The Litmus Test

Summary

Amicus With Dahlia Lithwick: "The Litmus Test" (October 17, 2020)

Host: Dahlia Lithwick (Slate)
Guests: Elise Hogue (President, NARAL Pro Choice America) and Pamela Karlan (Stanford Law School)

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Episode Overview

This episode of Amicus closely examines the Senate confirmation hearings of Judge Amy Coney Barrett to the U.S. Supreme Court, focusing on the process, political context, and implications for the court, women's rights, and democracy. With guest Elise Hogue, a leading voice in the reproductive rights movement, and constitutional law scholar Pamela Karlan, host Dahlia Lithwick explores the theatrical, formulaic nature of the hearings, the normalization of extreme positions, the GOP’s long game on the courts, and the future of fundamental rights.

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Key Discussion Points & Insights

1. The Amy Coney Barrett Confirmation Hearings: Formulaic, Yet Radical

• The hearings strictly followed the modern script: the nominee offers few answers, pledges an open mind, and provides no opinion on contentious issues (04:54).
• Elise Hogue: “What is happening is the antithesis of normal. And... what we saw was a tremendous amount of gaslighting obfuscation and non answers ... compounded by the fact that the GOP was rewriting history sitting in the hearing room as they are wont to do.” (04:54)
• The spectacle normalizes what Hogue calls “extreme actions and extreme views.” The dangerous part is how “it felt normal. And that in and of itself is deeply appalling.” (04:54)
• Lithwick draws a sharp contrast with past nominees (Clarence Thomas, for instance) who arguably had less clear records; Barrett's long anti-abortion record wasn’t hidden or ambiguous. (06:15)
• Elise Hogue: Barrett’s record “would have been disqualifying not that long ago. And that’s crucially important because... her nomination is dangerous. It's dangerous to fundamental rights and freedoms that we should be able to take as sacrosanct...” (07:40)

2. Image, Motherhood, and "Real Feminism"

• The GOP’s focus on Judge Barrett’s motherhood and home life was unprecedented: frequent references to her seven children, questions about “who does the laundry” (10:26–11:02).
• Elise Hogue: “They have insisted for decades that feminism is a sorority where all women should be accepted... versus an actual political philosophy that attacks root causes of gender oppression...” (11:45)
• She places Barrett in the tradition of female figures who uphold patriarchal systems (Phyllis Schlafly, Kellyanne Conway).

3. Colorblindness, Equity, and Structural Disadvantage

• Lithwick notes how Barrett’s response on racial justice and her own family “sent up a flare about the difference between... Ginsburg's jurisprudential vision” (helping all, not just “me and mine”) (13:11).
• Elise Hogue: “This feels so reminiscent of a time that should be long gone, where it's all about the individual... when... the majority of America depends on... a structural critique of inequity. And that is what RBG stood for...” (14:25)
• Discussion of how personal experiences are not sufficient proxies for broader policy insight (a la Justice Sotomayor).

4. The "Dark Money" Federalist Society Machine

• Senator Sheldon Whitehouse’s questioning highlighted the network behind court nominations and legal strategies, including the Federalist Society and aligned dark money groups (16:32–18:38).
• Elise Hogue explains: Abortion was chosen as a “litmus test” by the Federalist Society because it “perfectly map[s] on to hostility to other forms of social progress... It was a control agenda for a minority of people...” (18:38)
• She distinguishes the real animus not as religiosity, but as opposition to equity across gender and race.

5. Religious Liberty, Kabuki Theatre, and the "Ginsburg Rule"

• Republican Senators (Hawley, Kennedy, Marsha Blackburn) portrayed any questioning of Barrett as “religious bigotry” (21:34–22:14).
• Hogue recounts the historical use of “religious liberty” as a fig leaf for exclusion, including resisting desegregation (22:26).
• She applauds Democrats for not taking the bait.
• Barrett’s reliance on the “Ginsburg Rule” to avoid positions is called out as gaslighting since Ginsburg openly discussed Roe at her hearings ("no hints, no previews" is not the same as refusing to answer basic questions) (24:15–26:56).

6. Beyond Roe: The Real Threats to Reproductive Rights

• Lithwick and Hogue challenge the false binary that abortion rights are safe unless Roe is explicitly overturned (28:31–30:16). "The project here... doesn't have to be writing the sentence ‘Roe v. Wade is overturned.’"
• Hogue points out: Access has already been eroded for many; it's not just about Roe, but about barriers, criminalization, and a broader agenda (“It looks like, as Senator Booker said, miscarriages being investigated... These are real things that are happening in this country.”) (30:16)
• The vision includes attacks on contraception, IVF, surrogacy—"This is about reproductive oppression as a means of control and codifying in law what they believe ‘natural family’ looks like.” (34:11)

7. Democratic Failures and Asymmetrical Norms

• Lithwick questions the refrain that Democrats simply "suck" at these fights (35:31).
• Elise Hogue: “What I found really disturbing was the false equivalence that the mistakes we have made... was somehow commensurate with a minority of people who have literally subverted democracy to get their way...” (37:10)
• She defends faith in democracy and the continued need to fight for it, even if the rules are asymmetrical.

