A Brief History of the Right-Wing Takeover of the US Judiciary
Featured image: Artwork by Rommy Torrico
by Lisa Graves, Alex Aronson, and Ruby-Beth Buitekant
Originally published December 21, 2023 in Convergence Magazine
In previous Dispatches, we looked at the playbook being used by authoritarians around the world, and how lawyers can best help organizers block autocratic tactics and build deep democracy. In this Dispatch, we’re going to take a closer look at the strategy the US Right has deployed in its decades-long pursuit of judicial power.
Organizations like the Heritage Foundation and ALEC have successfully influenced courts, legislatures, and public policy. They’ve engineered the appointment of significant numbers of ideologically aligned federal judges at all levels. The success of their strategy has manifested in the recent rash of anti-democratic decisions by the US Supreme Court in overturning the longstanding Roe v. Wade and Chevron decisions, eliminating affirmative action, and supporting broad presidential immunity, among many others. Cases that never should have been taken seriously have reached the highest court, like the challenge to abortion medication. We are seeing the political nature of law and the judiciary in stark relief.
Movement Law Lab recently hosted a webinar entitled “How Did We Get Here? The History of the Conservative Legal Movement” to help us understand the roots of our present rotten and captured judiciary, influenced by maneuvering and dark money; it was part of MLL’s series Unprecedented: How Lawyers Can Build Power to Defeat Authoritarianism. (For a primer on how judges become judges, here’s a quick explainer.)
This Dispatch is a modified transcript of the conversation Movement Law Lab’s Ruby-Beth Buitekant had with Lisa Graves of True North Research, who has deep experience in the US Senate and Department of Justice, and Alex Aronson of Court Accountability, who is the former chief counsel to US Senator Sheldon Whitehouse (D-RI).
Ruby-Beth Buitekant: Where did the organizing that led to the conservative capture of the courts start?
Alex Aronson: In many respects, the modern reactionary conservative movement began as a direct response to the Brown v. Board of Education decision-–and in an outgrowth of the Massive Resistance. Political scientist Calvin TerBeek went into the archives of the National Review (the conservative propaganda outlet run by William F. Buckley) and he found the roots of the arguments that became originalism. You cannot think about how we’ve come to this moment in terms of right-wing control of the courts without understanding Brown v. Board of Education and the massive resistance to racial integration in this country.
In the 1950s and ‘60s, the Civil Rights Movement took hold and liberal litigators like Ralph Nader at Public Citizen or the ACLU were making tremendous headway in terms of achieving safeguards and protections for consumers and people to be protected from pollution. This in addition to, of course, the amazing racial progress of that era with the passage of signature legislation like the Voting Rights Act and the Civil Rights Act.
All of that was met with more resistance and backlash from the reactionary Right. But it was really in the early ‘70s, after the advancement of consumer protection, that the business community took note of all of the progress that was being made in the courts. Then the US Chamber of Commerce quietly commissioned a memo from a corporate lawyer named Lewis Powell. He titled it “The Attack on American Free Enterprise,” and it was a call to arms for the American business community to engage more directly than it ever had before in American politics. A really important part of that memo detailed a plan to take seriously the judicial power to effectively build an army of corporate-backed litigators who would take to the courts to advance their agenda, just as they had observed the ACLU and Ralph Nader do.
Powell’s Memo reflects the understanding that the ideas of the corporate interests behind the US Chamber of Commerce were not popular ideas. These were not ideas that would hold the day if they were to try to pursue them through legislation. In fact, they had just been wiped out with these massive bipartisan advancements of civil rights and consumer protections. But Powell, recognizing that their ideas were deeply unpopular and would never be achieved through democracy, really set the business community on this tack of anti-democratic entrenchment of these deeply unpopular minority views.
Powell’s Memo reflects the understanding that the ideas of the corporate interests behind the US Chamber of Commerce were not popular ideas. These were not ideas that would hold the day if they were to try to pursue them through legislation.
Court Accountability Executive Director Alex Aronson
Powell did not disclose the memo that he wrote to the Chamber of Commerce when he was nominated to the US Supreme Court; he was confirmed thereafter, becoming a pretty reliable vote for the business community on the Court.
You won’t be surprised to hear the Right really invested in this plan. And we started to see the formation of groups like the Pacific Legal Foundation as one of the early sort of “public interest” legal groups to advance these corporate interests in court under the guise of public interest litigation. That effort gained strides, but they were ultimately still losing–they continued to not have power within the courts. That started to change when Ronald Reagan took the power of the presidency and there was a real emergence of far-right social activism to try to make sure that the Reagan administration would not be too establishment–would not be “Republicans in name only.”
