4

THE LEAST DANGEROUS BRANCH

When President Obama set about to nominate a replacement for Justice Scalia I coined a hashtag—#NoHearingsNoVotes—that telegraphed a principled opposition to tipping the Supreme Court very hard to the left in an election year, an opposition that Senate Majority Leader McConnell had already resolved upon. It was an opposition independent of the name and qualifications of whomever President Obama would eventually send to the Senate—it would turn out to be the very able jurist, but “living Constitution” enthusiast, Judge Merrick Garland—and that opposition to holding hearings and conducting votes would stick. Only one Republican senator broke with the Leader, Illinois’s Mark Kirk, and he was defeated in November.

—Hugh Hewitt¹

That’s conservative commentator Hugh Hewitt explaining how the Right foiled President Obama’s effort to fill the final Supreme Court vacancy that arose during his presidency. Opposition to anyone whom Obama might nominate, defiantly announced within hours of Scalia’s death. They play hardball.

The Right seeks to control both state and federal courts, working with aggressive campaign operatives to run extremist candidates for state judgeships and promoting federal nominees through the Federalist Society, the Judicial Crisis Network, and the Heritage Foundation—an infrastructure funded lavishly by the Koch brothers; the Mercers, another extremely wealthy conservative family; and the Chamber of Commerce. This secretive network has had a demonstrable impact on the nation’s courts, resulting in an increasingly reactionary Supreme Court and business-dominated state courts, with far-reaching impacts on social justice. Data shows that elected judges favor contributors and partisan interests, and Republican federal appointees rule for corporate interests over average people. And conservatives infused the importance of the courts into their political strategy, pushing it down so that the base of the Republican Party began to see the judiciary and its rulings as a key voting issue. Donald Trump represents the culmination of this strategy, whereby evangelicals have embraced a philandering sexual abuser because he will give them the judges they want, dedicated to overturning Roe v. Wade.

Complacent after years of assuming the courts were a bulwark for liberty and personal rights, the Left blithely ignored the radical change that was happening right before their eyes. During the years of the Warren Court, the liberal justices issued opinions upholding the right to privacy, limiting abuses by police and government officials, and ending legal segregation, allowing many to think the courts would protect us without our needing to protect them from infiltration and dominance by the Right. Unfortunately, the Left is still somnolent as well as sanctimonious, with many finding it distasteful to mix politics and judicial selection, even in the face of an ever more conservative judiciary.

In a perfect world, I would favor a détente of sorts between Right and Left over the courts; indeed, I would vastly prefer a professional judiciary that was immune to politics. But because the Right has gone from conventional to nuclear arms in the battle for the courts, progressives need to deploy an effective counterweight to ensure our courts aren’t captured by reactionary zealots. As conservatives have done, we need to develop a pipeline for state court candidates and federal appointees and a well-resourced support system for them. Along with fighting for good judges, we need to advance a vision of the Constitution. Is it one that understands that the document was drafted to serve “we the people” or one that purports, like the Right’s originalism, to mind-read the views of eighteenth-century slave owners to determine the “meaning” of a particular vague phrase, with the inevitable conservative outcome? We need to develop and disseminate persuasive approaches and theories to challenge conservative legal arguments and constitutional interpretation, and we need to make sure to educate both elected and appointed judges with seminars, forums, and writings to ensure they are aware of, and can implement, our ideas.

GETTING ON THE WALL

Legal groups were built into the original DNA of the conservative infrastructure. The godfather of the effort to build a battalion of right-wing institutions, future Supreme Court justice Lewis Powell, recognized that the courts were a key battleground. Along with the Heritage Foundation, ALEC, and the other organizations that helped solidify the right-wing hold on our branches of government, the Federalist Society and conservative public interest law groups were created to generate legal scholarship and litigation strategies and, crucially, to build a pipeline of dependable reactionaries to take seats on the state and federal benches. A supportive legal structure enabled through the appointment or election of aligned judges, the development and normalization of legal theories to justify conservative positions, and the hiring of litigators to move those theories into practice would ensure that the Right’s policy goals wouldn’t be thwarted by an independent judiciary.

The Left had pioneered the concept of public interest law firms, with the ACLU and the NAACP Legal Defense and Educational Fund (LDF) being among the most prominent examples. Inspired by legal victories of those groups and others, conservative lawyers founded their own organizations to advance their agenda.² The Powell Memo contemplated that the Chamber of Commerce would take the lead on pro-business litigation. And while the chamber did quickly move to establish the U.S. Chamber Litigation Center in 1977, other groups such as the Pacific Legal Foundation, the Alliance Defending Freedom, and the Project on Fair Representation also emerged to challenge environmental rules, access to reproductive health care, affirmative action, and public education.³ These legal groups may have been inspired by the Left’s successes, but they were quite different. Unlike the nonpartisan and principled ACLU and NAACP LDF, which sometimes work at cross-purposes with the Democratic Party and sometimes, in the case of the ACLU, even against the progressive agenda, legal groups on the right tracked the Republican platform. Moreover, their work was significantly supported by corporations because their litigation advanced the companies’ bottom lines. Exxon, for example, lavishly funded the Pacific Legal Foundation, which has vigorously litigated to undermine environmental policy, including efforts to control global warming.⁴

But conservatives soon recognized that they needed to do more than sue. In a 1980 report, Michael Horowitz lamented that the existing organizations had not met “the great need for vibrant, intellectually respectable conservative law/action centers.”⁵ To enable lasting and fundamental change, Horowitz said, a strategy was necessary to connect visionary thinkers with legal practitioners to spark radical new approaches to the law and infuse them into the practice of law. Only by making connections between the legal academy and political actors, Horowitz determined, would the movement be able to “redefine what is moral in law.”⁶ Of course, political parties and elected officials also help drive a constitutional narrative, but they need experts to generate the ideas and provide validation for the media and the public.

The Right’s goal was to create a framework to move legal ideas that were “off the wall,” in Yale law professor Jack Balkin’s useful construct, to “on the wall.” Balkin describes the process as one where legal theory interacts with social movements and politics, and he points to conservative scholars’ arguments challenging the Affordable Care Act as providing a textbook example of the process. Balkin observes that “arguments move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument. Moreover, it matters greatly who vouches for the argument—whether they are well-respected, powerful and influential, and how they are situated in institutions with professional authority or in institutions like politics or the media that shape public opinion.”⁷

Founded in 1982, the Federalist Society epitomizes the type of institution described by Balkin, designed to move controversial or disfavored legal theories into the mainstream by ensuring a powerful network of people willing to endorse and promote them. While there certainly were prominent conservative jurists prior to the founding of the Federalist Society, conservatives had long believed that legal academe and hence the jurisprudence of the courts was dominated by liberals, and that they needed another channel to promote their agenda. And indeed, it is true that law professors lean to the left, just like journalists. But as with the media, just because the personal views of academics skew liberal does not mean they are producing content to serve liberal political goals. Indeed, sometimes liberal law professors exult in upending the progressive agenda by endorsing right-wing judicial nominees because they are “qualified” and by undercutting critical policies through provocative and ill-timed blogs or comments. They are hardly a dependable arm of the progressive movement. Nonetheless, the Right wanted to provide a forum to drive more politically oriented scholarship to counter that perceived liberal academic “bias.” The Federalist Society allowed them a venue to meet, network, and support each other’s advancement, as well as to disseminate countervailing arguments to what they perceived as the dominant legal discourse.

Originally solely a student organization, the society was the creation of students at the University of Chicago and Yale Law Schools, who organized the group to provide themselves an intellectual home at otherwise allegedly liberal institutions. Lee Liberman Otis and Steven Calabresi, both still active with the society, had spent time on the presidential campaign of Ronald Reagan and felt a particular disconnect with the prevalent law school ideology.⁸ Quickly attracting funding and the interest of established conservative academics such as Robert Bork, Richard Posner, and Antonin Scalia, the organization spread to other campuses and from there began to establish lawyer chapters.