8. Pam Karlan: The Hearing Was "Beyond the Cellar"

• Karlan (beginning at 39:22) sums up the hearing as beneath normal standards: “It's hard to imagine a basement below the cellar into which this hearing went... the Republican members... had announced they were going to vote for the president's nominee before they even knew who the nominee was.” (40:53)
• She’s shocked at Barrett's refusal to answer even basic legal questions, like whether voter intimidation is illegal: “...to refuse to answer whether intimidating voters is illegal or not is to say there's no point to having hearings here at all.” (41:51–42:21)
• Both Karlan and Lithwick are disturbed by Barrett’s noncommittal answers on absentee voting and a peaceful transfer of power: “...injecting into the discourse the very uncertainty that whips up a lack of trust in absentee voting.” (42:21–43:33)
• Karlan: “I don't understand why she wouldn't simply say, given, of course I can be fair.... But I recognize that many people may think... that was improper. So I'll recuse myself from cases involving this election.” (43:33)

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Notable Quotes & Memorable Moments

• Elise Hogue:

  • “The GOP has long been aware that they should focus on the wrapping paper and not the toxic mess that is inside.” (11:45)
  • “We are all the frogs and the GOP's boiling water.” (07:40)
  • “They have used religion as a fig leaf for oppression for decades and decades.” (22:26)

• Dahlia Lithwick:

  • “There's a way in which this is not an ambiguous record. In fact, it's so unambiguous that the president can crow about what's going to happen.” (06:15)
  • “I felt as though it was different in kind only because it was injecting into the discourse the very uncertainty that whips up a lack of trust in absentee voting.” (42:21)

• Pamela Karlan:

  • “It's hard to imagine a basement below the cellar into which this hearing went...” (40:53)
  • “To refuse to answer whether intimidating voters is illegal... is to say there's no point to having hearings here at all.” (41:51)

• Senator John Kennedy (to Amy Coney Barrett): “Who does the laundry in your house?” (10:53) -- exemplifying the odd focus on Barrett’s home life.

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Key Timestamps

• 04:54 – Hogue on formulaic, evasive nature of hearings
• 06:15 – Lithwick on Barrett’s clear anti-abortion record
• 07:40 – Hogue: Barrett’s record would be disqualifying not long ago
• 10:26–11:02 – Montage of Senators focusing on Barrett’s motherhood
• 11:45 – Hogue on GOP’s “wrapping paper” feminism
• 13:11–14:25 – Barrett's answers on racial justice vs. Ginsburg’s worldview
• 16:32–18:38 – Dark money, Federalist Society, and the anti-abortion “litmus test”
• 21:34–22:14 – GOP invoking religious bigotry / the “kabuki”
• 24:15–26:56 – Ginsburg’s actual testimony on Roe compared to Barrett’s evasions
• 28:31–30:16 – Roe v. Wade and the “undue burden” on abortion rights
• 30:16–34:11 – Real world impact: criminalization, fetal personhood, reproductive oppression
• 35:31–37:10 – The “Dems just suck” narrative and its limits
• 39:22–44:54 – Pam Karlan on the substantive void of the hearing

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Overall Tone

• The episode is critical, urgent, sometimes incredulous, and deeply concerned about democratic norms, the independence of the judiciary, and the future of rights for women, people of color, and vulnerable communities.
• The guests employ vivid metaphor and clear, accessible language—juxtaposing the kabuki theater of the hearings with the real-world consequences of the Supreme Court’s direction.

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Summary

This episode is an incisive, impassioned look at the confirmation process of Amy Coney Barrett—exposing the normalization of radical positions; the strategic use of “feminism,” family, and faith for political ends; and the GOP’s decades-long effort to use the judiciary as a bulwark against social progress. Hogue and Karlan both express alarm at the erasure of real debate and the disregard for past norms, urging listeners to recognize the stakes not only for Roe v. Wade but for the very structures of American democracy and equality.

Transcript

[Senator John Kennedy]

The hearing to confirm Judge Amy Barrett.

[Dahlia Lithwick]

To the Supreme Court will now begin.

[Elise Hogue]

The GOP has long been aware that they should focus on the wrapping paper and not the toxic mess that is inside.

[Senator John Kennedy]

It's a sincere question. I'm generally curious.

[Elise Hogue]

No hints, no previews, no forecasts.

[Dahlia Lithwick]

Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the rule of law and the U.S. supreme Court. I'm Dahlia Lithwick. I write about those things for Slate this week. Usually an off week for us on the show is of course an on week for us on the show because we spent it watching the historic hearings of Judge Amy Coney Barrett, who who will likely be voted on and confirmed and seated at the highest court of the land in a matter of weeks. There's a good deal to say about these hearings and also not much to say. The hearings themselves went off without much variance from the usual script. Four year president fills five years worth of vacancies. Why? Well, because he can. And as our guest Robert Rabin predicted last week on this show, Senate Democrats tried to highlight the real world impacts of what it's going to be like to have a 6 to 3 Supreme Court that will empirically be the most conservative court we have seen in over a century. But as Lindsey Graham was quick to note, none of that really mattered because he had the votes. He had them before the curtains even rose on Monday. Now, later on in the show, we're going to talk to Professor Pam Karlan of Stanford Law School. She's the person that Twitter and if you'll recall, Ellie Mistahl on this show just a few weeks back, had broadly all selected to do 100% of the questioning by the Democrats in these hearings. Slate plus listeners are going to get an extended version of that interview with Pam Carlin. And if you're not a Slate plus member yet, you can go to slate.com amicusplus to check out the benefits of membership, which include ad free access to all Slate Network podcasts, bonus content from lots of shows, including this one, and also, and really this is very important, Slate plus membership gives us the financial support we need for so much of the journalism we do here at the magazine. They are a vital part of our future. So that is slate.com amicusplus thank you. Thank you for supporting the work we do. But first I wanted to talk to Elise Hogue. Elise is the president of NARAL Pro Choice America, where she has led that organization in the fight for reproductive freedom since 2013 under her leadership leadership. NARAL has become an organizing powerhouse across the country, tripling its membership to two and a half million people, advancing state and federal legislation to protect and expand abortion access, and fighting an unprecedented wave of abortion bans that have happened at the state level in the last few years. Elise is also the author of the Lie that Binds, published this past summer. It's a totally compelling, I think, must read story of how the formerly nonpartisan issue of abortion rights was reinvented to become the sharp point of the spear for a much larger movement that was bent on maintaining control in a changing world. If you read her book or listened to the podcast that came out with it this summer, you would have not been in any way surprised by the events of the past few weeks since the death of Justice Ginsburg. Elise, welcome to Amicus. I'm so glad to have you.

[Elise Hogue]

I'm so happy to be here. Dalia, thank you.

[Dahlia Lithwick]

I want to just flag that we are both recording from our homes in Covid and to the extent that there are little people or at my house, a weed whacker or an extremely loud teenager, that's all happening and that's just what it is. So I think I want to start as I must, with the hearings. I know you've watched a lot of them. I've watched a lot of them. It's just right. Formulaic nominee says nothing, pledges to have open mind, refuses to opine on any hypothetical future case, refuses to opine on any settled past case beyond, I guess Marbury. Did any element of the evasions and the I can't answer and the blank slate kabuki surprise you or was this just pretty much the norm?

[Elise Hogue]

I mean, I think it's unfortunate and how much of the norm it was that we have come to expect because what is happening is the antithesis of normal. And you know, what we saw was a tremendous amount of gaslighting obfuscation and non answers as you say, from the nominee, but compounded by the fact that the GOP was rewriting history sitting in the hearing room as they are wont to do. I mean even that unfortunately has come to be known as the norm. And and you know, I think it is incredibly dangerous, I say it even as I'm saying it, that we see that as the norm when in fact the role and responsibility of senators on both sides of the aisle to actually legitimate the court, which stopped happening a while ago but really was driven home with their rush to confirm this nominee and to vet this nominee for her what is a reasonably Extensive record since a lot of times they like blank slates. It felt normal. And that in and of itself is deeply appalling.

[Dahlia Lithwick]

So I want to pick up right where you just left off, Elise, because I think this was different to me than say, a nominee like Clarence Thomas who could, I guess, be plausibly claim he had never discussed Roe at law school, you know, had never thought about it. This is a nominee who, you know, as a private citizen signed ads calling abortion barbaric and infamous, seeking its reversal. She gave talks as an academic, she wrote papers as an academic. And then in her three years on the federal bench, she certainly wrote opinions and dissents that suggested that things that were, I thought, settled principles of Casey parental notification waivers, those things are also up for grabs. So there's a way in which this is not an ambiguous record. In fact, it's so unambiguous that the president can crow about what's going to happen. Josh Hawley can crow about what's going to happen. Lindsey Graham can crow. This is a person who's going to strike down row. And yet she still sort of managed to pull off the claim that she had no dog in this fight. And that's a sea change. Right? Even Gorsuch and Kavanaugh didn't have the chutzpah to suggest that, oh, don't mind decades of advocacy and clear material thinking and work on this issue. Today, I am a different person.

[Elise Hogue]

Well, I need to underscore what you said, which is this nominee's record is extremely clear and in fact, not, not that long ago would be disqualifying. And that is a really important thing to note for your listeners because in some ways, we are all the frogs and the GOP's boiling water. Right? They have had a strategy of normalization of what are extreme actions and extreme views for some time. And we grow complicit when we actually forget what it used to be like. And so this nominee's record would have been disqualifying not that long ago. And that's crucially important because you're correct, her nomination is dangerous. It's dangerous to fundamental rights and freedoms that we should be able to take as sacrosanct, including the fundamental right to make your own decision about whether or not you want to carry a pregnancy to term or seek an abortion. And I think that what they were out to do, and this is gets to your point about her not being Kavanaugh or Gorsuch, is put a nice reasoned face on it. And we know this nominee, right. She's been before this committee before she was confirmed for a circuit court position. And we knew that she was chosen for her poise and her reasonable demeanor in an effort to deflect from the fact that what they are doing, both through this legitimate process and the person that they are nominating is extraordinarily outside of what most Americans consider mainstream and depend on the court to protect for our individual and collective liberties. And I think that that's really important. Now, was she good at it? She was quite good at it. Right. Did they make it easier for her? Absolutely. I'm trying to imagine. And, Dalia, you have been watching the court longer than me. When else we've had more conversations about who does laundry in our homes and what our family. You know, how do our families get along when we are out there doing the crazy thing of women working. Right. They absolutely painted a picture of someone who was relatable and took every effort possible to avoid any real conversation about clear statements and rulings that this nominee has affected.

