Battle for the Bench: Resisting the Rise of the Judicial Right

By Traci Yoder, NLG Director of Research and Education

Recent Supreme Court decisions upholding Trump’s Muslim ban, allowing businesses to discriminate against LGBTQ people, and weakening public sector unions have emphasized the considerable power of the judiciary and the devastating results that occur when it is dominated by conservative judges. With the resignation of Justice Anthony Kennedy and nomination of Brett Kavanaugh, we now face a clear conservative majority on the Supreme Court for the foreseeable future. It is past time for those opposed to a right-wing agenda to bring our organizing skills to engage the judicial system and its effects on the most marginalized.

The hard right turn in the judiciary is no coincidence. Conservatives and libertarians have been planning this outcome for decades, and the moment is finally ripe for the realization of their efforts. In contrast, most people on the Left—even those deeply invested in electoral politics—lack an adequate understanding of the court system. Because the judiciary is the branch of the American government in which people feel they have the least control or input, far less organizing takes place around judicial elections or nominations. However, the outcome of lifetime judicial appointments at the federal level can influence national policy for decades.

The Left’s failure to organize on this front has provided an opening for the Republican Party to win its decades-long campaign to take over the judiciary. Between Donald Trump’s election, an influx of dark money, and a large number of federal judicial openings, the Right has seized an opportunity it has been working towards since the late 1960s. Organizations like the Federalist Society and the Heritage Foundation are taking full advantage of the situation by hand-picking federal judges for Trump, who has already appointed 42, with 92 more awaiting Senate confirmation. With nearly 150 more federal court vacancies expected by the end of his first term, Trump will have an unprecedented opportunity to shape the judiciary for a generation. Given his numerous legislative failures, it will likely be judicial nominations—along with his massive deregulation efforts—that end up being his most lasting legacy.

Understanding the Conservative Legal Movement

It is no secret that the judiciary has been a key target of conservatives for decades. Many trace their plan to gain control of the courts to 1971, when Lewis Powell wrote a confidential memorandum to the members of the U.S. Chamber of Commerce (the world’s largest business organization) just two months before he was nominated as a Supreme Court justice by Richard Nixon. The Powell memo advised American business executives to view the judiciary as “the most important instrument for social, economic, and political change,” in addition to other liberal strongholds such as the media and the academy. Alarmed by the effects of new environmental, labor, and consumer regulations on potential profits, the corporate elite took Powell’s vision and ran with it.

Constitutional legal scholar Erwin Chemerinsky has argued that, by 1968, conservatives were looking to constitutional law as the best way to scale back civil rights, weaken the rights of accused criminals, and favor the free market over employees, consumers, and the environment. Between 1969 and 1972, Nixon nominated four conservative judges to the Supreme Court; however, these justices were not able to undo the effects of the far more liberal Warren era (1953 to 1969). The Burger Court did not actually overrule any of the controversial decisions of the previous court, although it did significantly roll back their influence and set up a series of decisions which are still having an impact today. According to Steven Teles, author of The Rise of the Conservative Legal Movement, the early lesson learned by the conservative political and economic elite was that elections and Supreme Court nominations alone could not undo entrenched liberal values and practices. Consequently, the Right needed a broader and more organized infrastructure to capitalize on the appointment of conservative justices by Republican administrations.

By the 1980s, the framework of such a network was in formation and the legal profession was at its center. Throughout the 1970s, libertarian free market “Law and Economics” programs were being established in law schools and, in 1982, the Federalist Society got its start at Yale and the University of Chicago. Conservative law graduates affiliated with these groups quickly found jobs in the Reagan and Bush administrations, which worked to appoint conservative judges to federal positions. Along with this growing network of conservative and libertarian legal societies and academic programs came the establishment of right-wing public interest law firms and think tanks—all funded by a new generation of wealthy political philanthropists. The conservative pipeline to the bench was under construction.

