Amicus With Dahlia Lithwick

Episode: The Conservative Legal Project Comes Home to Roost (May 22, 2021)

Main Theme / Purpose

This episode explores the intensifying conservative project to influence the U.S. Supreme Court and federal judiciary, with a major focus on abortion rights and voting rights. Host Dahlia Lithwick interviews frontline abortion providers about the impact of recent legal trends on their work and discusses the broader mechanics of conservative court capture with Senator Sheldon Whitehouse and Vox correspondent Ian Millhiser.

I. Recent Supreme Court Moves on Abortion Rights

[00:32–05:08]

• Host Dahlia Lithwick outlines the landscape: The Supreme Court has agreed to hear Dobbs v. Jackson Women's Health Organization, a direct challenge to Roe v. Wade, and Texas has passed an unprecedented six-week abortion ban with a unique citizen-enforcement mechanism.
• Lithwick contextualizes the stakes: the conservative supermajority has shown new boldness in addressing core social issues, particularly reproductive rights.

“We are watching a Supreme Court that allegedly had meant to stay out of the headlines… that is actually now gobbling up the headlines.”
— Dahlia Lithwick (03:50)

II. On-the-Ground Realities of Abortion Access

Guests: Tammy Krominacker (Red River Women's Clinic, ND), Amy Hagstrom Miller (Whole Woman’s Health)

[05:08–30:35]

A. The Work of the Clinics

Tammy Krominacker [05:20]:

• Red River Women's Clinic is the only abortion provider in North Dakota and serves patients from three states, providing medication and in-clinic abortion up to 16 weeks, plus contraception.

Amy Hagstrom Miller [06:03]:

• Whole Woman's Health operates nine clinics in five states, focusing on areas with harsh abortion restrictions. Services range up to the legal limit per state and extend to community education and advocacy.

B. Response to Supreme Court & Texas Law

• Patient Confusion and Staff Weariness: Both directors report that legally seismic events—like the Supreme Court’s Dobbs cert grant or Texas’s abortion ban—register as just another hurdle in a relentless struggle for access.
• Patients are often unaware of nuances, experiencing news as a generalized “abortion ban,” leading to fear and confusion about the legality and practicality of services.

  “People already half the time think it’s not available and not legal… So a case out of Mississippi… they don’t hear that it’s necessarily a threat to their care.”
  — Tammy Krominacker [07:37]

C. The Impact of COVID-19

• Clinics had to adapt rapidly, emphasizing efficiency and minimizing time in clinic.
• Example: Coordinating with patients and staff across state lines due to pandemic disruptions and revamping medication abortion follow-up.
• COVID-19 compounded both challenges and opportunities, forcing clinics to become more patient-centered.

D. The Texas Six-Week Ban and Citizen Enforcement

Amy Hagstrom Miller [15:18]:

• Texas law deputizes any private citizen to sue anyone aiding an abortion post-six weeks, targeting “even the Uber driver or a faith leader.”
• This scheme is designed to sidestep constitutional challenges and serves as a new escalation in harassment and intimidation.

“People without any legal training, without any medical training, with very biased political leanings… can make just a claim that abortions are being provided illegally…”
— Amy Hagstrom Miller [15:26]

E. The Emotional Toll and Resilience

• Providers feel "numb" after decades of attacks—a continual “onslaught” of shifting legal threats.
• However, their commitment to patient needs keeps them going.

“Yeah, I’m tired, I’m burnt out, but I keep going, and the patients keep me going.”
— Tammy Krominacker [22:35]

F. What Can Supporters Do?

• Talk openly and compassionately about abortion as a moral good.
• Donate to independent clinics and abortion funds, especially in hostile states.
• Volunteer as clinic escorts for safety.
• Educate oneself about the local provider landscape and supportive organizations.

“Every one of us knows somebody and loves somebody who’s had an abortion… make it personal.”
— Amy Hagstrom Miller [27:24]

III. The Conservative Legal Project and Court Capture

Guests: Senator Sheldon Whitehouse and Ian Millhiser (Vox)

[33:11–74:47]

A. Why Focus on Hidden Legal Structures?

• Both guests aim to expose how seemingly arcane legal mechanisms profoundly shape democracy.
• Sen. Whitehouse [33:53]:
  • Warns of “gradual and silent encroachments” on democracy via a network of wealthy interests.
  • The Supreme Court is the ideal target for undemocratic capture, as justices are insulated from political accountability.

“It’s a giant covert op being run by… primarily fossil fuel interested billionaires… Voters are an impediment to that.”
— Sen. Sheldon Whitehouse [34:37]

• Ian Millhiser [35:51]:
  • The Court advances radical change by “hiding mischief in plain sight,” e.g., administrative law decisions that gut environmental protections under boring legal pretexts.

“They don’t say, ‘We want more mercury in your water.’ What they say is, ‘Well, Article I gives legislative power to Congress…’”
— Ian Millhiser [36:25]

B. The Mechanics of Court Capture

Sen. Whitehouse [38:53]:

• Mapping the multimillion-dollar pipeline: Big money flows into vetting organizations (Federalist Society), massive TV ad campaigns, and coordinated amicus briefs, all to seat and steer justices toward outcomes benefiting special interests.