[Dahlia Lithwick]

So we actually, in anticipation of you saying just that, prepared a little audio of just the weird fetishization of the children and the parenting. Let's have a listen.

[Senator John Kennedy]

You've got seven kids. Not only is Judge Barrett a mother of seven, your children have been wonderfully well behaved. You've raised seven children.

[Elise Hogue]

Probably the law of Amy prevails at the Barrett household over those children. 50. 50.

[Dahlia Lithwick]

I think we have to also play the capstone, which is, in fact, Senator John Kennedy's question.

[Senator John Kennedy]

I got one last question.

[Dahlia Lithwick]

Hope it's an easy one.

[Senator John Kennedy]

It is. It's a sincere question. I'm generally curious who does the laundry in your house?

[Dahlia Lithwick]

And I think you've flicked it now, Elise. But really unpack for me what it means to have Lindsey Graham, Marsha Blackburn, Joni Ernst insisting that this is real feminism, that real feminism happens when for the first time, there's a mom on the court. Except, oops, we've had two of those. Real feminism happens only when a conservative woman gets to break her glass ceiling. I don't even know what I'm asking, except can you locate this in some sort of theory of the case? Because my reaction to it was I cannot quite believe we're talking about who does laundry at your house.

[Elise Hogue]

You know, I mean, I think the GOP has long been aware that they should focus on the wrapping paper and not the toxic mess that is inside. And that is their definition. Right. They knew that they could not see sell an agenda that was oppressive to women through only having men Ram it down our throats. And so they have insisted for decades that feminism is a sorority where all women should be accepted. And if not, you're the bad guys. Versus an actual political philosophy that attacks root causes of gender oppression and works for jurisprudence and public policy that lifts all women up in an equal status to men in this society. And that is what they were doing with this nominee. It has a long history in the GOP since they turned this corner, being stridently misogynistic. Some would argue that Phyllis Schlafly was the godmother of being the face of white women willing to uphold a white patriarchy. Kellyanne Conway has done it quite well. And I would, you know, if there is a sorority of these women who are anti feminist but want to be the standard bearer. Amy Coney Barrett certainly made herself a core part of that club this week.

[Dahlia Lithwick]

And I was really struck. Elise, I wonder if you heard it, too, when she was in a colloquy about racial justice and what happened when her kids found out about George Floyd, particularly her two adopted kids from Haiti. And her answer was, you know, it was very sad. It was very hard, but, you know, they live in a world where they're cocooned from that kind of injustice. And for me, that really sent up a flare about the difference between what I think of as Ginsburg's jurisprudential vision, which is nobody gets to be in a cocoon like the people in the cocoon work to make life fair for the people who are not in the cocoon. And the idea that, I guess, her children don't suffer from being treated as George Floyd or because she has succeeded as a woman on the federal bench. It's such a sort of solipsistic worldview, again, of what equality is. It's sort of equality for me and mine. It reminded me a little bit of Brett Kavanaugh's famous, famous gender equality because he hires female clerks.

[Elise Hogue]

I thought Senator Booker made that point very well, and I think his sadness came through in it. This feels so reminiscent of a time that should be long gone, where it's all about the individual and what the individual can get or do or achieve, when, in fact, the majority of America depends on what we know to be a structural critique of inequity. And that is what RBG stood for. Right? That is what is so offensive about painting this nominee as the heir to rbg. RBG basically came from a school of thought and expressed it quite often that it wasn't just equality, it was equity. As long as we didn't have enshrined in law the potential for everybody to have equitable claim to freedom and justice. We were failing. This felt like such a regression from what is really a culturally vibrant conversation right now about structural inequity, particularly around race and also around gender. We certainly know that lots of people who have different kinds of family still can hold racist and misogynistic views. And that is not the question. And that should not be litigated within this nominee's own family. The question is her responsibility, and I think Justice Sotomayor spoke so clearly to this during her own confirmation process, is are we bringing our lived experience to our responsibility in this case as a jurist to make sure that that informs how we create policies that better understand everyone's situation? And I would argue in Justice Sotomayor, she takes that very seriously. Whereas this judge, Judge Amy Coney Barrett, seems to believe that her individual experience can be a proxy for others. And nothing could be further from the truth.

[Dahlia Lithwick]

And now let's return to our conversation with Elise Hogue. She's the president of NARAL Pro Choice America. Elise, one of the reasons I really wanted to talk to you this week is because Sheldon Whitehouse spent the bulk of his questioning, both rounds, I think, highlighting the same dark money Federalist Society machine, this tiny operation with lots of big money from mysterious sources, a slush fund that leapfrogs cases to the courts and also finances the amicus briefs and also handpicks the judges. So this is right. Sheldon Whitehouse, view of the world. Let's listen.