Nearly 40 years later, the “conservative assault on the Constitution” has reached ideal conditions. The Republican Party dominates Congress and the Presidency for the first time since 2006, nearly 10% of federal judicial positions are open because Senate Majority Leader Mitch McConnell blocked President Obama from making appointments during his terms, and recent procedural changes made by both Democrats and Republicans have made it easier to more quickly confirm judicial appointments. Republicans are also ignoring established practices like getting approval from home-state Senators for judicial appointees, thereby limiting opportunities for the minority party to influence outcomes. As a result, when Trump took office, he was able to begin filling key federal judicial positions immediately.

Following the Dark Money

The conservative movement’s success would have been impossible without billions of dollars funneled through an elaborate maze of foundations, front groups, and shell organizations. The pivotal role played by the Koch, Mercer, Bradley, DeVos, Olin, and Scaife families has become increasingly clear in recent years. These donors have provided the funding needed to establish the Federalist Society, the Law and Economics Programs, conservative think tanks like the Heritage Foundation, right-wing political advocacy groups like Americans for Prosperity, and libertarian litigation centers like the Institute for Justice and the Center for Individual Rights.

This network of seemingly independent groups all funded by the same few sources has produced the perfect setup for transforming the judiciary. The Federalist Society and Heritage Foundation have spent years grooming candidates for judicial positions, and now have a direct advisory role in the Trump administration’s nomination process. The Koch-funded Americans for Prosperity has spent over one million dollars on digital ads in key confirmation states. Front groups like the Judicial Crisis Network—funded by the questionable Wellspring Committee—have spent millions on ads attacking individual Democrats for delaying the judicial confirmation process and recently announced they will be spending 1.4 million dollars to support Kavanaugh.

In addition, conservative and libertarian public interest law firms have been strategically choosing key cases to take to the Supreme Court, usually involving a sympathetic individual who feels oppressed by large institutions such as government agencies or labor unions. The Chamber of Commerce—which formed a litigation arm shortly after the Powell memo was circulated—also continues to play a key role in judicial decisions by filing amicus briefs in support of favored cases. While the influence of conservative and pro-business groups is growing, the traditional role played by the American Bar Association in vetting judicial nominees is weakening.

The end result of this well-funded machine is the production of conditions designed to benefit a particular kind of conservative judicial candidate. The nominees being rapidly confirmed share a similar profile: young conservative intellectuals from elite law schools—nearly all white men—who have been groomed and vetted by the Federalist Society. They are overwhelmingly in support of gun rights, private property, religious protections, and free speech (especially for corporations in the form of political contributions). They are overwhelmingly against the role of the regulatory state, healthcare reform, abortion, and the protection of civil rights. They are intelligent, well-connected, and aligned around a very specific style of judicial philosophy.

Unpacking Judicial Philosophy

A common refrain among Republican Presidents appointing judges is that they are looking for candidates who will “interpret the law as it is, not as they think it should be” and “apply the Constitution as written.” In technical terms, this judicial philosophy is known alternatively as originalism, textualism, or strict constructionism—a perspective maintaining that the judiciary is only responsible for interpreting the Constitution as its framers intended. This judicial philosophy solidified in the 1980s, and is the hallmark of groups like the Federalist Society. Quite literally, it means that nothing can be decided that was not already anticipated and laid out in the original Constitution over 200 years ago. Efforts by judges to address modern day situations, or to see the Constitution as a living document that must respond to social changes, are maligned by advocates of originalism as being too “activist” and lacking “judicial restraint.”

No matter what it is called, this judicial philosophy is packaged to sound neutral and reasonable while allowing its proponents to rule in favor of maintaining historically engrained power dynamics. In blunt terms, it is a politically acceptable way to support racist, sexist, classist, homophobic, transphobic and other harmful policies without appearing to be openly prejudiced. Conservatives have latched on to this framework as a way to claim that they have no ideological position at all, and to discredit and reverse more progressive judicial decisions. However, there are no neutral ideologies, and conservative judges prove this time and again as they rule in ways not explicitly outlined in the Constitution when it suits their interests.

