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Part 2 of a 2 part series. Read part 1 here.
It’s generally assumed that autocrats are brutes who operate with no subtlety, seizing power through jackbooted actions, imperious edicts, media lockdowns, and such. Yes, many are brutes, but actually it’s even more common for anti-democratic power grabbers to be well-heeled sophisticates who make their play not by violent raids, but by advancing on little cat feet, noiselessly closing in on an unsuspecting democratic public. In many countries today, for example, wannabe autocrats, plutocrats, and theocrats have hit on a surprising channel for achieving their despotic ambitions: Supreme Courts.
While these top judicial bodies purport to be bulwarks of justice, most are secretive, aloof chambers of absolute governmental authority run by a mere handful of unelected judges. Obscured from the public, media, and lawmakers, they are susceptible to capture by quick political strike or by patient, stealthy schemers. And the prize is worth the effort, for these high and mighty judges can both enact measures of autocratic control and apply a patina of legality to emerging autocracies. Put plainly: Own the judicial robe and you own the law.
No surprise, then, that Hungarian despot Viktor Orban moved quickly to remake his country’s courts, which subsequently sanctioned a rigged election that cemented one-party rule and maintained the oxymoron he calls an “illiberal democracy.” Or that Vladimir Putin recently used his control of Russia’s Supreme Court to arbitrarily kill the nation’s most important human rights organization. Thus, with one court ruling–POOF!–Putin disappeared a major political force opposing the fabrication that his regime is a continuum of Russian glory under strongman rule. Well, yes, you might think, that happens in Russia, China, Venezuela, and places like that … but not here, where We the People are on-guard, and no one, not even a president, can pull off anything as huge–as seemingly impossible –as a Supreme Court coup.
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Meet Leonard Leo
You’ve probably never heard of Leonard Leo, but this obscure, far-right ideologue is a major capo in the tight little world of the anti-democracy extremists who hold an iron grip on today’s Republican leadership. A lawyer, Leo is a fanatic devotee of the plutocratic fiction that our Constitution was intended not as a founding document for democracy, but as a legal structure for enshrining property rights as supreme over all others and protecting the wealthy from the democratic majority.
Yes, he’s nuts … but he’s also cunning. In only 20 years, this shadowy Washington operative rose from the pack to become a darling of Washington’s right-wing social swirl and the kingpin of corporate and GOP efforts to impose their agenda on America.
Three big factors boosted Leo’s star:1 His quasi-religious devotion to property-rights supremacy squares perfectly with the ambitions of laissez-fairyland billionaires (including the Koch family) who are major GOP money players. Leo proved to be an ace schmoozer of these self-entitled egos. 2 He came with a readymade group of litigious warriors who, in the 1990s, took over and weaponized the Federalist Society (FedSoc), transforming this small, conservative legal education outfit into a nationwide force of reactionary lawyers eager to generate court cases, shop for judges, and sue-sue-sue to undermine everything from civil rights protections to labor law. 3 Leo had a BIG plan: Use huge sums of dark money, deceitful media campaigns, and a cluster of front groups to pack the Supreme Court.
Leo has long been a powerhouse networker, intently developing useful contacts, who have even-more-useful contacts, all of whom can help him build his organization, profile, and ability to advance himself and his vision of a plutocratic America. In 1991, opportunity knocked when George “Daddy” Bush plucked one of his ideological buddies to become a Supreme. Leo jumped to join the bare-knuckled brawl to confirm an undistinguished federal judge named Clarence Thomas.
From this experience, Leo got a feel for the possibilities of court capture. If he could elevate an extremist–credibly outed as sexual harasser–to the highest court in the land, most others should be a walk. And he committed FedSoc to that goal. With a cadre of like-minded ideologues, he began engaging uber-rich right-wingers who wanted longer-lasting political payoffs than from funding legislative candidates and tea party-style rallies. Sure enough–pressured by Leo’s expanding web of funders, activists, and front groups–state and national GOP officials began appointing arch- conservatives to judgeships around the country. And these partisan jurists began competing to out-extreme each other in hope of rising even higher up the ladder of Republican judicial politics.
Then came Leo’s big break–the presidency of Bush the Younger. Essentially a wholly-owned subsidiary of Corporate America, W’s administration was wide open to Leo’s scheme of incrementally installing a reliably right-wing court committed to plutocratic rule. Leo promptly ingratiated himself with White House operatives, especially one young, hyper-ambitious associate legal counsel: Brett Kavanaugh.