[Senator John Kennedy]

The legal groups, all the same funders, over and over again, bringing the cases and providing this orchestrated, orchestrated chorus of amici. Then the same group also funds the Federalist Society over here. The Washington Post wrote a big expose about this, and that made Leonard Leo a little hot, a little bit like a burned agent. So he had to jump out and he went off to go and do anonymously funded voter suppression work. Guess who jumped in to take over the selection process in this case for Judge Barrett? Carrie Severino made the hop. So once again, ties right in together.

[Dahlia Lithwick]

One of the frustrations for me is that this is all known, right? You wrote about this. Jane Mayer's written about this. Senator Whitehouse has made this point at least three times, I think, on this very podcast. And yet, I swear to you, nobody understood what he was talking about. And he got lampooned as some crazy Homeland string theorist, crazy person. But everything he described about this sort of juggernaut of how we pick and seat judges, how we seed cases how the reproductive rights movement has been used as a sword to transform both the courts and the conversation around justice. This is all stuff you knew?

[Elise Hogue]

Yeah. I mean, one of the things that I find fascinating that's known history, it's all in public documentation, is that when, you know, the Federalist Society, which is the home for aspiring right wing legal eagles, chose abortion and hostility to Roe as a litmus test for folks who want it in their club, they did so not because they actually sort of held more antipathy towards abortion than any other sort of like form of self expression, but because it tended it to perfectly map on to hostility to other forms of social progress, workers rights, LGBTQ rights, racial justice, voting rights. And that's what they were going for. It was the whole kit and caboodle. It was a control agenda for a minority of people who had always enjoyed uncontested power versus where the country was going, which was towards a fight for more pluralistic and inclusive society that was reflected again in our law and public policy. That notion of the Federalist Society, that you could use abortion or hostility towards abortion as the tip of the spear, was replicated in research in 2019 by Tressa Undone that showed most people presume, and this is the fight that the GOP was trying to have with itself this week, most people assume that the indicator for hostility towards abortion rights, legal abortion and Roe, is religiosity. That's demonstrably untrue. Pluralities, if not majorities of people of all faith actually believe, no matter what they themselves think they would do, that they believe. This is not a place for politicians. This is a place for individual liberty. What is a good predictor, in fact, for hostility towards abortion rights is hostility towards other kinds of equity, gender and, and racial. And so, you know, I think it's crucially important that we actually call this what it is. And who made it easier for us this week? Dalia, but Senator Mike Lee, who said the quiet part out loud when he said actually he believes the court should be used as an instrument to protect against the majority. And that is in fact, the weapon that the right wing has been honing the court to be for decades. And it is incontestable that this nomination is the capstone on that strategy. And that is why they are under so much pressure to push this through cutting corners, violating norms over the will of the American people who really want to be able to decide their next president and have this president fill the seat. It is fundamentally because they understand that they are the minority. They are using the court to assert minority rule, and they know that that will have political consequences for them, and they're racing to get ahead of it.

[Dahlia Lithwick]

And I think there's two important things you just said. One is the weird kabuki around religious animus. Right. Where you have Josh Hawley when you.

[Senator John Kennedy]

Tell somebody that they're too Catholic to be on the bench, when you tell them they're going to be a Catholic judge, not an American judge, that's bigotry. The pattern and practice of bigotry from members of this committee must stop about.

[Dahlia Lithwick]

How if anybody even invokes the word Griswold v. Connecticut, then everybody is full of religious animus.

[Senator John Kennedy]

I can only assume is another hit at Judge Barrett's religious faith. Referring to Catholic doctrinal beliefs. I don't know what else it could be.

[Dahlia Lithwick]

On the other side, not a lot of religious animus is expressed, but it's a way of lashing it to religion in the ways you just described. Right?

[Elise Hogue]

Yeah. And I think that's where we also have to unpack the history here, because we believe too much of the right wing's narrative. The first time that religious liberty was invoked in the political realm, probably not the first time, but in recent history, was when Jerry Falwell invoked it in 1969 to fight school desegregation. He actually led a school of people and thought that said, it violates my religious freedom to have to dismantle my segregation academies and send my kids to school with black kids. And I found that so offensive listening to so many of them from the dais this week rail about either questioning this nominee's record as religious persecution or the threats to religious liberty when in the hands of the right. Religion has been used as a fig leaf for oppression for decades and decades. And in fact, most people actually understand the concept of religious freedom to mean, like, I get to practice my religion, but I don't get to tell you what you have to do because of my religion. And in fact, they are arguing the total opposite. Now, credit where credit is due, not a single Democrat took the bait. Right. So they ended up in this, as you said, kabuki theater argument with themselves. But what was clear in that is they were trying to paint themselves, but by extension, this nominee as a victim of persecution in order to actually paint her as a sympathetic character and say it is nobody's business to question her record, when, in fact, it is the highest order of business for these senators to question her record.

[Dahlia Lithwick]

And I think that what you just said is also the answer to my question about the Ginsburg rule.

