenly less essential. There could now be more consistent rulings that upheld the original meaning of the Constitution, he thought, decisions against abortion rights, race-based affirmative action, gun control, and other priorities. Richards, of course, saw the moment differently. The confirmation was “a suspension of everything we believed to be true,” she said. The Supreme Court was not above politics, she thought, nor did it even try to be anymore. “I was naive,” she said of her decades of faith in those judicial and political norms. “This is a Republican Supreme Court.”
Trump would go on to lose the White House to Biden. Dannenfelser’s political prediction that a third justice might boost moderate support for Trump was wrong. Suburban women voted for Biden in droves, boosting him into the Oval Office. But she was right where it mattered. Leo, Dannenfelser, and Pence got their biggest prize with eight days to go.
Trump, whom Dannenfelser stuck with through “Grab ’em by the pussy,” ended up as the most successful antiabortion president America had ever known. His administration transformed the judiciary, shifting power toward opponents of abortion for a generation. Trump appointed nearly 230 judges to the federal bench, just one fewer powerful federal appeals court judges in four years than Obama appointed in eight, and three judges to the Supreme Court. Of the judges he appointed to the highest courts—the Supreme Court and circuit courts—86 percent either had been or were Federalist Society members. And with his speech to the March for Life and graphic comments in his State of the Union about how abortion providers “execute a baby,” he changed political expectations for Republican presidents. What Trump and his Republican allies had done was to lay the groundwork for long-term cultural change, not by winning hearts and minds but by leveraging political force to conquer the courts.
Dannenfelser saw her decision to stand by Trump in 2016 as now justified. “We’d never get this court,” she said. “Maybe never again.”
Some in her movement wouldn’t accept that Trump lost. By now, many antiabortion believers had embraced the Trump era’s new right-wing conservatism and election denialism, a cause that struck at the foundation of American democracy Abby Johnson, a former clinic director for Planned Parenthood who quit to become an antiabortion activist, spoke at a rally that opposed the certification of Biden’s victory, wearing a pin that said “1972”—signaling America before Roe—along with a founder of the Oath Keepers, the far-right group, and Alex Jones, the conspiracist.
What had started as an effort to gain a foothold in the Republican Party after the post-2012 autopsy had ended in a takeover. Trump had promised conservative Christians that “Christianity will have power.” And now that vision of Christian power was at the center of a Republican Party they had remade.