Imagine how Lois Lane would feel if she found out that a rich industrialist gave Lex Luthor $1.6 billion to start mining Kryptonite. Her comic-book howl is the only thing I can think of that might approximate my own reaction to the news that electronics magnate Barre Seid gave conservative kingpin Leonard Leo $1.6 billion, tax-free, for his new “nonprofit” venture, the Marble Freedom Trust. The most effective villain in America just got a literal fortune to play with.
Leo is the longtime leader of the Federalist Society; as such, he is as responsible as any single individual can be for the conservative takeover of the judicial branch. He has nurtured the careers of countless conservative judges and helped develop the theories of law that give more rights to gun owners than to the half of the population that has a uterus. He’s been instrumental in lobbying Republican politicians to support his judicial candidates. Most important, Leo has been able to get buy-ins from various Republican constituency groups, like the gun lobby and the religious right, to functionally cede the judicial nominations process to him and his organization. Justice Samuel Alito may have killed Roe v. Wade, but it was Leo who fashioned the murder weapon and put it in his hand.
Leo and the Federalist Society have accomplished all of this on a relatively small budget. The society’s 2020 tax filing lists just north of $20 million in revenue. In addition, Leo is at the center of a network of conservative nonprofits that have raised millions in “dark money” donations—more than $250 million between 2014 and 2017 alone—to help remake the judicial system, according to The Washington Post.
This might sound like a lot, but the sad reality is that buying the Supreme Court, as Leo and the Federalist Society have effectively done, is incredibly cheap. To put the money spent on the judiciary in context, the two major candidates in the 2020 presidential election raised $1.8 billion, and an estimated $14 billion was spent on the election as a whole. The 2022 midterms are projected to rack up a $9 billion advertising tab. Obviously, winning the White House and the Senate are important steps along the road to political domination, but winning the judiciary offers something more: Once a group like the Federalist Society influences the selection of even one Supreme Court justice, that justice serves for life and doesn’t have to run every two, four, or six years; they are then perfectly positioned to shape the laws determining who has rights, who gets to vote, which party wins an election. In this way, Leo has been able to shift the balance of power in this country for a fraction of the cost of influencing the popular vote.
Given what Leo managed to do with a quarter of a billion dollars, the prospect of what he will do with $1.6 billion is downright terrifying. While we don’t know precisely how he intends to use the money, the Marble Freedom Trust’s stated mission—described in tax filings as “to maintain and expand human freedom consistent with the values and ideals set forth in the Declaration of Independence and the Constitution of the United States”—is plenty ominous when you consider who the drafters of the Declaration and the Constitution considered entitled to “human freedom,” and who they did not.
The other hints are no less reassuring. The Marble Freedom Trust’s filings suggest that it’s involved in funneling dark money to a series of conservative interest groups, including some, like the Rule of Law Trust, that Leo himself helms. Another group, the Donors Trust, is well-known for shoveling funds to what Mother Jones described as “anti-union legal shops, climate change deniers, pro-life advocates, libertarian think tanks, media watchdog groups, and a panoply of other right-leaning causes.” And a third, the Concord Fund, more familiarly known as the Judicial Crisis Network, is infamous for pushing right-wing judicial nominees and defending alleged attempted rapist Brett Kavanaugh.
Robert Maguire, the research director of Citizens for Responsibility and Ethics, summed up the threat this way: “I’ve never seen a group of this magnitude before,” he told CNN. “This is the kind of money that can help these political operatives and their allies start to move the needle on issues like reshaping the federal judiciary, making it more difficult to vote, a state-by-state campaign to remake election laws and lay the groundwork for undermining future elections.”
My own worry is that this donation will allow Leo to spread his particular poison to the state courts. There are only 870 federal judgeships, and Leo really needs only half of them in his pocket to get what he wants. But there are over 30,000 state court judges, most of whom have to run for their position in local elections.
These judgeships are the next logical step for the conservative legal movement. Its control over the federal judiciary, and especially the Supreme Court, means that fewer broad constitutional rights will exist for women, people of color, and the LGBTQ community, and more power will be given to the states. The next thing for the movement to do is to control the power of state legislatures by controlling state courts. Already, we’ve seen important fights at the state level about protections for voting rights, transgender rights, and abortion rights, as conservatives have taken the federal government out of the equation. If people like Leo want to continue suppressing the rights and dignity of others, dominating state courts is the way to go. And it shouldn’t be that expensive to do, given how little attention is paid to state judicial elections. A few dollars to vet Republican judicial nominees here, one or two shameless attack ads on the slate of Democratic nominees there, and it won’t be hard to get a slate of conservative judges elected, even in a “liberal” state.
Leonard Leo is smart. Like Lex Luthor, he knows where to find the power in this system. He understands how institutions work. He understands how to make the law. Now he’s adding “rich” to his list of powers. It’s going to take a whole Justice League to stop him.