Its founding coincided with Republican domination of the federal government, allowing Federalist Society student members to vault into influential clerkships and legal jobs in the Reagan White House and the Justice Department. The Justice Department became almost an extension of the organization and, under Attorney General Edwin Meese, the agency worked to develop useful legal theories and strategies that would lead to conservative outcomes. When the young Federalist Society lawyers came to the Justice Department, they were seen by some mainstream Republicans as radical. Charles Fried, who served as the solicitor general for the last four years of Reagan’s presidency, called the positions society members drafted for Meese’s speeches “extreme,” including “questioning the constitutionality of independent agencies or suggesting that the president need not obey Supreme Court decisions with which he disagrees.”⁹ But Fried’s views were not shared by the attorney general, who embraced the ideas and the organization.

The synergy between the political appointees in the government and the fledgling legal organization gave it wings as its members became the leaders of the conservative legal movement, handing out jobs and access to high-placed allies.¹⁰ Most law schools now have a Federalist Society chapter, and the membership has grown to approximately sixty thousand students, lawyers, judges, politicians, and others interested in conservative legal thinking. Its budget has also grown to $25 million or more with generous funding from the anchors of right-wing philanthropy: the Koch brothers, the Bradley Foundation, and Richard Scaife.¹¹ At the society’s thirtieth anniversary gala in 2012, Executive Vice President Leonard Leo proudly noted the growth and impact his organization has had through the work of its “citizen-lawyers,” who serve in government as lawyers or judges, do pro bono litigation, or help provide intellectual fodder for the movement. In the audience were several senators, over twenty federal appellate judges, and at least one Supreme Court justice.¹²

The Federalist Society has an enormous influence in shaping politics, without being overtly political. Ann Southworth, who devoted a book to the organization, writes, “The Federalist Society pursues its integrating mission indirectly, by sponsoring conferences, generating publications, convening practice groups, promoting lawyers’ involvement in public affairs, and facilitating appointments of judges and government officials.”¹³ Amanda Hollis-Brusky, who has also written a book on the group, similarly relates that “the Federalist Society itself actually does very little in terms of direct legal and political engagement. Animated by the belief that ideas can and do have consequences, the Federalist Society’s focus has been on training and shaping its members through intellectual engagement, networking conservative and libertarian legal elites, and facilitating opportunities for members to put their shared legal principles into practice as ‘citizen-lawyers.’”¹⁴ But the society has no need to be obviously political because its work generating legal theories to challenge liberal policies and constitutional values, sharing them with politicians, finding lawyers to bring cases, and getting judges on the bench who can hear those cases serves conservative goals. (I don’t fault them for it. The American Constitution Society [ACS] was established to mirror this work but on the left. Much younger than the Federalist Society, ACS was founded after the infamous Bush v. Gore decision in which the Supreme Court handed the presidency to George W. Bush. It was an awakening for the Left, when it finally registered at least among a few people that we had been asleep at the switch and the Right had built a formidable network, promoted a conservative constitutional interpretation that had a surface appeal to the public, and begun to dominate the judiciary.)

For the Federalist Society, a key part of the work has been advancing “originalism” as the only acceptable way to understand the Constitution. This approach requires that we read provisions in that document as they would purportedly have been understood at the time. Conservative scholar Johnathan O’Neill describes originalism as holding that “although interpretation begins with the text, including the structure and relationship of the institutions it creates, the meaning of the text can be further elucidated by … evidence from those who drafted the text in [the Constitutional Convention] as well as from the public debates and commentary surrounding its ratification.”¹⁵ For some parts of the Constitution, this approach works—we still agree that thirty years old is thirty years old. But for others, many scholars argue that the theory doesn’t hold water: we can’t mind-read, so we often don’t know what the exact intentions were behind a particular word or phrase such as “reasonable” or “due process.” Even if we could time-travel back to the 1780s to ask James Madison what he meant, those understandings may well be very difficult to apply to current problems; and there’s no basis to suggest that the framers actually wanted twenty-first-century Americans to be governed by eighteenth-century worldviews.¹⁶

In his book The Living Constitution, professor David Strauss provides a thorough rebuke to originalism, pointing out the many flaws and problematic outcomes if applied consistently. For example, Strauss explains that under an originalist approach, the Supreme Court could not have found “separate but equal” unconstitutional as it did in Brown v. Board of Education. Few people could seriously argue that the nineteenth-century framers of the Fourteenth Amendment meant to attack segregated schools in the amendment.¹⁷ Even Justice Scalia had to admit that his approach didn’t always work, calling himself a “fainthearted originalist.” After all, he confessed, “I am an originalist. I am not a nut.”¹⁸ Other died-in-the-wool originalists confess that it is a leaky vessel. According to professor Randy Barnett,sometimes the words alone don’t answer a contemporary question due to facts that wouldn’t have been thought possible by the eighteenth-century authors. The text is often vague—how are we to understand what is a reasonable search under the Fourth Amendment when customs agents grab someone’s cell phone? Barnett admits that the Constitution “does not say everything one needs to know to resolve all possible cases and controversies.” How judges evaluate cases under these circumstances is something even originalists don’t agree on among themselves.¹⁹ But they do tend to agree that all the results should be conservative.

Southworth adroitly observes that the Federalist Society—and the legal Right, generally—have “sacrificed philosophical coherence to achieve political objectives.”²⁰ And those political objectives are what matter. “They believe that the text of the Constitution strictly limits what Congress and judges can do,” says Samuel Issacharoff, a professor at New York University School of Law. “So they embrace a whole series of doctrines that say Congress can’t do anything unless it’s specifically authorized in the Constitution. And then administrative agencies can’t do anything unless Congress has specifically authorized it by law. For decades, judges thought it was permissible to fill in the gaps left by the ambiguities in the Constitution and laws. But the current conservatives have an activist agenda to peel back the power of government.”²¹

This approach is designed with outcomes—conservative ones—in mind, rather than theoretical coherence or even a textual or historical basis. Professor Geoffrey Stone of the University of Chicago Law School found that the judges following an “originalist” approach dependably reached conservative outcomes. Looking at the twenty most important constitutional cases since 2000, Stone concluded that the conservative justices were on the conservative side in 98.5 percent of the cases. In other words, the outcome is predetermined.²² Steven Calabresi, Federalist Society founder and law professor, confesses as much with no shame, lauding the consequences of applying an originalist frame to contemporary cases.

The country would be better off with more federalism and more decentralization … with a president who had more power to manage the bureaucracy … if we did not abort a million babies a year as we have done since 1973 … if students could pray and read the Bible in public school and if the Ten Commandments could be posted in public places … if citizens could engage in core political speech by contributing whatever they wanted to contribute to candidates for public office … if we could grow wheat on our own farms without federal intrusion … if criminals never got out of jail because of the idiocy of the exclusionary rule … if our homes could not be seized by developers acting in cahoots with state and local government … [and] if state governments could not pass laws impairing the obligations of contracts.²³

This statement of what originalism could achieve is truly radical: it would undo the New Deal (wage and hour laws, anti–child labor provisions), environmental protections, the right to choose, and most federal regulations providing important limits on corporate malfeasance, not to mention radically reinterpret the First Amendment’s ban on the establishment of a preferred religion. It would return us to the eighteenth century.

Before the 1980s, originalism had been a sleepy theory discussed by conservative scholars, but Reagan’s attorney general Edwin Meese saw its utility and made it a political force for the Right. Meese commandeered the vast resources of the Justice Department to promote originalism, including publishing a manual of constitutional interpretation and speaking around the country to promote it. Professor Laurence Tribe, a well-known Harvard constitutional law scholar, describes how successful Meese was in “making it look like he and his disciples were carrying out the intentions of the great founders, where the liberals were making it up as they went along. It was a convenient dichotomy, very misleading, with a powerful public relations effect.”²⁴ In July 1985, Meese addressed the American Bar Association’s annual meeting, titling his speech “Jurisprudence of Original Intention.” Taking on the Supreme Court directly, he successfully brought the theory into the public debate. Meese criticized the court for enabling “a drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren Court.” Meese argued that only originalism would prevent this backsliding. Justice William Brennan fired back, describing the theory that we can read the minds of the founders for their intentions as “arrogance cloaked in humility.”²⁵

On a range of issues, these originalists assert that their view is supported by their unassailable understanding of the Constitution’s original meaning, and conservative scholars and activists have used the doctrine as a hammer to attack liberal positions and policy victories. A notable example is how they mobilized to challenge the constitutionality of the Affordable Care Act. With the groundwork laid by the Federalist Society and the promotion of originalism by Reagan’s Department of Justice, conservative legal activists created a receptive environment to raise a novel challenge to the Affordable Care Act: that it was not a constitutional exercise of Congress’s power under the Commerce Clause.

