| Each time the Trump administration announces in unison a surprising new initiative, I keep getting a sense of déjà vu. It took me a while, but I know where I’ve experienced this before—clerking at the United States Supreme Court. | | I clerked for Justice Sandra Day O’Connor during the 1989 Term. We had at least three cases where impact litigation had been brought to invalidate Roe v. Wade. Early in the clerkship, the Justice, or “SO’C” as we came to call her, asked me to be the “abortion clerk,” overseeing these cases. That meant I became a favorite of the Federalist Society’s Supreme Court cabal even before I knew there was a cabal. She had refused to invalidate it the preceding Term much to Justice Antonin Scalia’s public frustration, but there was still hope in the conservative ranks at the Court that she would change her mind. So I was befriended by cabal members, who chatted me up to see what she was thinking. My major message to them was, “Good luck.” The cabal tried out all sorts of theories on me. When they realized she just wasn’t going to budge, the Roe challenges that Term disappeared, settled or withdrawn. | | I raise this story not to re-litigate Roe but rather to point to the clerk “cabal,” as they called it themselves. They were meeting behind closed doors to design their right-leaning campaigns. They never bothered to tell me that they were on a mission to invalidate Roe, not simply engaging in friendly clerk conversation. Looking back, though, I can see their work. At the time, there were odd, unexpected surprises. Early in the Term, one of my favorite majority opinions that I had worked on for Judge Edward Becker in the U.S. Court of Appeals for the Third Circuit was summarily reversed out of the blue. No fellow clerk working on the case had come to me to ask about it even though we all knew who had clerked for whom below. Two of my three co-clerks were conservative and when I asked generally what happened, I remember one shrugged apologetically. He knew what had happened obviously. All of a sudden I knew there was some kind of game being played I couldn’t win. Forget winning; I couldn’t even play. | | The cabal was a bunch of white guys. There was a female clerk who was also an ardent Federalist Society member, but she was rarely included in their meetings. That was consistent with Federalist Society culture. I attended a “Fed Soc” meeting once, shortly after I had won a major federalism case at the Supreme Court, Boerne v. Flores, and was struck by the extraordinary uniformity of the members. Almost all were white males sitting in a sea of dark, largely identical suits. They were discussing my case, and a mistake was made, so I raised my hand. Even though I was not dressed in a dark suit and couldn’t be missed, they refused to call on me. Not long after that, a leader reached out to me to ask me why women didn’t flock to them. Hmmmm. | | The Trump administration’s unexplained but clearly pre-orchestrated policy announcements feel the same way to me and I know for many others, and there is a good reason for that. Its blueprint, Project 2025, was hatched in private by conservatives at the Heritage Foundation (and affiliated with the Federalist Society) on a mission to install a “unitary executive” quickly and to create a database of conservatives schooled about Project 2025’s principles to serve in the next Administration. This subversive plan became an issue during the 2024 campaign, but Trump ran away from Project 2025 when it received major negative pushback. Yet, it is this Administration’s roadmap. To this day, few Americans have read its nearly 900 pages and no one on the right has seen fit to explain to the general public the “why” behind its jarring policies. Like the Court’s clerk cabal, they have privately shared conservative goals, but public transparency is not one of them. It’s all about reaching political milestones, without public deliberation. | | This is because they know they won’t be well-received by a majority of Americans. They are still smarting over the rejection of their culture war positions despite their impassioned shaming. For years, over 60% of the American people have rejected their stances on LGBTQ rights and abortion. They failed to persuade the people on these issues, so now they want a government that will impose their beliefs on everyone else. They cry that the criticism of those positions as “religious discrimination,” rather than what it is: other people’s opinions. | | Instead of laying out a philosophy of government we can all debate, Americans have been treated to a relentless rollout of one noxious element after another. They are often unconstitutional, illegal, and/or immoral, but that is irrelevant to them, because, again, the ends justify the means. For example, the end of deporting criminals justifies arresting and detaining hundreds of law-abiding people who have made extraordinary contributions to the United States. The end of consolidating more power in the presidency justifies Trump’s relentless attempts to fire anyone and everyone in the Administration who doesn’t dance to his tune. The end of protecting a supreme presidency justifies the refusal to release the previously-promised Epstein files. The end of shielding the all-powerful President from jokes justifies FCC Chairman Brendan Carr’s pressure on ABC and Disney to gag Jimmy Kimmel. | | The smug, self-satisfied demeanor of Treasury Secretary Scott Bessent, one of the most frequently interviewed Trump officials, is the perfect image of this Administration’s attitude, which is typically, “we know better than you, so stop complaining.” Carr has the same visage. | | It reminds me of the tight smiles I used to get from the cabal when I would say the Justice supported Roe regardless of their latest theory. Unfortunately for them, Justice O’Connor wasn’t a pushover despite Scalia bullying her in the Webster v. Reproductive Health Services case, saying that her position on Roe could “not be taken seriously.” She never backed off. | | The surprise attack is part of how cabals and the Trump administration operate. They don’t care what you think of what they are doing…until you disagree. Then they want you to be quiet. Don’t be. |
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