Always a Loyalty Test
Authoritarianism needs a corrupt judiciary. The Federalist Society paved the way.
President Trump’s recent tirade against Leonard Leo doesn’t mean much in itself. If the Federalist Society money man does what Trump wants, or if Trump’s attention gets diverted elsewhere, the President will simply forget that he ever said that Leo is a “sleazebag” who “probably hates America.” In fact, Trump’s first five judicial nominees have all been members of the Federalist Society. There is no reason to report on the event—as some in the media have—as if it marks a real sea change in the relationship between the Federalist Society and the rise of authoritarianism in America. The only interesting change is that Trump is simply making the nature of the relationship a little more transparent.
From the beginning, the project that Leonard Leo and the Federalist Society pursued was the dismantling of democracy through the corruption of the judiciary. Leo recognized early on that democracy would never deliver the conservative agenda he believed necessary to save America from its immoral and irreligious ways. The answer was to pack the judiciary with right-minded individuals who would in effect legislate a new society from the bench. The way to do this was with money. Leo has raised literally billions of dollars for the project, which he threw into a massive affirmative action program for rightwing ideologues in the judiciary. He appears to have helped organize the “adoption” of key justices by wealthy families. The story of this corruption of the judiciary has been told many times and very well.
In most of the American coverage of this process, the story has been framed as an effort by people with a certain, conservative ideology, to influence the federal judiciary. Had it occurred in any other country, however, we would more likely say that Leo simply found a way to package and sell the power of the judiciary to a sector of very rich people.
In his first term, President Trump made considerable advances on the Federalist Society agenda. He appointed 226 federal judges. Above all, thanks in part to the arguably unconstitutional actions of Mitch McConnell in blockading former president Obama’s appointment of Merrick Garland, he secured three appointments on the Supreme Court. That same Court in turn bears chief responsibility for returning Trump for a second term. Had the Court had a different composition, the case against Trump for criminal conspiracy to overturn the 2020 election would likely have proceeded in a manner befitting the seriousness of the alleged crime, and Trump’s political career would have ended. Instead, in Trump v. United States, we got a decision on presidential immunity that, notwithstanding stiff competition from Citizens United v. Federal Election Commission and Dredd Scott v. Sandford, will go down (if we are lucky) as the worst in the entire history of the court.
Trump himself knows very well the nature of the bargain that the Supreme Court’s Federalist Society ideologues struck. While exiting the House chamber after a speech, Trump patted Supreme Court Chief Justice Roberts on the shoulder and said, “Thank you again. I won’t forget it.” (Trump later claimed it had nothing to do with Robert’s role in letting him escape accountability. Sure.)
In this context, Trump’s hate-talk is revealing not for what it says, but for the fact the Trump is evidently willing to make the truth of the Federalist Society project plain. Trump has zero interest in the supposed ideological project of the Federalist Society. He doesn’t want a judiciary that is faithful to the creed of some graduate school fundamentalists; he wants a judiciary that is personally loyal to him. And why should the Federalists have expected otherwise? The nature of a corrupt bargain is that the person on the other side of the deal is in it for money and power. Trump wants what the Federalist Society has been working to build all along: a corrupt judiciary that answers to money and power.
Just to underscore the point, Trump now appears to be working with Mike Davis, president of a group called the Article III Project, which until very recently boasted that it “brings brass knuckles to fight leftist lawfare,” on its home page. What this means is that we are now at the part of the story where the monster the Federalist Society created is turning around to eat its creator.
The more telling remark in this soon-to-be-forgotten spat over “sleazebag” Leo comes not from Trump but from Leonard Leo. In response to the insult, Leo appeared calm and gracious. In a brief statement in response, Leo refrained from criticizing the President. Rather, he wrote, “I’m very grateful for President Trump transforming the Federal Courts, and it was a privilege being involved.” Leo added, “There’s more work to be done, for sure, but the Federal Judiciary is better than it’s ever been in modern history, and that will be President Trump’s most important legacy.”
The supposed split between Trump and Leo—not much of a split after all, given Trump’s current judicial nominees—simply pulls back the cover on the alliance. Trump does not care about the Federalist Society’s ideological project. His alliance with Leo was simply a power grab. Leo is essentially in the same position that Germany’s industrial elites were in a few years after making the deals that would bring Hitler to power. They too turned to the bad guy to get rid of the communists and other wokesters of the time. Long after it would have been in their interest to get out, they kept insisting there was “more work to be done.”
The bottom line is that democracy needs an independent judiciary. Authoritarianism, on the other hand, needs a corrupt judiciary, and that is why Trump and his people are determined to destroy our democratic judiciary. And the Federalist Society paved the way. If American democracy manages to survive the current assault, one of the first things Americans will need to do is to reform the judiciary. The Supreme Court is broken—and the breakage is about more than just the rampant use of freebie mobile homes, luxurious fishing vacations with cronies, and blatant conflicts of interest. We need a democratic judiciary—one as immune as possible to the kinds of corruption playing itself out before our eyes.