The Commerce Clause of the Constitution had been the basis for most of the major pieces of legislation adopted during and since the New Deal, a critical undergirding for progressive policy. The Federalist Society and its allies assiduously promoted the radical attack on congressional power, normalizing the idea through programming and writing in legal publications and also more popular magazines and newspapers. During the debate over the Affordable Care Act, conservative legal commentators David Rivkin and David McIntosh wrote a piece in the Wall Street Journal—a favorite placement for opinion pieces designed to bring extremist approaches to an audience that will find them persuasive—arguing that the individual mandate would be unconstitutional if adopted. Randy Barnett, a prominent Federalist Society “expert,” also pushed the idea that the Affordable Care Act’s mandate was unconstitutional in media and public appearances.²⁶ One favorite talking point was the alleged concern that the principle behind the individual mandate would allow the government to force people to buy any sort of product—including broccoli. Fox News spent many, many hours talking about broccoli, amazed at the supposed overreach of the law. Justice Scalia actually referred to this specious talking point in his opinion. “Everybody has to buy food sooner or later,” he said. “Therefore, you can make people buy broccoli.”²⁷

That bizarre reference to broccoli didn’t grow in Scalia’s mind organically—it was a plant. New York Times reporter James B. Stewart dug into how it grew, writing, “The vegetable trail leads backward through conservative media and pundits. Before reaching the Supreme Court, vegetables were cited by a federal judge in Florida with a libertarian streak; in an Internet video financed by libertarian and ultraconservative backers; at a Congressional hearing by a Republican senator; and in an op-ed column by David B. Rivkin Jr., a libertarian lawyer whose family emigrated from the former Soviet Union when he was 10.”²⁸ Yale constitutional law professor Akhil Amar confessed “grudging admiration…. All the more so because it’s such a bad argument. They have been politically brilliant. They needed a simplistic metaphor,and in broccoli they got it.”²⁹ Legal common sense says that there are certain items that government can indeed require people to buy; for example, you have to buy an airbag when you buy an automobile. On The O’Reilly Factor, I flummoxed Bill O’Reilly by asking about whether the Militia Acts of 1792, requiring militia members to buy muskets and shot, affected his argument that the government had never, ever required anyone to buy anything. He couldn’t answer.³⁰ But broccoli won the day; the Supreme Court found that the Commerce Clause did not actually provide a constitutional foundation for the individual mandate (although the taxing power did). The impact of this radical revision of the power of Congress is still unknown. We must admire what the Right achieved. With its legal network, supported by the Fox News echo chamber, feeding radical dogma to handpicked judges, conservatives undermined a key pillar of progressive policymaking.

THE FEEDBACK LOOP

In her 2015 book examining the rise of the Federalist Society, scholar Amanda Hollis-Brusky notes that theory isn’t everything: “To have a serious and lasting influence on the direction of constitutional law and jurisprudence—a constitutional revolution—you need to appoint the right cast of characters” and you need to police their work once appointed.³¹ The Federalist Society recognizes that judges are a critical audience for its work—its white papers and events are directions on how to apply the law and it critiques opinions it believes deviate from the orthodoxy. To be doubly sure the judges are hearing the right message, conservative organizations have provided judges with seminars and training programs at luxurious resorts—junkets of jurisprudence—where they learn why class actions should be limited and environmental regulations should be subjected to tough scrutiny. Republican appointees dominate these events, making what Senator Sheldon Whitehouse called a “sort of right-wing judicial jamboree and team-building exercise.” Wined and dined by groups that have cases in their courts, the judges learn their dinner mates’ preferred outcome and are given a specific understanding of the factual and legal context of the cases. Whitehouse quotes a newspaper editorial that rightly condemned these all-expenses-paid trips as “popular free vacations for judges, a cross between Maoist cultural reeducation camps and Club Med.”³² These judges are instructed toward “unabashed activism” and told that “the Reagan revolution will come to nothing” if the judges don’t uphold a “libertarian Constitution.”³³

Judges can also send direct messages in these informal settings about what cases they would like to see—and indirect messages in the opinions they write. In 2009, Chief Justice Roberts famously requested a challenge to the Voting Rights Act (VRA) in Northwest Austin Municipal Util. Dist. No. One v. Holder, signaling that in a subsequent case the court would find the VRA unconstitutional—and four years later, Shelby County v. Holder was the result. Similarly, Justice Samuel Alito made it clear in his writing in Knox v. Service Employees International Union (2012) that the precedent, Abood v. Detroit Board of Education (1977), which supported the right of public employees to organize and receive fair-share fees for collective bargaining costs from nonmembers, deeply offended him. He again critiqued Abood in Harris v. Quinn, two years later, calling it “questionable on several grounds.”³⁴ With the four other conservative justices, he conveyed that the court would like to overturn Abood in the future. Alito’s request was hardly subtle, and lawyers were ready with the case, Friedrichs v. California Teachers Association (2016). Friedrichs almost brought an end to this important regime for working people, but we were spared at the last minute by the death of Antonin Scalia, which meant the decision was split 4–4. In 2018, with Justice Neil Gorsuch replacing Scalia on the bench, a new case presenting the same issue came before the court. With this case, Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Right won, and it now plans to decimate public employee unions, a critical protector of working people in the last sector where unions have any power. Ruth Bader Ginsburg and Sonia Sotomayor can complain in their dissents about mistaken majority opinions, but they can’t signal to the Left that we can win on the next try because we can’t—not without a Supreme Court majority that recognizes the progressive values of the Constitution. First, we have to win the court. Nevertheless, these dissents do provide a road map for future majority opinions, and we need to be attentive to the specific directions they send.

The Right has also been adept at creating a self-perpetuating network, with judges promoted by the Federalist Society choosing law clerks and mentoring young lawyers who come out of its chapters. It is no secret that the judges who are moved forward by the Federalist Society or who are active in the group prefer law clerks who have been part of the organization. Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit—until he was forced to resign due to allegations of sexual harassment in December 2017—was quite forthright in saying that he looked for the Federalist Society on student resumes because it “tells me you’re of a particular philosophy, and I tend to give an edge to people I agree with philosophically.”³⁵ (He also said, famously, in a response to a comment that Barbie dolls give girls a distorted body image, that “the only thing wrong that I saw when I held Barbie is when I lift her skirt there is nothing underneath.” This might explain why he had to resign.³⁶)

Hollis-Brusky notes that “taken together, these efforts both inside and outside the legal profession have acted like, to borrow Federalist Society member Lillian BeVier’s language, ‘dripping water,’ slowly wearing away at the dominance of liberal legal thought and effectively changing the dialogue about our Constitution and constitutional culture.”³⁷ This feedback loop reinforces the rightward drift of the law as judges adopt positions that the Right pushed from the outside in and conservative scholars and litigators get hand signals from judges about what litigation would get a positive reception in the court.

The somewhat messy and uncoordinated legal Left hasn’t been nearly as effective. While it is true that the academy is more liberal than conservative, conservative scholars have been more tightly aligned with activists and have been more intentional about harnessing legal writing in service of political goals. Progressives have no such camps where judges could learn about why aggregating small claims in a class action allows people to recover damages and holds corporations accountable for wrongdoing or why employment discrimination claims are too frequently dismissed before discovery. And why no Left Club Med? While some of the Left are waking up to the fact that generating ideas isn’t enough if no one knows about them, most funders are still asleep when it comes to building an infrastructure to advance top candidates into the judiciary and ensure that they are educated on pending legal issues. There’s nothing wrong with exposing judges to ideas.