We saw the formation of new, secretive groups like the Council for National Policy, which formed in 1981. It was sort of an alliance of fossil fuel interests and evangelical Christian interests down in Texas—and they really invested in building a social movement around judicial power and made overturning Roe v Wade a massive political priority. It was a genius sort of move by these anti-regulatory fossil fuel interests down in the South that wanted to push back against the EPA but didn’t have the popular power to hold seats and get their folks elected. But in this issue of abortion and the crusade, they were able to foment support among the evangelical Christian community and build significant power.
Around that same time, they built the Federalist Society out of a Yale Law School student group, and tried to establish originalism as a political idea. A lot of these early Federalist Society lawyers took positions of important power at the Justice Department under Edwin Meese, who was part of the vanguard of this movement in the ‘80s alongside people like Sam Alito, Antonin Scalia, and John Roberts, who early in his career at the Reagan Justice Department was writing memos that articulated the theory that he would ultimately use in Shelby County to gut the Voting Rights Act and enact this agenda. When Leonard Leo came out of Cornell Law in the 2000s, he got guidance from some very influential judicial advisors in his life to not go into litigation, not do a traditional legal career, but to go to the Federalist Society and to become a real organizer.
Behind the facade of the debating club that they had, they created a complex architecture funded by billions of dollars, over $600 million of which have already been spent on building power and influence within the courts.
Ruby-Beth Buitekant: Lisa, can you talk a little bit more about the apparatus and how the Federalist Society has organized itself? What did they do during that period of time?
Lisa Graves: As Alex mentioned, this Federalist Society came up in the early 1980s as a pipeline for power – that was their objective. By 1987 the Society was giving interviews to The New York Times saying that within a decade they would have their people in key positions of power, and that turned out to be true.
By the time I became the chief counsel for nominations for the Senate Judiciary Committee, in George W. Bush’s first term in office, the Federalist Society was so entrenched that in essence, George W. Bush outsourced the choosing of judges to them. The American Bar Association was kicked out of the process of evaluating potential nominees before they were nominated and the Federalist Society leadership was identifying who would become the appellate nominees for George W. Bush. We have John Roberts and Samuel Alito on the bench because of Leonard Leo. He personally orchestrated the campaign to block another person who George W. Bush wanted to put on the Supreme Court because Alito was a true believer, a true vote that he could count on.
And so what you saw was George W. Bush putting numerous people on the bench. Not as fair judges, but as players in this political game they were playing as part of this agenda to try to capture our courts and by that, capture the law.
Ruby-Beth Buitekant: Alex, you were working for the Senate Judiciary Committee at the time that it was considering Trump’s judicial nominees. Can you talk more about what you saw at that time and how it has impacted what the courts look like today?
Alex Aronson: Trump didn’t care about judicial appointments, didn’t think about them one way or the other, but had an opportunity to bring in an important electoral block—the establishment Republicans, the folks that had spent decades caring about judicial power, about the courts, about the goal of overturning Roe v. Wade—and Trump made this bargain with Leo, effectively agreeing to give him unilateral control over judicial selection. And Leo provided a list that was populated with people who had been vetted for ideological loyalty to the Federalist Society.
Starting in 2017, I was watching from my perch at the Senate Judiciary Committee as the judges and the nominees we were considering just seemed different in kind from other judges. This isn’t to say that there haven’t been activists or extreme judges in the past—but we were noticing that more and more of the nominees had attachments to organizations in Leonard Leo’s dark money orbit. They weren’t just former prosecutors and Big Law lawyers anymore. These were movement zealots who were being chosen and put in particular positions where they knew that these issues had been, where they had been vetted and tested for what would be useful. We’re now seeing this play out particularly in the 5th Circuit Court of Appeals and the Northern District of Texas and other districts in Texas right now with some of the forum shopping opportunities (as with the mifepristone—abortion pill—case) that some of these litigants have.
These pre-screened embedded judges are advancing the substantive policy priorities of these interests—ending abortion access, making life worse for LGBTQ communities, getting rid of climate regulations so that fossil fuel interests can pollute more, and getting rid of gun safety regulations so that the gun industry can sell more guns.
While they advance those very unpopular priorities, they’re also ratcheting back the tools of democratic push-back and accountability and closing the gates for us to be able to see the will of the people reflected in our governing structures through voter suppression and gerrymandering and dark money. These authoritarians have taken control of our country by flooding our politics with dark money, which has had not only their desired effect of securing permanent control of the Republican Party, which they used to break the levers of government in Congress and in the courts, but also to trap the Democrats by requiring them to seek corporate cash to stay in the game. And so, as a result of all of these maneuvers, people just have less and less ability to see our voices be heard and reflected in government. We’re in a moment now where lawyers have a really important role to play in pushing us out of this place.
Ruby-Beth Buitekant: We have been talking about Project 2025 for months and it is beginning to get more public attention. What has been missing from that conversation?