[Senator John Kennedy]

Right.

[Dahlia Lithwick]

So we have time and time and time again Judge Barrett saying, you know, I can't opine on Roe, I can't opine on Casey, I can't opine on even Griswold. There's nothing I can opine on. And then citing the rule that Ginsburg ostensibly laid out in her own hearing about no hints, no tips, no forecasts. But of course, here's some audio of Justice Ginsburg talking at her hearing, one of many times where she talked quite volubly for her about her vision of Roe v. Wade.

[Justice Ruth Bader Ginsburg]

The one thing that one can say for sure, there was a massive attack on Roe v. Wade. It was a single target to hit at. I think two things happened. One is that a movement that had been very vigorous became relaxed, slightly relaxed, didn't entirely go home, but it wasn't as vigorous as it is had been or that it might have been were it not that the Court seemed to have taken care of the problem. So one thing is the one side seemed to relax its energy while the other side had a single target around which to rally. But that was that's my what if? And I could be wrong about that. My view was that the people would have accepted, would have expressed themselves.

[Elise Hogue]

In.

[Justice Ruth Bader Ginsburg]

An enduring way on this question. And as I said, this is a matter of speculation. This is my view of what if other people can have a different view.

[Dahlia Lithwick]

And I guess the point is, Elise, that this is one of those pincer moves where simultaneously cloaking yourself in a rule that purports to be the Ginsburg rule, and yet also using it to avoid doing exactly the thing that Ginsburg very happily and freely did at her hearing, which is talk about abortion.

[Elise Hogue]

I mean, I find this to be the highest form of collective gaslighting that I can think of right now in political theater. Because not only are they doing everything you're saying, which is completely ignoring what actually happened, but they're using our own icon and symbol of the fight for reproductive freedom, but all kinds of freedoms and rights in doing it. And it was, in fact, quite terrifying, as you said, to hear her invoke that to not only go where other nominees have gone. Right. I won't talk about Roe because, and let's be clear, they don't talk about Roe because they know they're on the wrong side of it. That majorities, vast majorities of Americans believe in legal access to abortion. But, but as you said, birth control now is suddenly that we can't actually just commonly accept as settled law. And then even more disturbing. And I was really surprised, Dalia, that this did not make more headlines. She couldn't comment on whether a president should commit to a peaceful transfer of power. She couldn't comment on whether children should be removed from their parents. If safety is not a concern. These are not cases, these are not laws. These are commonly held values that are uncontestable in American society. And I found that chilling.

[Dahlia Lithwick]

Yeah, I wrote a little bit about what it means that she was unwilling to just do the costless thing offered by Senator Klobuchar, which is to say, of course absentee ballots are real. Of course they're part of democracy. The idea that maybe she needed to keep her mind open in case she's asked to throw out all the absentee ballots was similarly chilling. Not just insofar as she wouldn't make a statement of law, which is clearly right. But I think that for millions of Americans who are trying to figure out if they're going to stand in a Covid line or mail in a ballot to hear that maybe the next justice on the court, who, by the way will be deciding this case is prepared to chuck them all, I think is really sort of participating in the very narrative that she should be debunking. I had the same reaction. I want to talk about Roe for a minute because obviously that's your lane. And I think one of the things that I was really struck by was this very facile conversation we keep having about this is about overturning Roe and Joni Ernst saying Roe is not going to be overturned. And Judge Barrett, you know, on the record speaking, saying, oh, it's not going to be overturned. We're just going to never find an undue burden that we can't love. That's the project here. It doesn't have to be writing the sentence Roe v. Wade is overturned. And we're seeing that clearly playing out in the states that are down to one clinic. And I wonder how we got into a situation where there's this, I think, very, very misleading binary that unless the court, quote, strikes down Roe in its entirety, strikes down Casey in its entirety, abortion is safe. That just feels like it's more gaslighting.

[Elise Hogue]

Absolutely. And you know, I think this is what we've been living through for some time is that since the early 90s, literally thousands of non medically required restrictions have been put in place for the only reason is to prevent access for people with less power. Something that RBG called out very loudly and clearly and I shouldn't even say since the 90s. Obviously in 1976, the oppressive and racist Hyde Amendment was put into place to restrict low income women and disproportionately burdening women of color with financial barriers to abortion access. So the idea that this sort of everything is safe if we have Roe has been disproven all the way to the Supreme Court in 2016 in the whole women's health case, where it was found that these restrictions amounted to not just undue burden, which is legalese. Right. But actual insurmountable barriers for women and pregnant people who need to get to reliable healthcare services to have abortions. And so I think it's really important to ground this in the experience of people today. These are not future things. These are people today. Right? And I think we saw two things, right? We saw Tillis and the nominee herself suggesting like, nobody's going to mess with Roe, which is another form of gaslighting. It's what we've been hearing forever, which is like they'll say when they're running for President, I'm only going to nominate justices who are committed to overturning Roe. But then they'll turn around and say, what's with those hysterical women who are suggesting this nominee would overturn Roe. Right, we saw that. And then we also saw people like Ted Cruz being like, what are these people's problems with state rights? You know, it. Let's, let's give that they might overturn Roe. What is wrong with states being able to decide when we know that? The reality is we do not have people marching in the streets who are anti abortion, saying federalism. Now what do they say? They say abortion is legal. Their end game is a complete ban, similar to what we did see in red states around the country. And I think that's impossible. Absolutely a myth that has to be dispelled. They are going for end game. The court is part of the strategy. And endgame is really, really frightening. It is already being lived. It looks like, as Senator Booker said, miscarriages being investigated. It looks like a young pregnant woman who got shot in the stomach in Alabama and lost her pregnancy and was put on trial for manslaughter. Like, these are real things that are happening in this country. And that is what has to ground any conversation about what rights are or are not at threat.