Here’s the takeaway: liberals need to embrace and promote our understanding of the Constitution. Instead of being cowed by originalism, with all its flaws and inconsistencies—and in the face of the cynical application by the Right that drops the theory when it doesn’t work in their favor—the Left needs to forthrightly advance the position that the document is progressive. It starts with “We the people” and was drafted to embed democracy in our nation as well as to limit the government’s power to override minority views. Thus, we have majority rule but protections for freedom of speech and due process. Fair-minded constitutionalists review the text and history to understand how to apply its democracy-advancing goals to current circumstances. That’s why we can find protections in the Fourth Amendment for cell phone data even though phones didn’t exist in the nineteenth century; and that’s why we find that waterboarding violates the Eighth Amendment’s ban on cruel and unusual punishment. Maybe it wasn’t cruel in the past when whipping was a widespread civil disciplinary measure and we were still arguing about whether nonwhite people were indeed “people,” but it sure is now. Originalists can’t get there without twisting themselves—and our Constitution—in knots. Originalism wasn’t born in a day; it had a long gestation period before it had an impact. But we can now see the damage. We need to take back the Constitution and restore its pride of place for progressive values.

In addition to advancing a better alternative to originalism, we can’t shy away from thought leadership and scholarship more tightly aligned with political goals. Young scholars on the left are often frightened that writing articles and advancing theories that help the Left—or worse, Democrats—will harm their chances at tenure. Some of that fear could be mitigated if the big donors who give to universities and law schools were to endow positions that focus on policy and constitutional jurisprudence with a liberal flavor. But we also need more focused think tanks and publications that can do some of this work, just as the Federalist Society and Heritage have done on the right.

The American Constitution Society has taken up this challenge, as have other organizations like Demos, the Constitutional Accountability Center, and the Brennan Center for Justice, but the field needs more funding and more buy-in from our political allies so the ideas can flow as efficiently from the scholars to the politicians as they do on the right.

These think tanks also need funding to provide judicial education so we too can have a process for sharing our best ideas directly with judges. We already work to embed these ideas in opinion pieces and law review articles, share them on social media, and promote them on Capitol Hill, in statehouses, and in the courtroom. But we can’t neglect the pipeline, so we need to build out our education program to supply these judges with the best and most diverse law clerks. Unlike conservative Federalist Society judges, liberal judges are unlikely to take direction from any advocacy organization—that resistance is in the Left’s DNA. But we can provide critical mentorship, guidance, and networking to law students and lawyers to clerk for and become judges so we can have more fair-minded constitutionalists on the bench.

POWER LASTS LONGER WHEN APPOINTMENTS ARE FOR LIFE

From the beginning, one of the main objectives of the right-wing legal establishment has been to put judges on the bench who will carry out its interests. Amanda Hollis-Brusky describes the approach as understanding that achieving constitutional changes is about more than just appointing judges and justices. It’s about “appointing enough of the right judges and Justices: individuals who have been shaped intellectually and have been professionally credentialed by a network that will, through its personal and professional ties, hold those judges and Justices accountable for being faithful to a particular point of view of the Constitution and of constitutional interpretation.”³⁸

Leonard Leo, executive vice president of the Federalist Society, got a call from Donald Trump in the spring of 2016, asking for advice on judicial nominees—specifically a list of vetted candidates. No campaign in history had put out such a list. In an interview with the New Yorker’s Jeffrey Toobin, Leo recalled that Trump said, “People don’t know who I am on these issues, and I want to give people a sense of that.” Leo told Trump, “That’s a great idea—you’re creating a brand.”³⁹ Leo did indeed provide a list that complied with the president’s campaign promise to fill the bench with activists committed to expanding gun rights and overturning Roe v. Wade; that’s not surprising considering Leo’s conservatism is driven as much by his Catholic faith as by free-market dogma. Joan Desmond of the National Catholic Register proudly wrote that “when Trump turned to Leo for help with his first nominee to the high court, he was soliciting the advice of a devout pro-life Catholic.”⁴⁰ To Toobin, Leo asserted that having two children with spina bifida made him more deeply anti-abortion than he had been previously, and that he brings that to his work on judicial nominees. Conservative legal commentator Edward Whelan said of Leo, “No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo.”⁴¹

In an interview with the Washington Post, Hollis-Brusky was asked how the Federalist Society could work so closely with Donald Trump, who seems not closely aligned with its values. Quite easily, she responded, reminding the reporter that “as the late-Justice Scalia … wrote in two of his most famous dissents, ‘this … is about power.’ Access to power is key to the Federalist Society’s long-term goal of capturing the courts and reorienting constitutional and legal culture to embrace conservative and libertarian ideas. Access to Trump means access to power and because judges and justices serve, on average, 26 years on the bench, the Federalist Society’s influence will long outlast this president.”⁴²

Donald Trump has delivered on judicial nominations, sticking to Leo’s list of almost exclusively white and startlingly young men.⁴³ Where Mitt Romney had “binders of women,” Trump apparently has a notebook of white male clones all dedicated to undoing the twentieth century. Neil Gorsuch, who now sits on the Supreme Court, was on Leo’s list and fit the bill to a tee: a known quantity and frequent Federalist Society participant, religious conservative, and scion of an extreme conservative, Anne Gorsuch, who had served in the Reagan administration.⁴⁴ Brett Kavanaugh, Trump’s second nominee to the Supreme Court, also from Leo’s list, is cut from the same cloth. Dubbed “polemicists in robes,” by Slate’s Dahlia Lithwick,⁴⁵ Trump’s judicial nominees have benefited from the well-honed right-wing focus on the courts, getting confirmed in high numbers. Trump’s allegiance to the Federalist Society’s list of nominees is keeping many Republican politicians and donors, as well the base of the party, especially evangelicals, in his corner longer than they might otherwise have stayed. Even in the face of White House firings and publicly aired disagreements between the president and his cabinet, Trump’s team has moved more nominations and confirmations in his first two years than Obama, and by a lot. “It’s just been a win on all fronts,” said Carrie Severino, policy director and chief counsel for the Judicial Crisis Network.⁴⁶

THE GIFT THAT KEEPS ON GIVING

Feeling burned by earlier Supreme Court justices who had shown insufficient adherence to the conservative dogma, the Right was ready when Sandra Day O’Connor retired in 2006. Swearing that her replacement would toe the line, a prominent group of lawyers organized a plan to ensure a safe choice. Dubbed the “four horsemen,” Leo, former attorney general Ed Meese, White House counsel in the first Bush administration C. Boyden Gray,and Jay Sekulow, from Pat Robertson’s American Center for Law and Justice, brought together a broad swath of conservatives to fight for the nominations of Chief Justice John Roberts and Justice Samuel Alito, not to mention a large number of lower-court judges named by George W. Bush. These judges espoused a firmly conservative—and pro-corporate—ideology.⁴⁷ The funders who supported these efforts, including lawyer Ann Corkery, real estate magnate Robin Arkley II, the Koch brothers, and the Mercer family, no doubt found the investment profitable as the current Supreme Court has provided a safe harbor for corporate interests and promoted a social agenda that’s far to the right, prompting Southern Baptist head Richard Land to call Bush’s justices “the gifts that keep on giving” for religious conservatives.⁴⁸ From high-profile cases like Citizens United to those that fly under the radar, such as Comcast v. Behrend,⁴⁹ which threw out a class action antitrust suit, the court has reliably ruled for companies over employees, consumers, and government regulators.⁵⁰

The four horsemen were bolstered by a political strategy to pressure senators to support the nominees. In late 2004, Justice Antonin Scalia joined Leonard Leo and several wealthy conservative donors to celebrate the founding of a new organization, the Judicial Confirmation Network (JCN), which could be described as the political arm of the Federalist Society.⁵¹ News reports credit Sekulow, who would later serve as President Trump’s lawyer, with the idea to create the JCN.⁵² Immediately jumping into the fight for Bush’s Supreme Court nominees, the JCN helped secure victories for the two new extremely conservative justices, Roberts and Alito.

