10
Loading video...
By Meredith Wolf Schizer
Senior Editor
0
Share
Newsweek is a Trust Project member
See more of our trusted coverage when you search.Prefer Newsweek on Googleto see more of our trusted coverage when you search.
When the Supreme Court voted to overrule Roe v. Wade, it became clear that today's judicial branch is drastically different from the one that granted the right to abortion over 50 years ago. This shift was part of an organized conservative effort, catalyzed by former President Ronald Reagan, argues journalist and author Alex Wagner. Wagner dove into the multidecade endeavor to reshape the American judiciary system and the key figures behind it in her new book, The Steal: Four Right-Wing Hard-Liners, One Republican Presidency, and the Raid on America's Courts. Newsweek spoke with Wagner about the left's modern-day response to conservative successes, whether the Supreme Court has a public trust issue and what the future may hold. This conversation has been edited and condensed for publication.
Astrid Stawiarz/Getty Images for GLAMOUR/Flatiron Books
Newsweek: Progressive candidates have had recent election and primary successes. Do you think that's the beginning of a parallel effort to the Heritage Foundation and the Federalist Society on the left? Or is it fundamentally different?
Read More
‘The Steal’: How Conservatives Took Over Supreme Court10 min read
Alex Wagner: The thing that really struck me in researching and writing this book is the degree to which conservatives were operating on all fronts. There was a very specific and powerful grassroots movement that blossomed on college campuses that became the Federalist Society. There were outside actors like Paul Weyrich, who created think tanks and organizations funded by conservative donors. They weren't totally grassroots, but they were outside elected politics. But there were also key people inside the administration, including and especially Ed Meese, who would become the attorney general, who worked to bring the foot soldiers into the battle proper, if you will.
So if you compare that to the progressive movement right now, I think there is absolutely the grassroots energy. There is a desire to be part of the inside game by running for office. And there's a real push to change leadership. I think if you talk to any progressive organizer, the understanding is that the movement cannot simply live and die on the hill outside of Washington, but needs to be inside the halls of the Capitol and the White House itself. So, I think there are parallels to be drawn. I do think conservatives were more comfortable working within establishment circles. That's not to say that there wasn't tension, but they were also very comfortable taking money from deep-pocketed donors like Joe Coors, a beer magnate. And I think the progressive movement today is much more skeptical of deep-pocketed individuals and corporate money. I would argue, rightfully so. So the pipeline doesn't exist, maybe, in exactly the same construction.
What do you think the biggest lesson is that Democrats should take from the conservative successes? Is it the ideas, or is it the decade-long investment in institutions?
One of the most urgent lessons as it concerns politics today is the tenacity and the patience with which these conservatives approach their ideals. Now, I would argue that they were hugely out of sync with where the American public was at. So it was sort of more harebrained back then than I think it is now. I wouldn't put progressives today so deeply at odds with public opinion. In fact, I would say a lot of progressive ideals are very much shared by the American public. It's that the American public doesn't feel like it has representation that reflects their ideals and hopes, but as harebrained as these ideas were, they held onto them and they were unstinting and highly focused in achieving those ideals, even when the tides looked to be turning against them. And there were numerous periods, like after the Bork nomination debacle. Robert Bork is the kind of éminence grise of conservative politics, and he gets "Borked," like it becomes a verb. And that does not diminish the fight. Instead, it's a bonanza for recruitment for conservative foot soldiers to the cause. I think the left can probably learn that lesson better, which is, if you truly believe these are the right ideals, there needs to be patience, there needs an acceptance there are gonna be real losses, but that shouldn't diminish the fight. And I think that's one of the most important lessons from this book is the degree to which they never took their focus off of the main thing. Which was really reorienting the judiciary and therefore American society and making it not just responsive to, but a home for conservative ideals.
If there's another Supreme Court vacancy during Trump's presidency, do you expect the Federalist Society to remain the dominant force in the judicial picks, or has MAGA built a new power center for selecting judges?
That is the question, right? We have lots of reporting in the last several years that the Federalist Society, which was once sort of the redoubt of people who felt like the Reaganites and the right wing was not sufficiently hardcore enough now itself is seen in MAGA circles as a bunch of squishes. So yeah, I think the irony is like if you win and seed hardcore, radically progressive ideas throughout American society, and you create a home for culture warriors, one day they're gonna come to the gates with broomsticks and pitchforks pointed at you. And that's kind of what's happened, right? This is the harvest of the seeds that in turn the Federalist Society sowed with their great success, their astounding success over the last several decades. So yeah, I would imagine that we are going to see a far more hardline and very young conservative pick to fill any Supreme Court vacancies. And, assuming there's more Democratic control in the legislative branch, it'll be up Democrats to decide how to manage that because they will have power, I think. And that's going to raise all kinds of questions about what legislative mechanisms should be done away with, what protocols and parliamentary procedures should be rethought. It'll be a real powder keg, I think.
...
What is that next powder keg? What's the current fight over the courts and the rule of law that you think the public is underestimating now?
I think one of the things that the Supreme Court has done, and it's very convenient for the Roberts Court, is to unwind decades of civil rights progress and social progress by kicking the issues back to Congress, knowing full well that Congress is so stymied, and in part because Republicans are so intransigent, that nothing will actually change. So by undermining or just doing away with something like Roe [v. Wade] and kicking it back to the states or to the legislative branch to make it a federally protected right...built into that calculation is an understanding that nothing's actually gonna happen. And so therefore it's akin to tearing down Roe with no recourse for women who wanna, you know, preserve bodily autonomy.