Lisa Graves: Alex mentioned that the Heritage Foundation was created in response to the Powell Memo. It was fueled initially with cash from a pre-billionaire from the Coors family beer fortune. Like so much of this right-wing movement, it’s fueled by a handful of super right-wing billionaires. Their agenda was extreme—and when Reagan became president in 1981 they put forward one of these plans for Reagan to adopt. It was substantially adopted—though not entirely.
The Heritage Foundation was created in response to the Powell Memo….Their agenda was extreme—and when Reagan became president in 1981 they put forward one of these plans for Reagan to adopt. It was substantially adopted.
True North Research Executive Director Lisa Graves
But that agenda, as extreme as it was at the time, was not as extreme as the one that I saw come in the door when I was deputy assistant to the attorney general at the Justice Department at the end of the Clinton administration. These Bush political appointees came in, like Ted Cruz, and they set about to incorporate the 2001 version of the Heritage Plan. That version of it, again, was extreme, but not nearly as extreme as the one we’re seeing now.
This Project 2025 plan is extraordinary in a number of ways. First of all, it is not just the project of the Heritage Foundation. It is a project of more than 100 right-wing groups, many of which have ties to Leonard Leo, a majority of which have ties to Charles Koch and his fortune, and many of which are authored or aided by former Trump administration officials – some of the most extreme individuals who in my view should never be entrusted with any lever of power whatsoever. It represents a truly extreme agenda on economic policy, on social policy and more. The Heritage Foundation is led right now by a guy named Kevin Roberts who has literally said “Wield power when you have it.” They have an intense desire to move this forward. And just for context, after the Heritage Foundation’s, 2017 version was given to Donald Trump, the Foundation said that nearly two-thirds of their agenda was implemented by the second year of Trump’s term presidency.
Ruby-Beth Buitekant: How serious is the threat that Project 2025 poses?
Alex Aronson: I want to put my finger on some of the dynamics that Lisa’s describing here with a kind of different area of focus. First and foremost, the reality of this threat and how mature it is.
I don’t think this movement was ready for Donald Trump to win the presidency last time, with the exception of the judicial selection apparatus, which was already decades into maturity. Now they’ve had eight years to put plans in place and to get personnel in place and get themselves in order. So that’s one thing that has us very alarmed about this. Another thing that shows the extent to which this is an extension of the court capture program is how you can see the overlay of the agenda and the personnel. Lisa’s overview was really helpful and focused, primarily on the Christian nationalist motivation and agenda.
Another major theme of this plan is the massive rollback of environmental protections on behalf of the fossil fuel industry and other industries. And so in this confluence, you can see the same threads that built the right- wing legal movement that captured the courts. You can see the sort of reactionary pushback to Brown v. Board of Education. Anti-DEI (diversity, equity and inclusion) is another huge theme of this movement. You can see the anti-abortion agenda. And you can also see this huge anti-regulatory libertarian agenda. As they come to power together, these interests aren’t totally monolithic and consistent with each other.
You can see that in the Supreme Court with the Dobbs case. Justice Sam Alito and Justice Thomas and a majority of the court wanted to take the opportunity to do the thing that they had been put there to do – get rid of Roe v Wade and deliver that huge signature moment for their movement. There you saw a different impulse. You saw Roberts – who clearly comes from a lot of the racist reactionary anti-voting, anti-democracy strains of this movement and has been a leader of the anti-regulatory kind of corporate wing of the court – say “No, let’s take a slower tack. Let’s quietly roll back abortion rights using Casey’s undue burden standard and not have the blowback that we’re facing now.”
I think similarly with Project 2025, there are truly radical and extreme things that they are proposing here, like a national abortion ban using the Comstock Act. But they’re jeopardizing their gains because of the electoral backlash we are seeing. This electoral pushback is necessary, it’s proper, it’s a natural result of authoritarians seizing power and trying to impose their deeply unpopular will on the majority of people. But it also – particularly given their sort of Christian nationalist zealotry – has me really concerned about the lengths to which they’d go to secure power now that they are so close to having it once and for all.
This conversation spotlights the way the judiciary shapes the law—especially given the unaccountable power vested in the Supreme Court. It shows how interpretation of the law is political, and how the electoral arena is deeply tied to the way the judiciary evolves. The structural changes that the Right has managed to put into place are going to take decades to address, not just through Congressional action (to, for example, impose a binding judicial ethics code, place term limits and expand the number of seats on the Supreme Court) but also through informed action on the part of people. Progressive lawyers have an important role to play in explaining the significance of recent Supreme Court decisions, the present face of the judiciary and what’s at stake to communities and organizers. In addition to continuing to defend communities in campaigns at the local level, expanding voting rights and shoring up “little d” democratic processes as we highlighted in the last Dispatch, it is also important for progressive lawyers to organize themselves into a force that can counter what Leonard Leo, the Federalist Society and the conservative legal movement have been able to put in place.
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