[Dahlia Lithwick]

And I guess tied to that, Elise, because I think the other move, and it connects to Judge Barrett being unwilling to say Griswold was whatever super president is a thing that she doesn't have A problem with. I mean, John Roberts conceded on Griswold.

[Senator John Kennedy]

I agree with the Griswold court's conclusion that marital privacy extends to contraception and the availability of that.

[Dahlia Lithwick]

And I think that it's worth talking about fetal pain bills. We had Lindsey Graham, you know, really talking about fetal personhood. I think that we get very, very myopic about talking about abortion. But what you're saying is so important. We've got Sarah Pitlik elevated to the courts. She's against ivf. She's against surrogacy. This is not a line that is drawn necessarily post pregnancy at all.

[Elise Hogue]

No, no. And it's a very coherent ideology. I always find myself correcting people when they're like, well, if they're so against abortion, why don't they fight for contraception? Because that's not what they're about. Right. This is the lie that we wrote about. And the lie that binds is the central lie that they are motivated by outcomes of individual pregnancies. Nothing is further from the truth. This is about reproductive oppression as a means of control and codifying into law what they believe natural family looks like.

[Dahlia Lithwick]

And.

[Elise Hogue]

And that does go towards very terrifying things like surrogacy, ivf, lack of access to contraception, and in fact, not extending the benefits that are required to carry pregnancies to term when you want to. This is about a structure of people who are deemed acceptable, who have access to services and power, and others who are not, who don't. And that is the fundamental vision that we are confronting through this nomination and this capture of our court. And the more that we have that conversation, so thank you for facilitating it, the more people wake up and realize we have got to call them out and fight on this.

[Dahlia Lithwick]

I have to ask you one last thing, which is the real reason I invited you, Elise. I listened to your interview on the Daily Right before this all began. And with all due respect to Michael Barbaro, I felt like he was asking you in about 11 different ways, why did Dems just suck so bad at this? And I felt like you answered it every one of the times. But there was a way in which there's a kind of a gamesmanship that is at work here that it feels akin to being like, well, you know, if you just had a better backhand, you would win this. But, you know, you're just really bad at this game. And, you know, you let yourselves get pantsed on Merrick Garland and pantsed again on Neil Gorsuch. And I have to say, I'm finding That conversation, both tedious and also it reinforces that this is some kind of constitutional pissing match and if we just peed better, we would not be in this situation. So maybe that's like, I've now done tennis and urine. But I wonder if you could just help me help listeners understand why this framing of, you know, if you just didn't suck so bad and believe in norms and comity and a functioning senate and a court that cared about justice, this wouldn't have happened.

[Elise Hogue]

Well, who amongst us would not aspire to pee better, Dalia? I'm going to grant you that.

[Dahlia Lithwick]

Yeah, I mean, I think. Look.

[Elise Hogue]

Has the reproductive rights freedom movement made mistakes? Absolutely. And I was happy to discuss those with Michael Barbaro, just as I would with anyone. I think self evaluation is really important in progress moving forward. What I found really disturbing was the false equivalence that the mistakes we have made, which are prevalent and movements that are iterating and growing and grappling with things like structural racism and the way that they have impeded progress was somehow commensurate with a minority of people who have literally subverted democracy to get their way, who have made sure that, you know, restricting abortion goes hand in hand with voter suppression so that the majority cannot have a voice. Who has made sure that reproductive oppression goes hand in hand with court capture, which is what we're living through right now. Who has changed the rules and the norms and violated trust of their colleagues who were engaged in good faith efforts. And, you know, as I said on the show, and I'll say it again, if. If the central sin here is a belief in democracy, then we're guilty. Right? But I don't think that that pathway forward towards durable change and progress lies in conceding democracy as a way that we come to solutions that benefit the most people in this country. So, you know, if I'm a sinner, I'll take it. I'm going to keep fighting for that vision.

[Dahlia Lithwick]

This has been an amazing conversation with my friend and truly one of my inspirations, Elise Hoag, president of NARAL Pro Choice America, one of the leading groups that are fighting for reproductive freedom since 2013. And I really do again say that if this stuff is interesting to you, and I hope it is, her book, the Lie that Binds, published this past summer, is a must read. Elise, thank you so, so very much for your time. I know it's been a busy week.

[Elise Hogue]

Thank you so much, Dalia.