I think the fight is going to be...there is going to be an enormous amount of pressure on the legislative branch to pick up some of the slack. Because what's happened in this season of legislative atrophy is that the courts have become essential. They've become both bulwarks against the executive branch's most egregious oversteps, but they've also empowered the judicial branch to become a kind of, it's more than a co-equal branch of government. It's the judicial branch doing the work of legislating in some ways, right? And that is not what the founders intended.
So I think there's gonna be a huge fight within the Democratic Party about how aggressive the legislative branch should be, should Democrats win the House and/or the Senate or both, because Congress has been doing nothing. And as a result, the other two branches of government have amassed a great amount of power and are not nearly as accountable to the American public as the legislative branches. So, I think that's gonna be a huge thing, but in terms of specific issues, I think, that there's going to be real pressure to figure out how to preserve the sanctity and the freedom of our elections, depending on what happens in November. I think there's gonna be an enormous amount of pressure to do something on bodily autonomy and the right to choose. I think that there's going to be pressure to figure something on immigration, where it's just, Trump's extrajudicial like death squads roaming the streets and doing things that I think a lot of Americans aren't okay with. So, I think there's gonna be no shortage of catalytic elements, but I think ultimately the question is going to be how does Congress, which really is the people's branch, how does it take that power back and really right the ship because it's so imbalanced right now in terms of the separation of powers.
You said that the courts are now almost legislating, which is not what the founders intended. That is kind of a counterintuitive flip of the originalist philosophy. So, is that just ironic...
Well, let's just be clear. And we get into the origins of originalism in the book. It is not like some legal theory that has been handed down since the days of the Founding Fathers. It was a politically expeditious theory that was promoted by conservatives, including Robert Bork and Ed Meese, the Attorney General, that would suit partisan political purposes. It was a way of retrofitting judicial ideology to suit the agenda of the Reagan administration and for many other administrations henceforth. Originalism is a convenience. It is not a sanctioned legal theory. And this court has proven to be convenient embracers of originalism. This court has proved to burnish their originalist bona fides when it is convenient. But when it is not on something like, oh, I don't know, the 14th Amendment, birthright citizenship, they conveniently can forget about their allegiance to the Constitution. I mean, they are incredibly inconsistent in their embrace of the theory. And it doesn't surprise me at all that it's been bastardized to the degree that they can somehow rely on originalism at the same time as they are making hugely political and honestly legislative decisions that are completely at odds with what the Constitution intended.
The courts have become a political battleground. Do you think Americans have lost faith in the judiciary as being a neutral arbiter? And can we rebuild that?
It's kind of the worst of all possible worlds, because I think you have an enormous number of Democrats and independents who look at the Supreme Court and say you are a partisan body, whether that's from the decision-making itself or through the scandals that have mired the conservative majority, and they have been numerous, and the apparent corruption of the majority, and then you have, I think, a lot of Trump supporters and conservatives who look at the lower courts and say, you're just there stopping Donald Trump, your activist judges in the phraseology of the Reagan right. You guys have taken your mandate and far exceeded it. And so overall, I think if you did some Gallup polling on Americans' attitudes toward the judiciary, you'd find an incredibly dissatisfied American public depending on which part of the courts you're talking about, and that's gonna be hard to repair. I mean, I would argue that the federal courts have been consistent and they've been a bulwark against the extraordinary impulses of this administration. The Supreme Court would argue very differently, right? I don't know how you rebuild that. I think that there's gonna be huge. You know, you talk about the powder keg for 2028 and beyond, the Supreme Court itself is gonna be a subject of much debate. I think there are a lot of people, especially on the left, that look at this unelected, berobed group of nine individuals serving lifetime terms and think, this is not right. This is not how it should be, and there's gonna be a real push for either term limits or increasing the number of seats. I think that conservatives likewise are gonna have their eyes set on the lower courts. And much like during the Reagan '80s, insist in the waning years, probably the last two years of the Trump administration, that Trump really refashioned the lower court in his image with younger justices. I mean, that's not to say that he hasn't, but like Reagan appointed half of the federal bench in the course of his two terms. So, I think that the courts are going to be an area of deep, deep, deep division and I think debate for years to come.
Your book unfolds over 45 years or so. If someone were writing a sequel 45 years from now, what do you think America's judiciary is going to look like in 2070?
Oh my God. It's really depressing to say, but I think the Reagan revolution and the period in which I really dig into, between 1981 and 1991, are just a period of enormous, but secret, change in terms of how politicians approached judicial appointments. And that was the entry point really of politics explicitly being introduced to the judiciary. And I think we now see judges and the courts are so embedded in politics that I think you're gonna see that on steroids in 50 years. I think that the confirmation hearings are gonna be even more fractious than they are today. I think the pipelines themselves will be even more explicitly training grounds for ideologues. These are positions that last for a long time. Sometimes they're lifetime appointments. They have an enormous amount of power. They last well beyond an administration. And Ed Meese and Ronald Reagan were right to see that truly the legacy of a presidency is reflected not just in legislation, but really in the courts. So I would assume this will look like the good times compared to what may be coming down the pike in 50 years.... So enjoy it now!
Read an excerpt from The Steal here.
View 0 Comments
Submit Correction
View Editorial & AI Guidelines