Jonathan P. Baird

For years, Senator Sheldon Whitehouse of Rhode Island has been a lone voice in the wilderness warning about the role of conservative dark money on the judiciary. He has described a multi-pronged effort. First, the conservative legal movement selects carefully vetted judges who embrace a pro-corporate world view. Then the movement unleashes millions in dark money from their donor network to support their nominees. Finally they tee up strategic cases and use amicus briefs to get the desired pro-corporate result.

In an article in the Harvard Journal on Legislation, Senator Whitehouse detailed a 50 year effort going back to the famous secret memo written by Lewis Powell, then a prominent corporate lawyer, which decried progressive gains. Powell argued for an unprecedented influence campaign on behalf of corporate America.

I thought of Senator Whitehouse and Justice Powell when I saw the story about the massive $1.6 billion donation Leonard Leo, a Federalist Society Vice-President, received from Barre Seid, a 90 year old Chicago electronics company mogul.

This unbelievably sketchy transaction, structured so that neither Leo’s group nor Seid pay taxes, is likely the biggest political donation ever. It left Leo sitting atop a mountain of cash. No one knows how this money will be spent but it is such a stupendous windfall that it is safe to assume it will be transformational over the next generation for the whole right wing ecosphere.

Seid transferred an ownership stake in his company, Tripp Lite, to Leo’s new group, Marble Freedom Trust. The trust then sold Seid’s company and netted $1.6 billion. It is estimated the transaction saved Seid $400 million in taxes. The Marble Freedom Trust is not required to publicly disclose its donations and it has wide latitude in spending on elections or other ideological projects.

The Seid to Leo money transfer perfectly encapsulates the dark money conundrum we face. Although an absolutely enormous donation, the deal went down in the shadows two years ago. We were lucky to find out about it at all. The New York Times reported it, but as noted, it was two years after the fact.

In the Citizens United era, there is no transparency. Money rules in politics. People have the mistaken notion that the judiciary is insulated from special interest influence. Nothing could be further from the truth.

Certainly, the Founders did not anticipate the corrupting power of corporations but here we are. It is not just a dark money flood – it is a tsunami.

Leonard Leo has been described as the most influential person you have never heard of. He is not just another conservative movement lawyer ideologue. He has been the mastermind of the conservative effort to reshape the American judicial system, especially the Supreme Court. He delivered to former President Trump the list of Federalist Society-vetted Supreme Court candidates and he counseled him on picks.

He has been remarkably successful in packing the Supreme Court and the federal courts with right wing extremists. Leo’s fingerprints are all over the successful nominations of five sitting conservative Supreme Court justices as well as the effort to stop Merrick Garland’s ascendancy to the High Court.

During an event in 2018, his buddy, Justice Clarence Thomas jokingly referred to Leo as “the third most powerful person in the world”. Leo has been effectively raising huge sums from anonymous corporate donors since 2005. The Seid transaction is a glimpse into a world we never get to see. Dark money is typically funding that cannot be traced to actual donors.

The conservative plan has been to groom and select judges who will unambiguously support the Republican effort to roll back laws and regulations they consider unwelcome. As Trump’s lawyer Donald McGahn has said,

“There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.”

In response to the Seid donation, Leo has said they are just trying to keep up with the Left but that is laughable. Over the last 20 years, the Left failed to prioritize judicial nominations and it has nothing in place that in any way compares to what Leo has accomplished. Results speak for themselves.

Senator Whitehouse points out how much the Supreme Court has become a reliable ally for corporate and Republican partisan interests. He writes that from 2004 to 2017, the Roberts Court issued 73 five to four partisan decisions which benefited big corporate and Republican donor interests. To quote Whitehouse:

“They included allowing corporate interests to spend unlimited money in elections, hobbling pollution regulations, enabling attacks on minority voting rights, curtailing labor’s right to organize and restricting workers’ ability to challenge employers in court.”

And this was before the devastating decisions we saw this last term.

Leo and the Federalist Society are on a mission to turn back the legal clock to a pre-New Deal era. Incredibly, they appear to believe the law was better 85 years ago. This is a deeply reactionary project designed to benefit rich Christian conservative white men. It is a legal agenda for the 1%.