Then, with the election of Barack Obama, the Judicial Confirmation Network became the Judicial Crisis Network.⁵³ Obama’s election was a windfall for the JCN as its funders doubled down in the interest of limiting the Democratic president’s impact on the courts. Obama’s first nominee to a federal appeals court, David Hamilton, got the first taste of the JCN in attack mode. Despite his quite moderate record, Hamilton was painted as a “hard-left political activist,” and somehow his nomination was cast as Obama’s way of thanking ACORN for services rendered. Hamilton had spent one summer in college in the 1970s canvassing for that organization, which was accused by the Right of having tipped the election illegally to Obama in 2008.⁵⁴

Citizens United, decided in 2010, provided rocket fuel for the JCN. Like other 501(c)(4)s, the JCN is not required by law to disclose its donors, but investigative journalists have tracked the organization’s money to the shady Wellspring Committee, another 501(c)(4) group, which even shares an address and overlapping officers with the JCN. The JCN’s coffers were swelled by a $17.9 million gift from Wellspring; it had only two other donors between 2015 and 2016 in the fight to keep Merrick Garland off the Supreme Court.⁵⁵ In 2016, Wellspring put $23.5 million in the JCN’s bank account.⁵⁶ Wellspring was originally created by the Koch brothers and run by Ann Corkery, who joined Scalia and Leo at the dinner when the JCN was born.⁵⁷ The backers, who also support the Federalist Society, have a sophisticated understanding of how both groups support the end goal of packing the courts with far-right jurists. The Federalist Society runs the inside game, meeting with the White House and Republican senators to choose nominees and establish their credentials, remaining superficially above the fray. The JCN works the outside game, focusing on vulnerable Democrats or wavering Republicans, attacking the former to affect their votes on nominees as well as their reelection chances and savaging the latter for any sign of deviance from the hard-right line. To maintain its tax status, the JCN must spend less than 50 percent of its revenue on electoral activities, but,as election law expert Rick Hasen notes, it “may funnel a lot of the rest of the money into Supreme Court–related ads.”⁵⁸

On February 13, 2016, Justice Antonin Scalia died. I know exactly where I was at the time and I remember thinking, “Now President Obama truly has a chance to shape the law. Now, perhaps Citizens United and Shelby County and countless other poorly reasoned—and harmful—decisions can be reconsidered.” Within hours of Scalia’s death being announced, right-wing commentators and Republican senators declared that Obama would not get to pick his replacement. Enunciating a freshly minted doctrine, and one that conflicts with the Constitution’s text and history, they said presidents could not fill Supreme Court vacancies in an election year. The fact that other presidents had done so on numerous occasions (including the appointment of Justice Anthony Kennedy in 1992) did not bother them. It is enough to just keep repeating the lie to make it true—until it is inconvenient, at which point it can be jettisoned (which is what happened when Kennedy’s retirement created a vacancy in 2018, also an election year).

Much ink has been spilled about President Obama’s decision to pick Judge Merrick Garland of the District of Columbia Court of Appeals to replace Scalia. A fine judge and former prosecutor, Garland was the definition of “moderate”—and white and in his sixties. In the Rose Garden ceremony announcing the nomination, Obama said, “Because of Justice Scalia’s outsized role on the court and in American law, and the fact that Americans are closely divided on a number of issues before the court, it is tempting to make this confirmation process simply an extension of our divided politics. But to go down that path would be wrong. It would be a betrayal of our best traditions and a betrayal of the vision of our founding documents.”⁵⁹ His remarks crystallize the difference between progressives and conservatives—for the latter, the nomination process is not an extension of politics; it is politics. Let’s remember that when Justice Thurgood Marshall left the Supreme Court, Republicans fought to have Clarence Thomas replace him. Democrats let them.

Curt Levey, of the Committee for Justice and FreedomWorks, threatened Obama with “Armageddon” from the Senate were he to nominate someone to the “left of Merrick Garland.”⁶⁰ But when Obama responded by nominating Garland himself, the Right went on to unleash “Armageddon” regardless, and all of a sudden the judge went from a moderate to a raving left-wing radical. Speaking to Mike DeBonis of the Washington Post, Carrie Severino of the Judicial Crisis Network said the Right was energized to fight Garland’s nomination because “at the end of the day, the American people do not want to see the Supreme Court shift dramatically to the left, and that is what would happen if Merrick Garland were confirmed.”⁶¹

Along with thwarting President Obama’s Supreme Court pick, Senate Majority Leader Mitch McConnell had worked assiduously to block appointments to the lower courts. Hoping for a victory in the presidential race in 2016, he conspired to hold open as many seats as possible. DeBonis compared how the 2007–8 Democratically controlled Senate had treated President George W. Bush’s nominees in his last year in office to what was happening to judicial nominees under Republicans in Obama’s last year: “The current Senate’s record is particularly dim on judicial confirmations. Obama has seen 17 lifetime judges confirmed in the past 16 months, compared to 45 for Bush in the same time frame, 40 for Clinton, and a whopping 82 for George H.W. Bush (including a Supreme Court justice, Clarence Thomas).”⁶² The Democrats had treated Bush’s nominees very differently. According to Jay Michaelson of the Daily Beast, in 2007–8, “the Democrat-led Senate confirmed 45; in 1991–92, when Democrats controlled the Senate and George H.W. Bush was president, it confirmed 82. In other words, the GOP Senate is confirming just 38 percent as many judges as the Democratic 2008 Senate, and 21 percent of the Democratic 1992 one.”⁶³

Trump is doing even better than his Republican predecessors, nominating and confirming judges at a record pace. Despite tapping nominees who receive a “not qualified” label from the American Bar Association, describe transgender children as part of “Satan’s plan,” call Justice Kennedy a “judicial prostitute” (to mention just a few), as of July 2018, no Republican senator had voted against or raised any concerns about any of Trump’s picks (except for Senators Ted Cruz and Ben Sasse objecting to a Hawaii nominee as not pro-gun enough and Senator John Neely Kennedy voting against a nominee to the DC Circuit due to conflicts of interest—the only merit-based oppositions from Republicans). The Far Right is practically salivating: “We are thrilled with the nominees,” gushed the JCN’s Carrie Severino.⁶⁴ Trump is primed to fill 20 percent of the federal bench with nominees like these, who will serve for life.

Scholars Lawrence Baum and Neal Devins provide data to show how relentless Republicans have been in putting ideology above all other considerations in judicial selection, as opposed to the Democrats’ contrasting weak-kneed approach. Merrick Garland, they argue, embodies this divergence and “reflects the practice of recent Democratic presidents to balance ideology with other goals by appointing moderate liberals. In sharp contrast, our research shows that Republican presidents over the past 25 years have put ideology first by appointing strong conservatives to the court.” By nominating Garland, Obama may have hoped Republicans would revert to their prior support for him and reject their commitment to oppose any Obama nominee. But even had the Democrats been in control of the Senate, Baum and Nevins argue, “Obama likely would have chosen a nominee who was roughly similar to Garland in ideological terms.”⁶⁵

Republicans were ready to spend a lot of money to keep Obama’s nominee off the court. The Judicial Crisis Network went on the offensive, waging preemptive strikes against possible nominees. Jane Kelly, a judge on the Court of Appeals for the Eighth Circuit, was among those targeted. Hailing from Iowa, Kelly might have been a difficult candidate for fellow Iowan, and Senate Judiciary chairman, Chuck Grassley to oppose, but she had worked for eighteen years as a public defender and that made good material for outsider-funded attack ads, especially regarding the fact that she had once defended an accused child molester. Kelly got knocked off Obama’s list.⁶⁶ When Garland was nominated, the JCN ran ads against him during the Sunday news shows in DC as well as in targeted states, showing a multiracial America, with smiling children and cozy home scenes. A woman’s voice intoned that “the American people should decide” on the next Supreme Court justice by voting in the next presidential election, rather than President Obama, although it was his constitutionally assigned role to select a replacement for Scalia. “This isn’t about Republicans or Democrats,” the woman advised. “It’s about your voice.”⁶⁷ This from a group that ran ads against the nomination of Sonia Sotomayor in 2009, and in 2010 tried to defeat Elena Kagan, even though President Obama had just been elected and these nominations reflected the “voice” of the voters.⁶⁸

After investing more than $7 million to fight Garland’s nomination, the JCN spent $10 million in ads attacking Democrats who might oppose Donald Trump’s eventual nominee.⁶⁹ In addition to the Supreme Court battles, the JCN also spent heavily on ads to support lower-court nominees and attack Democratic senators who might object to their extreme views. Because the JCN doesn’t disclose its donors, viewers have no idea that the force behind the organization is a tiny group of extremely right-wing billionaires and multimillionaires rather than average people concerned about the courts. Heritage Action supplemented the JCN’s attack ads by telling Republicans, starting in January 2016, that there would be consequences for deviating from the party line and that if they supported any Obama judicial nominees for the rest of his administration, Heritage would use it against them in their election.⁷⁰ The Right’s strategy featured advertising but also grassroots mobilization and polling, with a focus on defeating Senate Democrats in red states, with conservative organizations like the Tea Party Patriots and the Susan B. Anthony List helping to drive messaging in support of the Republican nominees.⁷¹ The Koch network, which has announced plans to spend up to $400 million in the 2018 elections, has made it clear that judicial nominees are a “huge priority” and that Democrats who stand in the way will pay a price.⁷² Well before Justice Kennedy’s retirement and Kavanaugh’s nomination, the Kochs were already spending to keep the next open seat for the Right.⁷³ They went all in for Kavanaugh, who could be the vote to overturn Roe.

