In August of 2018, Leonard Leo, at the time vice president of the Federalist Society, spoke at the Koch Summit in Colorado Springs and gloated over the ongoing right-wing takeover of the courts. As CNBC reported at the time, Leo “told a small group of financiers that the Trump administration was looking to overhaul a large chunk of the federal court of appeals by the end of the year.” Addressing some of the wealthiest donors to the Republican Party, including Charles Koch, Leo did a victory dance. He crowed that “by the end of this year my prediction is that basically 26 percent of the federal appellate bench will have changed under the Trump administration.”
This moment of exultation was fully justified. Leo perhaps even understated the role he and the Federalist Society played in reshaping the courts and American society. Created in 1982, from its early years the Federalist Society has been instrumental in vetting Republican judicial nominations. But this advisory role became even more intense during the Trump presidency. Lazy and without a background in movement conservatism, Trump explicitly outsourced judicial nominations to the Federalist Society. In 2016, as a presidential candidate, Trump told a radio show run by Breitbart, “We’re going to have great judges, conservative, all picked by the Federalist Society.” This was one case where Trump was true to his word.
With Leonard Leo and Federalist Society crew drawing up short lists, Trump packed the courts with right-wing activist judges who are even more ideologically rigid than those nominated by earlier Republican presidents. This included three Supreme Court justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
The result has been the biggest judicial revolution since the late 1930s, when Franklin Roosevelt’s long tenure as president allowed him to replace a cohort of reactionary judges with more liberal jurists. Trump’s court—or, rather, the Federalist Society court—extinguished the constitutional right to abortion in the 2022 Dobbs v. Jackson Women’s Health Organization ruling. But the Dobbs decision has been only the most incendiary act of a court that is rapidly rolling back rights. As Al Jazeera noted in the wake of the Dobbs decision, the rescinding of abortion rights came in the same week where the court “shielded police officers from being sued for Miranda violations; further broadened its already expansive interpretation of gun rights; narrowed the separation of church and state when it comes to religious education.” Thanks to the Federalist Society court, almost every liberal policy goal, ranging from student loan relief to affirmative action, is potentially under the knife of a deeply reactionary judiciary.
Given the immense impact of the Federalist Society under Leonard Leo, there’s been surprisingly little attention to an emerging conflict-of-interest story involving the organization and its leader. On Wednesday, Politico published an investigation “based on dozens of financial, property and public records dating from 2000 to 2021” that found that
Leo’s lifestyle took a lavish turn beginning in 2016, the year he was tapped as an unpaid adviser to incoming President Donald Trump on Supreme Court justices. It’s the same period during which he erected a for-profit ecosystem around his longtime nonprofit empire that is shielded from taxes. Leo was executive vice president of The Federalist Society at the time.
The article quotes Virginia Thomas, a right-wing activist married to Supreme Court Justice Clarence Thomas, describing Leo as a man who wears “many hats” and “doesn’t really tell all that he does.” One of those hats is that of vice president of the Federalist Society, a post he gave up in 2020 to become cochair of the Federalist Society’s board of directors. Under another hat, he runs two other nonprofits, The 85 Fund and the Marble Freedom Trust (which was gifted with a war chest of $1.6 billion by a right-wing donor, Barre Seid). But not all of Leo’s hats are nonprofit. One hat is for serving as chairman of CRC Advisors, a political consultancy firm started in 2020. According to Politico, Leo’s nonprofits have given the for-profit CRC Advisors $43 million in payments.
On the face of it, this looks like a potentially huge conflict of interest. Leo’s role in juggling money from nonprofits to profits is mirrored by a shift in his lifestyle. Until the Trump presidency, the Federalist Society bigwig seemed to live like a normal middle-class Washingtonian. “Since 2016, however,” according to Politico, “his recent wealth accumulation has included two new mansions in Maine, four new cars, private school tuition for his children, hundreds of thousands of dollars in donations to Catholic causes and a wine buyer and locker at Morton’s Steakhouse.”
Politico’s reporting on Leo is extensive and suggests conflict of interest and self-dealing—not only by Leo but also by his close associates.
Responding to the article, Rhode Island Senator Sheldon Whitehouse tweeted, “Good work by Politico exposing the seamy dark money and creepy front groups involved in the capture of the Supreme Court, and how well the operatives involved did. Ugh.” Whitehouse has a history of investigating the impact of dark money (sometimes laundered through the Federalist Society) on the courts.
The possible corruption of the courts needs to become something more than Whitehouse’s hobbyhorse. It should be a major focus for the Democratic Party. The White House ought to elevate the topic to a national priority, and Senate Democrats have to push for an investigation. Beyond Leonard Leo, there are many more court scandals that deserve the spotlight of public scrutiny, ranging from the political ties to the far right of Clarence and Virginia Thomas to the botched vetting of Brett Kavanaugh’s nomination.
This is a scandal about more than just possible misdeeds in the nonprofit sector. It cuts to the heart of an existential issue of American democracy: Will the Federalist Society Court be allowed to thwart the Democratic Party’s ability to govern when it wins elections?
In the long term, the solution to the problem will have to include expanding the Supreme Court (and possibly the lower courts). But this expansion won’t happen unless Democrats make the political case for why it is necessary.
Elite liberals’ and conservatives’ love of norms and traditions serves as a brake on any push for court expansion. Highlighting possible corruption is an answer to these qualms. Court expansion has to be a political movement, one that will gain support not just by criticizing bad decisions but also by making clear that the existing courts were created by antidemocratic, dark-money forces.