Even more concerning and less understood are the ways conservative judges use procedural arguments to limit the power of other parts of government. In an attempt to reduce the role of the administrative state—especially the responsibility of government agencies to clarify and enforce regulations—these justices have argued that such agencies are overstepping the boundaries of what they are allowed to do by law. Rather than admit they are against the content of the agencies, or the role of government more generally, conservatives have learned to rely on these seemingly neutral procedural claims. However, behind these arguments lie a deep antipathy to any limits by the state on free market profits, including attempts to protect the environment, workers, consumers, and others harmed by the excesses of deregulated capitalism.

Overall, conservatives have been successful in articulating and coming together around an overall judicial philosophy, while liberal and leftists have been more focused on organizing around individual and intersecting issues. The benefit of originalism/textualism/constructionism is that it allows conservatives to promote a free market, anti-regulatory, discriminatory agenda without needing to take a formal ideological stand on any individual issue— and to see their decisions and the logic behind them as “outside” of the realm of politics and preference. Unfortunately, such attempts to interpret current dilemmas using a blueprint from two centuries ago are as futile as they are dangerous.

Engaging the Judiciary

Conservative and libertarian efforts to develop a network of official organizations, wealthy patrons, and a coherent philosophy have proven very successful. Today, the courts are increasingly implementing a right-wing agenda that favors free market policies, cuts back civil liberties, eases restrictions on corporations, reverses affirmative action, removes protections for immigrants, expands the power of police and prosecutors, and bolsters Executive power while limiting the regulatory abilities of the government. If Kavanaugh or a similar justice is appointed to the Supreme Court, these trends will only become more pronounced.

Accomplishing these goals depends on a judiciary willing to support a conservative and libertarian agenda. Therefore, it is imperative that the Left focus more on the judicial system. While many are aware of the Supreme Court’s influence, rarely does this knowledge extend to the local, state, district, and appellate courts that make most of the decisions affecting people’s everyday lives. Some lower-level judicial positions are chosen by election or retention votes, allowing voters to choose or remove judges. Voters have also organized campaigns to recall judges when possible. Doing so requires paying more attention to the composition of the lower courts, the ways judges in each state are chosen, and the politics and decisions of individual judges. It also necessitates more people on the left working towards judicial positions when possible. Many progressive and radical legal professionals avoid judgeships; the public interest legal path does not normally gravitate toward the judiciary as an avenue for meaningful social change. However, the recent success of left attorneys winning unlikely positions—like the election of Larry Krasner as District Attorney in Philadelphia—shows that much can be accomplished from within the legal system to alleviate the immediate harms of the criminal justice system and prison-industrial complex.

Finally, we must not be taken in by right-wing rhetoric claiming judicial neutrality. The conservative and libertarian movement is a well-funded and sophisticated attempt to cover a profit-driven neoliberal agenda with a veneer of respectability. We must also avoid the tendency to blame Trump alone and instead acknowledge that his takeover of the courts is the outcome of decades of planning and intention. Most importantly, we need to engage with the judicial branch without forgetting that the founding documents and institutions of the United States have always been built upon racism, misogyny, and genocide. The judiciary plays a major role in deciding which lives and communities are considered disposable, and therefore must be a site of organizing for the Left. The courts alone cannot save us; however, we cannot ignore their negative effects on the most vulnerable.

Main Image by Lorie Shaull (Resist sign, Supreme Court news conference to call for the reversal of President Trump’s travel ban on refugees and immigrants from several Middle East countries)


Further Reading

Michael Avery and Danielle McLaughlin, The Federalist Society: How Conservatives Took the Law Back From Liberals (Vanderbilt University Press, 2013).

Erwin Chemerinsky, The Conservative Assault on the Constitution (Simon and Schuster, 2010).

Michael Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (Simon and Schuster, 2016).

Nancy Maclean, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America (Penguin Random House, 2017)

Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (Penguin Random House, 2017).

Steven Teles, The Rise of the Conservative Legal Movement (Princeton University Press, 2008).

Posted in News, NLG Blog.