[Dahlia Lithwick]

Our second guest today is a dear friend of the show. Pam Karlin is the Kenneth and Harle Montgomery professor of Public Interest Law and a founder and co director of the Supreme Court Litigation Clinic at Stanford Law School. Her primary scholarship involves constitutional litigation, particularly with respect to voting rights and anti discrimination law. She's argued a bunch of cases at the court. She's been everywhere and done everything. And she's, as you all know, exceedingly funny. And we could use some funny. So, Pam, welcome back.

[Pamela Karlan]

Thank you for having me.

[Dahlia Lithwick]

And you should just know that we've had requests from guests on this show. Ali Mistahl a couple weeks ago said no Democrats should ask questions, only Pam should ask all the questions. And I've heard that parroted back at me all week. Pam, did anyone ask you to ask all the questions at this hearing on the Dem site?

[Pamela Karlan]

I can't really answer that question because that would be a policy question and I can't answer it. But the answer is no.

[Dahlia Lithwick]

Okay. I know you were not watching every minute the way I was, but I wondered if in your general sense of what happened at these hearings this week, you have some top line takeaway about anything that was really different or arresting or startling, something that we may have missed or something that, for you was a marker of, huh? This is different even from John Roberts, from Neil Gorsuch, from Brett Kavanaugh.

[Pamela Karlan]

So I think this hearing, it's hard to imagine a basement below the cellar into which this hearing went, which is you had a hearing that shouldn't have happened in the first place because we shouldn't be having a nomination now. But beyond that, it was a hearing in which the Republican members of the committee, the majority of the committee, had announced they were going to vote for the president's nominee before they even knew who the nominee was. And you had a nominee who refused to answer even some questions. I mean, the one that I found the most shocking, in a way, was the Amy Klobuchar question about do you think that intimidating voters is illegal? And the correct answer to that question for somebody who's trying to nimbly avoid doing much is to say there is a federal statute that makes it illegal to intimidate voters. Whether a particular act arises to the level of being illegal under that statute is something that I can't answer in a hypothetical situation. But to refuse to answer whether intimidating voters is illegal or not is to say there's no point to having hearings here at all. Because I'm going to tell you absolutely nothing that will enable you as a senator to make any kind of decision about whether you should vote to confirm me or not. You know no more at the end of the hearing than you knew at the beginning.

[Dahlia Lithwick]

The one that similarly rattled me, Pam, wasn't even voter intimidation. It was again Senator Klobuchar the next day, saying, people are trying to decide if they should vote in the midst of a pandemic and they want to know if they can vote by mail. Is absentee voting a part of democracy? I think the correct answer to that, again, is yes. And the reason it floated even above the voter intimidation and the, you know, can the president unilaterally delay the election or, you know, is a peaceable transfer of power? All of which she refused to answer. The reason the absentee ballots rattled me is that the implication that this is an open question when it is, in fact, the party line? It is the posture that is being taken by Donald Trump and by Bill Barr without any evidence that there's some problem with mail in balloting. I felt as though it was different in kind only because it was injecting into the discourse the very uncertainty that whips up a lack of trust in absentee voting.

[Pamela Karlan]

Well, I mean, I go back to something you wrote right in your Slate column right after the nomination here, which is you tried to put yourself into the position of asking yourself, if you were Judge Amy Coney Barrett, how would you feel about what's going on here? And I think the line you use is like, how would you feel standing next to a man you wouldn't trust to be in a room alone with your teenage daughters? And the thing here that's so shocking is I don't understand why she wouldn't simply say, given, of course, I can be fair. But I recognize that many people may think that, you know, a president who promised to put me on the Supreme Court so I could vote for him to stay in office, I can understand how many Americans might think that that was improper. So I'll recuse myself from cases involving this election. I mean, I just, you know.

[Elise Hogue]

As.

[Pamela Karlan]

You can hear, I'm a little bit speechless because the idea, of course, the president can't change the date of the election. There's a statute that says that. So what is the cost of simply saying there's a statute that says that? I'm not going to answer whether in a particular case the president is or isn't complying with that statute. But, yes, there's a statute on the books.

[Elise Hogue]

And it's the same thing with the.

[Pamela Karlan]

Absentee voting, which is, yes, many states have changed their laws about absentee voting to make it easier this time around because of COVID Some people can vote absentee in all 50 states. I'm not going to talk to you about whether a particular extension or refusal to extend extend absentee voting does or doesn't violate the constitutional law. That might come in front of me. But I can tell you absentee voting is a thing in America, and it's been a thing in America since the Civil War, which, by the way, is where we got the 13th, 14th and 15th amendments.

[Dahlia Lithwick]

That was just a taste of my conversation with Professor Pamela Carlin of Stanford Law School. Slate plus members will hear the full extended version of that interview. You can become a Slate plus member by going to slate.comamicus+ and that's a wrap for this episode of Amicus. Thank you so much for listening, and thank you so much for your letters and your questions. You can always keep in [e-mail] or you can find [e-mail] Amicus podcast today's show was produced by Sarah Burningham. We had research help this week from Daniel Maloof. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcasts. We'll be back with another episode of Amicus next weekend. Until then, take good care of your health, take care of each other, make a plan to vote. Hang on in there.