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Although Leo had no official position (and thus no requirement to disclose his actions and financing), a 2003 email from Kavanaugh’s White House office designated Leo as coordinator of “all outside coalition activity regarding judicial nominations.” As such, Leo became a chief picker of Bush nominees to various federal courts and a chief fundraiser, strategist, and director of political campaigns to win their senate confirmation battles. Then, the Supreme Court doors swung open twice in five months: With William Rehnquist’s death in October 2005 and Sandra Day O’Connor’s retirement in January 2006.
Opportunity! Backed by his buddy Brett, Leo helped choose and then orchestrate the GOP’s PR campaigns to hand lifelong seats on America’s top bench to Federalist Society members John Roberts and Samuel Alito–two hardline corporate supremacists and judicial activists. Their right-wing views could wreck their confirmation chances–but only if widely known. Since both were nonentities to the media and public, Leo simply invented benign, apolitical personas to cloak their extremism. Roberts, for example, charmed senators with a baseball metaphor: As top judge, “It’s my job to call balls and strikes, and not to pitch or bat.” He lied. Almost immediately, Roberts advanced corporate and GOP power by making aggressively political “judicial law,” including such outrageous anti-democratic rulings as Citizens United and the gutting of the Voting Rights Act.
What money can buy
To pull off the confirmation fraud, Leo tapped a few undisclosed, special-interest donors for least $15 million to poll-test messages, stage media “briefings,” run political ads, and mobilize astroturf front groups. Forget justice, competence, judicial integrity, and all other ethical niceties–Leo’s game is to own the Court. As he later confided to a closed-door meeting of ultra-right leaders, “We’re going to have to understand that judicial confirmations these days are more like political campaigns.”
How’s that for a bottom-feeding ethical standard? Sure enough, no one has done more to degrade today’s judiciary than this GOP electioneering guru and his ring of political accomplices. They have brought the corrupt money, fraud, banality, trickery, dishonesty, and rabid partisanship of modern campaigning all the way to the Supreme Court.
Following his successful enrobing of Roberts and Alito, Leo became a golden boy to right-wing billionaires eager to control court decisions. All they had to do was pay-to-play–and Leo made that easy. To win judicial appointments for corporate loyalists, he used tax law loopholes to set up a web of “charities” allowed to spend unlimited sums–without disclosing to the public who really is putting up the money. His extended FedSoc operation suddenly began drawing multimillion-dollar bundles that track back to such plutocratic family names as Coors (beer), Searle (drugs), Mercer (Wall Street), Scaife (banking, media), Olin (chemicals, guns) … and, of course, Koch. (Donors Trust, just one of the brothers’ money channels, pumped $7 million into the Federalist Society in 2020 alone.)
In addition, Leo has a tightly controlled complex of about a dozen other interlocking money fronts that funnel anonymous donations into his court scheme. These include outfits with such non-descript monikers as Judicial Crisis Network, Wellspring Committee, America Engaged, BH Group, and Rule of Law Trust. Of course, the money powers have rigged the rules so you and I can’t see inside these hidey holes to spot specifically who is trying to buy a judiciary to serve them. But we can sense the scale by looking at the monstrous size of the checks gushing into these front groups. In February 2016, for example, when Supreme Court right- winger Antonin Scalia suddenly died, Leo rushed out an unprecedented, hugely expensive campaign to prevent President Obama from naming Scalia’s replacement. In this period, Leo’s Judicial Crisis Network (JNC):
- banked a $17.9 million check from one anonymous donor
- reaped a $23 million donation that was channeled through the related Wellspring Committee (an identity-laundering group seeded by Koch money)
- received another $14.8 million wad through the Wellspring washeteria a few months later
- and took in four separate incognito payments of $15 million each, possibly from the same source.
And that’s just one campaign by one of Leo’s fronts. A 2019 Washington Post investigation uncovered $250 million in dark money donations to Leo’s partisan groups between 2014 and 2017. Add in totals from 2018, and his judiciary war chest topped $400 million. Today? There’s no telling–current numbers have not been revealed.
Welcome to Leo’s dream world
Leonard Leo and his Merry Band of Billionaires are not merely trying to put some arch-conservatives on the Court. Their intent is nothing less than a structural dismantling of our democratic framework, creating an unAmerican America by pushing judges who will hammer plutocratic government into the law of the land. We’ve actually been here before. [Read more]
Excuse me, but Corporate America and the mega- rich don’t pony up such extravagant levels of cold cash because they believe in “Equal Justice Under Law.” Their concept of justice, fervently hustled by Leo & Company, is just us.