Ron Klain, who served as a senior adviser to Presidents Clinton and Obama, criticizes the Left for neglecting the judiciary. In an opinion piece for the Washington Post, Klain noted that Trump “not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton—combined. For the Courts of Appeals—the final authority for 95 percent of federal cases—no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.” Klain also underscored that the relative youth of Trump’s appointments means they will serve for many more years than Obama’s older nominees.⁷⁴ Where the Right put millions into attacking Garland and advancing Gorsuch and Kavanaugh, the Left didn’t vigorously fight back. Some of us tried to respond to the attack ads and misleading rhetoric on the right, but support from the Democratic Party and major funders was measly. We brought a knife to a gunfight. They brought AR-15s.

Getting these lifetime appointments was deemed so vital that Senate Republicans upended prevailing Senate practices and constitutional norms. First, they refused to give Merrick Garland a hearing, the first time in history a Supreme Court nominee has been so denied. Then, after successfully keeping the seat open for a year for Donald Trump to fill, they immediately abolished the filibuster for nominations to the high court and moved Neil Gorsuch expeditiously onto the bench. Gorsuch has quickly shown himself to be as conservative as feared. His first opinion involved sending a death row prisoner to be executed by lethal injection. With Gorsuch on the Supreme Court, the Right already expected the court to deliver in cases involving discrimination against gays and lesbians, women’s reproductive rights, and more. And with another Trump justice, there is little doubt that the court will veer hard right. The new justices are expected, like Roberts, to come down on the right side when it counts for maintaining Republican power—making it easier to exclude valid voters, draw congressional districts that give a lock for the conservative candidate, destroy the labor movement, and undo any remaining campaign finance restrictions. Bush v. Gore should always remain in our minds when we think about how political the court can really be.

The filibuster is not the only rule that was jettisoned. In contrast to the Democrats, who even in the face of Republicans’ dug-in opposition continued to honor the “blue-slip courtesy,” a Senate Judiciary Committee practice of refraining from scheduling a hearing on a nominee until the nominee’s home-state senators have noted their agreement by sending a blue slip to the chairperson of the committee, in 2018, Republicans basically dumped this tradition. During his time as Democratic chairman of the committee, Senator Patrick Leahy would not entertain any discussion of a change to the practice and, predictably, the Republicans refused to turn in blue slips on a large number of nominees, sometimes even blocking those who had been suggested by their own nominating commission. Sarah Binder, a longtime observer of the Senate judicial confirmation process, writes that “Leahy’s policy undermined Obama’s ability to confirm judges onto the bench in states represented by at least one Republican” and accounts in part for Obama’s low confirmation rates.⁷⁵

By contrast, in late November 2017, Republican senator Chuck Grassley of Iowa, the new chairman of the committee, announced he would proceed to a hearing for a judicial nominee over the objections of a Democratic home-state senator—without the blue slip, in other words. This decision was no surprise. In an article for the New Republic written prior to the change, David Dayen noted that “if Republicans change the rule, it would be all too typical. When Republicans hold the Senate and want a president to get judges through, they relax blue-slip rules. When the president is a Democrat, they tighten them. Democrats have adhered to blue-slip traditions regardless of who sits in the Oval Office. It speaks to the intensity of the GOP’s pursuit of judicial confirmations. Republicans simply want their judges more, and will not let Senate customs get in the way.”⁷⁶

Unfortunately, some senior Democratic senators have a strange nostalgia for Senate rules, seemingly forgetting why they were elected: not to fetishize a tool for committee operations but to advance a progressive agenda. When the base on the left got energized because of Republican obstruction of certain Obama nominees, the Democrats under Senate Majority Leader Harry Reid did ditch the filibuster rule for lower-court nominees, enabling President Obama to confirm some key judges. (Unfortunately, the blue-slip rule remained in effect.) But the filibuster effort demonstrated that when the base and major funders work together, we can force passive Democrats to make getting judges confirmed a priority.

Control of the judiciary is so important to the Right that at a private gathering hosted by the Koch brothers in early 2017, Koch officials handed out a document explaining the blue slip and why it needed to be abolished (at least while there was a Republican president). Speaking to a USA Today reporter, Koch executive Mark Holden stated, “Having a home-state senator have the ability to slow down the process, in our opinion, doesn’t make sense under the Constitution.” At the Koch retreat, high-level donors and influential conservatives were asked to push Republican leaders to abandon the rule. The document asked participants to “tell them not to allow needless delay tactics and obstruction of the process.”⁷⁷ And in an article in Time, Holden chastised Democrats for holding up nominees. Under the byline Mark Holden, chairman of Freedom Partners Chamber of Commerce, he disguised his day job as senior vice president, general counsel, and corporate secretary of Koch Industries, Inc. (He also serves on the board of directors of Americans for Prosperity, another Koch group.) In the article, Holden fulminated against the blue slip; while admitting that “Republicans did it to President Obama,” he argued that “it’s this sort of tit-for-tat that needs to be dispensed with.”⁷⁸ Of course. Until there’s another Democratic president, that is.

ENDING PARTISAN ASYMMETRY

On the left, we periodically pay attention when the Supreme Court has an opening. When Scalia died, leaving a hole on the court that should have been Obama’s to fill, Obama decided that his best play was to assume that the Republicans would cooperate if he nominated a moderate who had won Republican support in the past. Despite all the evidence from his seven years as president—efforts to win Republicans over on the Affordable Care Act and the stimulus bill, naming Republicans to his cabinet, all of which got the back of the hand from the GOP—Obama fell into the trap of thinking he could get Republican support for a centrist move. He found no support from the GOP and also failed to ignite the Democratic base. A sixty-three-year-old white man, moderate to a fault, Garland did not ignite the grassroots.

While Republicans fight for radical nominees, Democrats select moderate lawyers—but they tend not to fight hard even for them. I experienced this disparity myself, working in Democratic politics. During the Clinton administration, I was on the staff of Democratic Senate leader Tom Daschle, with a portfolio that included judicial nominations. Daschle, who recognized the importance of getting judges through the process, helped shepherd many Clinton nominees onto the bench—as the Democratic leader should do. This role was not controversial in South Dakota, until the right-wing donors decided to make it so. When Daschle ran for reelection in 2004, he was targeted by the Right for his role in supporting Clinton judges and opposing Bush judges, who fit the pattern of middle-of-the-road nominees versus hard-right activists. JCN donors Robin Arkley II and Ann Corkery set up a PAC to take down Daschle through an ad campaign that spotlighted his role in judicial nominations.⁷⁹ It was called “You’re Fired Inc.”⁸⁰ He lost.