“It’s just rotten to the core.”
— Sen. Whitehouse [41:19]

Ian Millhiser [42:25]:

• The conservative legal movement specifically recruits “true believers” who will enact the movement’s agenda for free—part of why lifetime judgeships are so potent a tool for circumventing democracy.

“The problem with someone like Brett Kavanaugh is he actually believes this stuff. He will do it for free.”
— Ian Millhiser [43:00]

C. Practice of Issue Hopping and Network Coordination

• The same organizations pivot seamlessly between court-packing, climate denial, and now, voter suppression.
• Example: Leonard Leo moving from judicial appointments to the “Honest Elections Project”—all sharing the same funding and staff infrastructure.

D. The Fight Over Transparency and Dark Money

Sen. Whitehouse [49:14]:

• Disclosure and transparency in political funding is now recast by right-wing groups as “cancellation” and an assault on free speech, despite originally being championed by the same conservative circles post-Citizens United.
• The Supreme Court is positioned to roll back even minimal donor disclosure in politics.

“Masked people and fake front groups simply aren’t part of a responsible democracy…”
— Sen. Whitehouse [50:28]

Ian Millhiser [51:52]:

• The Americans for Prosperity Foundation case illustrates how wealthy donors now successfully use the Court to shield themselves from scrutiny—misusing arguments intended to protect vulnerable groups like the NAACP in Jim Crow-era Alabama.

E. The Intellectual Influence of Justice Thomas

• Once fringe ideas (ending transparency, erasing labor laws) are now mainstreamed by Justice Thomas, whose outside-the-mainstream opinions serve as a beacon for conservative lawyers and clerks (now seen in action with the three newest Trump-appointed justices).

“Where Thomas goes, the others will soon follow… because the machinery… has him as its most vocal and forward-leaning protagonist.”
— Sen. Whitehouse [64:04]

IV. The Court’s Threat to Democracy and Voting Rights

[65:06–74:27]

A. Supreme Court’s Record on Voting Rights

Sen. Whitehouse [66:34]:

• Dissects the Court's Shelby County decision (striking down key Voting Rights Act provisions):
  • The ideological majority disregarded overwhelming evidence to enable widespread voter suppression.
  • The Supreme Court refuses to reconsider despite clear evidence that its underlying factual assumptions were false.

“They're actually living in a world in which their factual predicates in their cases are a bit unhinged from reality...”
— Sen. Whitehouse [69:27]

Ian Millhiser [69:49]:

• Today’s Court is more hostile to voting rights than even those that tolerated Jim Crow; it actively dismantles protections.
• The practical response for voters: Outorganize efforts to suppress turnout (“If they put a wall in front of you, you climb up it... Vote, and keep doing it, until enough justices retire or die that… voting rights [are protected]”).

B. Closing Thoughts

• The sustained, coordinated campaign to manipulate the judiciary threatens democratic principles.
• The only way forward is persistent civic engagement, transparency advocacy, and, above all, vigilance in democratic participation.

“We are still at the point in America’s slide into authoritarianism where it can be reversed through elections. And we want to make sure that it is reversed through elections, because we don’t want to have to do it the other way.”
— Ian Millhiser [73:33]

Notable Quotes & Moments (With Timestamps)

• “We’ve done the six week ban, we’ve done this ban, we’ve done that ban. You know, we’ve been in constant litigation for the last…decade or so against these restrictions.”
  — Tammy Krominacker [00:06; repeated sentiment at 22:31]
• “The Supreme Court hides a lot of mischief in plain sight.”
  — Ian Millhiser [00:18; elaborated at 35:51]
• “It’s a giant covert op…being run by…billionaires, but a few others, against their own country…”
  — Sen. Whitehouse [34:37]
• “I think that people in the Federalist Society…were reading these [Thomas] decisions, and it was expanding their horizons of the possible...”
  — Ian Millhiser [62:00]
• “They are so out of step with the majority of the public that I have to have hope. Of course, an abortion provider in the south is like, you know hope is our jam, because what else do we have?”
  — Amy Hagstrom Miller [25:00]
• “Where Thomas goes, the others will soon follow. Not necessarily because he’s intellectually of such great heft, but because the machinery that has put them all there has him as its most vocal and forward-leaning protagonist.”
  — Sen. Whitehouse [64:04]

Key Takeaways

• Frontline abortion providers confront an unending “onslaught” of legislative and legal restrictions, with the Supreme Court poised to dramatically restrict (or overturn) Roe v. Wade.
• The Texas six-week abortion ban inaugurates novel civil enforcement mechanisms that could inspire copycat laws nationwide and trigger widespread intimidation against all involved in abortion care.
• The “conservative legal project” has successfully captured the judiciary by building a pipeline from funding to legal theory to handpicked justices, enabled by anonymity in political spending and a network of interconnected organizations.
• The Supreme Court has become the centerpiece of efforts to entrench minority rule, dismantle environmental and social protections, and whittle away voting rights, with little public accountability.
• Hostility to transparency is now doctrinal—wealthy political actors claim that disclosure is persecution, not democracy.
• Voters and activists must stay vigilant, support frontline providers, and mobilize for long-term systemic change.