Trump’s judge whisperer
When The Donald was gaining ground in the 2016 GOP primary, he needed to signal an anxiety-ridden party establishment that he wasn’t totally loony. His top legal advisor (a FedSoc loyalist) proposed a political ploy: Release a short list of Republican lawyers (seemingly mainstream, but fiercely corporate and reliably right-wing) that Trump would consider for any Supreme Court vacancies. The candidate eagerly signed on, and guess who was brought in to draw up the list of potential nominees? Right, Leonard Leo. Preposterously, this anti-democratic coup schemer was made gatekeeper to America’s supreme judicial temple. With unintended irony, Trump pledged that his nominees would be “representative of the kind of constitutional principles I value.”
All three of Trump’s Court nominees were Leo picks: Neil Gorsuch, Leonard’s old pal Brett Kavanaugh, and Amy Comey Barrett. And all were deceptively installed in their power positions by a handful of corrupt, covert political interests. In an ongoing investigation of this dark money assault, Sen. Sheldon Whitehouse reports that secret donors laundered $37 million through JCN alone to install these three on the court: $7 million in 2016 to prevent Obama’s court choice, Merrick Garland, from even getting a confirmation hearing; $10 million in 2017 to elevate Gorsuch; $10 million in 2018 in a desperate, dishonest PR push to salvage Kavanaugh’s disgraceful appointment; and more than $10 million in late 2020 to shove Barrett onto the Court only 7 days before America voted Trump out.
Thus, the grand scheme of Court Capture, first proposed by tobacco lobbyist Lewis Powell in a secret 1971 memo (see the March-April 2022 Lowdown), was effectively operationalized by Leo’s veiled cabal of billionaires, corporate supremacists, right-wing extremists, and Republican fixers. All six members of the Alito-Barrett-Gorsuch-Kavanagh-Roberts-Thomas supermajority of donor-approved, anti-democracy jurists are spawn of the scheme. Unsurprisingly, all six are also active participants in Leo’s Federalist Society. Moreover, under Leo’s clandestine White House influence, 86% of Trump’s nominees to the upper levels of our nation’s democratically unaccountable federal judiciary (the Supremes, plus the judges in our 11 appellate courts) are products of his FedSoc organization.
For three decades, while the far right focused quietly but intently on the courts, Democrats and most progressive groups underestimated this GOP encroachment, genially playing patty-cake politics by accepting the party nominees’ smiling pledges to be impartial, apolitical arbiters of the law. Stop it! It’s now plain that a hyper-partisan cabal of judges, funders, and operatives has grabbed supermajority control of the Supreme Court itself and is moving rapidly to impose a plutocratic, theocratic regime over America.
The jarring wake-up call was May’s leaked draft of Alito’s imperious proposal to annul the constitutional right (and innate human right) of women to control their own bodies. Apparently, at least five justices intend to sign such a decree–even though all (including Alito) lied to the US Senate and public by promising in their confirmation hearings to respect multiple Court precedents establishing Roe v. Wade as law of the land.
No surprise. After all, if the process of putting a majority of justices on the Court is reduced, as Leo has done, to monetized political campaigns, then we get a political court that serves its benefactors–not law, justice, or the common good. This is the court that Leo built. Wholly illegitimate as an institution of justice, it warrants neither respect nor obedience. Progressives across the board must join in calling out this fraud and going after its political subversion of our democratic ideals. Go after it, because it has made clear it is coming after you.
Part 2 of a 2 part series. Read part 1 here.
👇 DO SOMETHING 👇
The high and mighty Supremes are so unaccountable to the public that it can feel as though protest is our only recourse to their decrees. And that road is not to be underestimated. As we write, tens of thousands are rallying to protest the leaked draft of a decision that would overturn Roe v. Wade. But the smart folks at Fix the Courts have a few proposals for systemic fixes that would tilt things at least modestly toward transparency and public accountability. For instance:
Establish a code of ethics. What if Supreme Court justices were bound by the same code as all other federal judges? You know, like being required to disclose possible conflicts of interest. (It’s shocking that they’re not, right?)
Set term limits. Limit service on the high court to 18 years.
Increase media and public access. End the ban on media broadcasting of oral arguments.
More suggestions at fixthecourt.com
Lisa Graves of True North Research (truenorthresearch.org) deserves a big tip of the Stetson for relentless digging into the plutocratic money behind today’s “just-us” system. Check out Hightower’s conversation with Lisa here.