None of this bubbled up from the electorate, but the fact that the topic had been used as a bludgeon against the Democratic leader both encouraged Republicans to fight on judges and made Democrats leery of fighting back. Democratic operatives now counsel senators to stay away from the issue, suggesting that their voters don’t care and that the other side will punish them, so why engage? In fact, Senator Harry Reid ran for Democratic leader after Daschle lost his reelection by promising he wouldn’t make his fellow senators fight on judges the way Daschle had. And so Democrats ceded more ground to the Right, with a real impact on our courts. With a record number of vacancies to fill, President Trump is benefiting from Democrats’ absence from the fray. Journalist David Dayen says, “This imbalance means that the judicial branch inexorably drifts right, toward a constrained view of the Constitution and a limited federal government. It creates a judiciary that favors big business and puts big legislative advances at risk. And its impact stretches over decades, well beyond Trump’s presidency. After eight years in the wilderness, Republicans in Congress and their backers in think tanks and super PACs don’t want to stop that forward momentum.”⁸¹

So what can we do to ensure that our courts aren’t simply an extension of Koch Industries? Just as the JCN and the Federalist Society have long understood that judicial selection is a political process, so must we on the left. Already, some of us have begun to build that counterforce. First, we need to get Democratic senators to care by getting their donors to care, shaming senators in the press when they do the wrong thing and rewarding them when they do the right thing. Organizing those with close relationships with senators (in other words, donors) to demand senators engage has already made some difference. Even outside of a campaign fund-raiser, funders have sway—their opinions matter. Our task is to build this group, educating those progressive funders already involved—from those fighting for LGBTQ rights to the environment and on across the progressive spectrum—to recognize how central legal decisions are to their interests so they too can use their influence to impress on senators the importance of the courts. This project is ongoing.

Second, we need to be ready for when Democrats again have control of the Senate. Activists and donors must fight against the Democratic senators’ tendency to be “holier than thou.” Rather than reinstating antiquated practices like the blue slip or deferring to the minority by once again instituting the filibuster, Democratic senators need to aggressively fight for good judges and against right-wing zealots, without deferring to practices that will undercut that effort. The current Republican leadership has made several moves that should be emulated: abolishing the blue slip; prioritizing court of appeals nominees, since they have the most power to influence the direction of the law; picking young lawyers as nominees (as young as possible); and (if there’s a Democratic president) working closely with the White House to swiftly nominate candidates. Rather than worrying that each nominee has an unblemished record, Democrats need to be willing—as Trump has been—to see a few go down. As one expert said to me privately, “Trump has sent one hundred soldiers over the hill; he thinks if ninety make it back, he’s going to win.” Contrast that with the typical liberal flyspecking, which results in delays and vacancies—and we still don’t get our ninety to come back over the hill.

We must also make sure senators and candidates for the Senate feel both pressure and pain, as well as love, for doing the right thing on judges. That has to include direct campaign support for champions of good judicial candidates. Already, some progressive lawyers in DC have begun to bundle small checks from many donors into one donation to reward the few senators who grasp the need to fight. But this effort needs far more funding to be effective. When senators and presidential candidates begin to see the federal judiciary as deeply important to donors, they will make it a priority. And, though some find this repugnant, we need a robust analog to the Judicial Crisis Network that will channel high-dollar donations to run independent expenditure campaigns for nominees, with targeted paid advertising to thank and spank friends and foes. That’s happening and needs to be supported. Demand Justice, an organization formed by veterans of Capitol Hill and Obama’s White House and presidential campaigns, hopes to motivate progressive voters on issues related to the federal judiciary. Demand Justice’s executive director, Brian Fallon, a former spokesperson for Hillary Clinton’s campaign, researched the backgrounds of those individuals on Trump’s short list. Brett Kavanaugh and Amy Coney Barrett were particularly targeted for their positions on dismantling the Affordable Care Act and overturning Roe v. Wade, as well as because they would be a rubber stamp for Trump on issues relating to the Russia investigation. In the campaign against Kavanaugh, Demand Justice went after conservative Democrats as well as liberals who should know better but have supported Trump nominees. A sign that it works: Senator Bob Casey joined a growing list of Democrats who will not vote for any nominee on Trump’s list.⁸²

Just as conservatives understand the value of a deep bench, we also need to cultivate and support young progressives who want to become judges. The American Constitution Society has begun this painstaking work of running a job bank and clerkship training programs, and assisting potential candidates with applying, but we are still catching up. This kind of leadership development needs funding. While some on the left are starting to grasp that policy needs personnel, it hasn’t taken root like on the right.

Kristine Lucius, who served for many years as a senior staff person on the Senate Judiciary Committee, emphasizes that this investment cannot be for just one election cycle. “All of our civil rights and freedoms depend on judges to uphold these hard-won protections,” Lucius told me. “We the people must demand that senators not rubber-stamp Trump’s extreme judicial nominees and his plans to make our courts unrecognizable.” And not just now but in perpetuity. Otherwise we will get more judges like John K. Bush of the Sixth Circuit, a “birther” and homophobe whose first published opinion ripped a hole in the Fourth Amendment’s protection against unreasonable searches and seizures.⁸³

And progressives must do a much better job of informing the public about the rightward turn of the federal courts. Despite decisions like Bush v. Gore and Citizens United, Democratic voters still believe the Supreme Court to be a moderate institution. While Republicans believe the court to be too liberal, even with its GOP-appointed majority, progressives think it is centrist. Writer Sean McElwee argues that this “partisan asymmetry” explains why the Right engages its base so much more successfully in the fight over the courts. “Republican voters,” McElwee argues, “believe the court is working against them and are willing to fight against it, while Democrats mostly see it as a neutral arbiter of law.”⁸⁴ In addition to informing voters that the Republicans have blocked women, minorities, and LGBTQ individuals from serving on the bench, progressive organizations need to make court transparency an agenda item: the Supreme Court should be pushed to televise proceedings, or at least release same-day audio, and justices should be subject to the same type of ethics rules—such as recusal when they have a financial interest in a case—that other judges are subject to. Sunshine is called the best disinfectant; even if some greater transparency doesn’t fix the right-wing drift of the court, it might help show the Left that this is no moderate institution.⁸⁵

STATE COURTS FOR SALE

While federal courts may dominate media coverage, state courts have a more direct impact on people’s lives. State courts may seem sleepy, but fully 95 percent of cases go through the local courts—that’s over 100 million cases in front of almost thirty thousand state court judges.⁸⁶ They rule on issues from contract disputes and custody battles to the rights of gays and lesbians and voting rights challenges, as well as on consumer product liability, malpractice, and, notably, criminal justice, including the death penalty. But progressive activists who can barely register a yawn over the U.S. Supreme Court battles have not engaged in the states much at all. Only labor unions and trial lawyers have paid attention, and these players, competing against special interests spending vast sums on campaign contributions and advertising, are easily outgunned. Eric Lesh, the former Fair Courts Project director of Lambda Legal, says, “Progressives have taken their eyes off the ball when it comes to judges. Many of us have taken comfort at the fact that, thus far, the courts have stopped some of the worst actions of the Trump administration and of overreaching state legislators.” He warns, however, that “we shouldn’t expect that to continue. For years, far-right groups and powerful special interests have been working to game the system by stacking state courts with judges who will rule in accordance with their agenda.”⁸⁷

Soon after being launched to help conservatives pack the federal courts, the JCN turned to the state judiciary, pouring huge amounts of money into formerly dull races. The Sacramento Bee found the JCN’s interest unsurprising, noting it was “part of an effort by the GOP and business groups to spend big to create a friendlier legal environment, one that often is couched as ‘judicial restraint,’ is sympathetic to small government and limits tort liability for business.”⁸⁸ The JCN has partnered with other dark-money organizations, including Club for Growth affiliates and other arms of the Koch empire, to provide deep pockets for state races in key parts of the country like Wisconsin and Michigan, where courts’ rulings on redistricting and union dues have helped tip the states into the GOP column. In 2012, the JCN made an investment of over $2 million in Michigan state court elections alone.⁸⁹ And the JCN pumped money into the Republican State Leadership Committee, the campaign arm that focuses on state legislative elections and redistricting, to bring them into state court elections in 2014.⁹⁰

