"When you find hypocrisy in the daylight, look for power in the shadows," Sen. Sheldon Whitehouse (D–R.I.) said during Tuesday's Supreme Court confirmation hearing for Amy Coney Barrett. That power, Whitehouse continued, can be found in conservative "dark money" groups, which he posited are propping up Barrett so she can upend same-sex marriage, abortion, and the Affordable Care Act.
This theory may stir outrage among Whitehouse's supporters, but it is not grounded in reality.
Though the senator's detailed presentation came complete with tables and flow charts, his argument can be distilled down to this: Conservative groups have made hefty donations to conservative causes, which have then been victoriously litigated in the courts, and the money is somehow to blame. He took particular issue with what he called "the Roberts five"—a 5-4 majority that has issued a series of 80 Supreme Court rulings that Whitehouse deems right-leaning wins. There's a conspiracy there, he claims.
"Eighty cases under Chief Justice Roberts that have these characteristics. One, they were decided 5-4, by a bare majority. Two, the 5-4 majority was partisan, in the sense that not one Democratic appointee joined the five," said Whitehouse. "And the last characteristic of them is that there is an identifiable Republican donor interest in those cases, and in every single case that donor interest won."
Puzzlingly, those cases did not pertain to same-sex marriage, abortion, or the Affordable Care Act, all of which have recent decisions that cut in the liberal direction. See Obergefell v. Hodges (2015), the 5-4 decision that legalized gay marriage, June Medical Services LLC v. Russo (2020), the 5-4 decision that struck down a restrictive Louisiana abortion law, and NFIB v. Sebelius (2012), the 5-4 decision that upheld the individual mandate of the Affordable Care Act.
Also worth mentioning: Democrats receive more in "dark money" contributions than Republicans these days, but one would be hard-pressed to find evidence that these Supreme Court decisions were the result of such donations.
Whitehouse's argument requires both conjecture and imagination to fill in the gaping holes left by inconvenient facts. For example, he cited President Donald Trump's animus toward the Affordable Care Act as more evidence of a judicial conspiracy. But presidents often express political views—that is, after all, in the job description. And it was 2016 Democratic nominee Hillary Clinton who said that she would establish litmus tests for justices, openly campaigning on selecting nominees that would promise to strike down Citizens United v. FEC and uphold Roe v. Wade.
Contrast that with Barrett's answer today when asked if she had made any promises to rule any one direction: "Absolutely not. I was never asked. And if I had been, that would have been a short conversation." She reiterated that multiple times over the course of the hearing.
Though Whitehouse's conspiracy theory is likely on the fringe of his colleagues' views, the central idea is not. Activists and politicians alike have characterized Barrett as a precedent-wrecker. Democrats' focus thus far has been almost exclusively on her potentially striking down the Affordable Care Act—another argument that is not grounded in reality.
"First, while the predicament of patients like those described by [Sen. Chris] Coons et al. figures prominently in the public policy debate about Obamacare, it is irrelevant to the legal question of whether the Affordable Care Act (ACA) is constitutional," writes Reason's Jacob Sullum. "Second, there is little reason to think that Barrett would in fact vote to overturn the law. Third, even if she did, there does not seem to be a majority on the Court in favor of that outcome."
Similar logic can be applied to abortion and same-sex marriage. Speaking at a 2013 law forum, Barrett said that the "fundamental element" of Roe—that a woman can choose to have an abortion—will likely stay intact, and that the question now is whether or not those procedures "will be publicly or privately funded." During today's hearing, she called Obergefell an "important precedent."
But even if she was part of the alleged secret plot, the Senate is not considering Barrett for a role in a monarchy, nor is she running for president. No Supreme Court justice, including Barrett, is able to snap his or her fingers and overturn precedent just because he or she might want it so.
"Judges can't just wake up one day and say, 'I have an agenda. I like guns, I hate guns. I like abortion, I hate abortion,' and walk in like a royal queen and impose their will on the world," she said today. "You have to wait for cases and controversies, which is the language of the Constitution, to wind their way through the process."