“The first time I ever met Karl Rove was in Alabama, in a meeting of funders and operatives working on state Supreme Court races,” said Chris Jankowski, a Republican consultant and strategist. “Karl had spotted this in the nineties and would go into each state and set up the machine that was needed. To get the judges, you had to recruit good lawyers. It’s a really soft-touch process. You’re not recruiting guys who want to run for Congress. You’ve got to do it subtly, you’ve got to move the money in the right way, you’ve got to fight the trial lawyers.”⁹¹ It is no coincidence that the evil geniuses behind the great ratfuck of 2010 also saw the importance of state court races early on. The two are intertwined—control redistricting, and you control the electoral prospects of your party. Control the judges, and you control whether the redistricting—or voter suppression laws—withstand judicial scrutiny. Not coincidentally, Jankowski has gone from the redistricting project he ran with the Republican State Leadership Committee, REDMAP, to work as a consultant for the JCN.⁹²

Wisconsin provides a sad example of what happens when a state’s judiciary becomes the target of the Far Right. Once a state with a respected judiciary, Wisconsin now has a fiercely partisan conservative majority. Since 2007, dark-money groups, including the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce, have plowed nearly $8 million into races to capture the state supreme court for conservatives. Lincoln Caplan of the New Yorker called these groups “central players in turning Wisconsin into solid evidence of how judicial elections corrode public confidence in state courts.”⁹³ Behind the allegedly homegrown Wisconsin Club for Growth was the JCN, which gave the group over $500,000 in 2012–13, to be plowed into the campaign of Justice Patience Roggensack, who was seeking a second tenyear term on the Wisconsin Supreme Court.

Progressive reform groups attacked Wisconsin governor Scott Walker, who faced a recall in 2012, for illegally coordinating with these outside groups. The story of how the case against Walker developed, and then was thwarted, illustrates the impact of a judiciary captured by conservative interests. When the case against Walker came before the Wisconsin Supreme Court, prosecutors requested that several of the justices recuse themselves since their campaigns had been recipients of the same outside groups’ financial backing. The justices declined and the court not only dismissed the charges, it blessed secret coordination between candidates and dark-money funders. The Madison-based Center for Media and Democracy condemned the ruling, saying, “No other court in the land has taken such a step, and the move took Wisconsin from being one of the most transparent systems in the nation to one of the worst.” Or at least, the least transparent. The prosecutors appealed the decision but the United States Supreme Court declined to review it.⁹⁴ Prosecutor Francis Schmitz, who had served as a Republican appointee, lamented that “as a result of the [Wisconsin Supreme Court] decision and subsequent action by the legislature, a wealthy corporation or individual can make an anonymous and disguised political contribution through certain groups. The public will never know if those donations influenced the decisions of elected officials,” including judges.⁹⁵ Why these anti-coordination rules exist, explained Judge Lynn Adelman in a law review article, is because “if a candidate can coordinate with an independent group that, under the United States Supreme Court’s decision in Citizens United v. FEC, can accept secret, unlimited contributions, then contribution and disclosure rules that apply to political candidates are meaningless.”⁹⁶ So with the sotto voce blessing of the United States Supreme Court, the JCN, the Club for Growth, and other right-wing groups have free rein to buy judges and legislators in Wisconsin, and no one is the wiser about the funders because they can remain secret. “Equal justice under law” needs a footnote: “If you are a donor.”

Where was the Left while this was going on? Apart from the challenges to the electioneering of Walker and the conservative justices, the Left was largely quiescent. While the push for legal consequences for Walker’s lawbreaking was a useful tactic, one that encumbered the GOP, it was not embedded in a broad strategy to advance progressive judges and a truly fair court system. What happened in Wisconsin has been mirrored in states across the country, and well-financed efforts have moved many courts far to the right, with the expected outcome—conservative victories in lawsuits and a growing cynicism about judicial impartiality. In one of the 2016 races, the JCN and the RSLC crowed after their win in electing a new chief justice in Arkansas who promised voters he would rely on “prayer, not politics” to make his decisions.⁹⁷ On the left, we have been splintered, with a few groups (labor, trial lawyers) putting some money into state supreme court races but with most progressives horrified by the very idea of electing judges and therefore staying out completely. This asymmetry of funding and interest have ceded a tremendous advantage and a major area for policymaking to the Right, with dire consequences.

It’s not a coincidence that the Right has been pouring money into these races. Seventy percent of independent expenditures on judicial elections come from conservative groups, and it’s been a good investment for them—the candidates with the most financial backing tend to win. Indeed, 90 percent of those candidates get elected.⁹⁸ These judges’ votes can be counted on to harm consumers, reduce women’s access to abortion, erect hurdles for gays and lesbians trying to marry, disfavor criminal defendants, and uphold barriers to the ballot box. Money talks, even to judges. In several studies, the American Constitution Society has demonstrated how campaign donations from business entities lead to business-friendly decisions, how attack ads insinuating candidates are soft on crime cause judges to rule against defendants, and how Republican-aligned judges are much more likely to vote their partisan interests in election cases. One study, Justice at Risk, examined the impact of Citizens United, finding that the Supreme Court has truly unleashed a flood of money into the state court systems, severely undermining the fair administration of the law. The report documented “a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.”⁹⁹

Another report, Skewed Justice, shows that attack ads run by dark-money groups to favor corporate candidates have a decidedly negative impact in the criminal justice arena. The study found, “The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.”¹⁰⁰ A third study, Partisan Justice, found that in election cases, there is some partisanship on both sides, but “Republican judges systematically favor their own party in election cases by a statistically significantly greater margin, controlling for other things, than do Democratic judges.”¹⁰¹ In other words, Republican judges chose party interests over fair outcomes.

All of these reports demonstrate that the Left is losing in an important arena. Corporate contributions skew outcomes and attack ads make justices fearful of ruling in favor of criminal defendants. Eric Lesh, formerly at Lambda Legal, urges the Left to be more proactive in this key arena: “Progressives must mount a well-coordinated response to this extreme takeover of our courts in order to prevent extensive damage to our democracy and the further erosion of our constitutional rights. We are in danger of losing the courts for a generation.”

Just as with federal courts, we need both a short-and a longterm plan. First, we need to contest elections, putting up good progressive candidates against corporate stooges and right-wing zealots. The Left has rediscovered the states, remembering how important they are not only as an incubator for policy development but also as a pipeline for diverse talent. So far, however, that has meant only more funding for state legislative candidates and attorneys general, both important, but not sufficient. With state court races remaining relatively inexpensive, progressive funders could make a real impact. We need a national hub, similar to the Democratic Legislative Campaign Committee, which raises money for state candidates, to identify the most promising races, such as those where having more progressives on the state courts would affect critical policy battles including redistricting and voting rights disputes. With an investment of $30 million, similar to what Karl Rove raised for redistricting in 2010, leading funders could dramatically influence the direction of our state courts and the outcomes of all of the battles that will play out in those arenas. Unlike the Right, where financial rewards for corporations and the wealthy align with their donation strategy, the big donors on the left don’t see a personal gain from a progressive court system. But what has brought them to progressive politics in the first place is very much at issue in these judicial elections—the challenge and opportunity is to harness this ideological commitment (to choice or racial justice or fair elections) to the court battles where abortion rights or police reforms or voting rights stand or fall depending on who sits on the bench.

In the long term, financial asymmetries between Right and Left militate for building mechanisms to shield courts from moneyed interests. Moreover, these types of reforms are consistent with progressive values of transparency, fair rules, and an independent court system, and they build trust in government, which furthers our long-term mission. Labor unions, Democratic activists, and other groups on the left with power at the state level must put building an impartial court system on their legislative agendas, even as they battle to elect progressive judges. These reforms range from getting rid of elections for judges altogether and instituting a nonpartisan merit selection process, or passing a public financing law, as well as developing mechanisms to ensure that the state courts, which are overwhelmingly white and male, become more diverse. In addition, the judges themselves can promulgate robust recusal rules (which some progressive judges have advanced). Parties appearing in court shouldn’t worry that the other side’s lawyer spent the previous evening at a fund-raiser for the judge.

But in the short term, we must take back the state court benches. As Lesh recognizes, “The powerful, organized threat to fair and impartial state courts requires a dedicated, aggressive and well-coordinated response to prevent extensive damage to our democracy and the further erosion of our constitutional right to due process.”¹⁰² First, win elections, then fix the courts.