I think the overturning of Roe v Wade shows that precedent will not stand in the way of the conservative wrecking ball.

Much could be done to address the dark money plague. Congress could require much more transparency. The courts have escaped the type of tight scrutiny other branches of government require. Senator Whitehouse suggests far more disclosure of donors behind political campaigns for judge, disclosure of travel and hospitality perks and reporting of ex parte contact during pending litigation.

The hidden behind-the-scenes nature of the whole conservative influence machine should shock Americans. I expect there is much we still do not know.

When you think about whom to thank when the Supreme Court makes climate change worse, destroys women’s reproductive rights, and makes it much harder for black people to vote, don’t forget Leonard Leo, the Federalist Society and the Republican Party.

A few years back, while on vacation, I was browsing in Tim’s Used Books in Provincetown. In the biography/autobiography section, I came across The Rebel Girl, An Autobiography by Elizabeth Gurley Flynn. To my surprise, Flynn wrote that she was born in Concord, New Hampshire in 1890. I had no idea Flynn was from Concord. As far as I knew, no one ever claimed her. She also lived some of her early years in Manchester. Her father had moved the family around New England as he tried to find work.

The name Elizabeth Gurley Flynn is now obscure but in the early twentieth century she was one of the most famous labor leaders in America. The title, The Rebel Girl, comes from a song written by the legendary minstrel, Joe Hill, that he dedicated to Flynn. In part, the lyrics go:

“There are women of many descriptions
In this queer world, as everyone knows
Some are living in beautiful mansionsAnd are wearing the finest of clothes
There are blue blood queens and princesses
Who have charms made of diamonds and pearl
But the only and thoroughbred lady
Is the Rebel Girl

That’s the Rebel Girl, the Rebel Girl!
To the working class, she’s a precious pearl”…

Gore Vidal once called the USA “the United States of Amnesia”. When it comes to labor history, Vidal could not be more accurate. The vital and colorful history of American labor has not been transmitted. It is forgotten history, an untold story.

Flynn was from a poor but intellectual Irish working class family. She wrote that all four kids slept in a single bed with their coats on because of the cold. Her parents were too poor even to afford a babysitter so they dragged her and her siblings to political meetings. Her parents were radicals and her father ran for assemblyman in New York as a Socialist Party candidate.

As a young teen, she was asked to give a speech at the Harlem Socialist Club in New York City and she spoke on the topic of “What socialism will do for women”. She was inspired by Mary Wollstonecraft’s “Vindication of the Rights of Women” and August Bebel’s book Women and Socialism.

Quickly Flynn proved she was a gifted orator. Right from the start she grabbed media attention. She started speaking on the street in New York City and got arrested. One newspaper headlined “Mere child talks bitterly of life”. The New York Times called her “ a ferocious Socialist haranguer”.

In 1907, her high school expelled her and she joined the IWW, the Industrial Workers of the World, also known as the Wobblies. She began a period in her life when she travelled widely around America working as a labor agitator. She said she had wanderlust in her heart. She described the IWW this way:

“The IWW identified itself with all the pressing immediate needs of the poorest, the most exploited, the most oppressed workers. It “fanned the flames” of their discontent…The memorable accusation against Jesus, “He stirreth up the people!” fitted the IWW. It set out to organize the unorganized, unskilled foreign-born workers in the mass production industries of the East and the unorganized migratory workers of the West, who were largely American born and employed in maritime, lumbar, agriculture, mining and construction work.”

Flynn was a contemporary of Emma Goldman, Mother Jones, Big Bill Haywood and Eugene Debs. She knew them all. Theodore Dreiser called Flynn “an East Side Joan of Arc”. She led the famous Lawrence Massachusetts Bread and Roses textile strike in 1912. Workers were being forced to work 56 hours a week for starvation pay. Conditions in the shop were deplorable. Mill owners were forced to settle, giving workers a 20% pay raise.

In the years before World War 1, Flynn worked to organize garment workers in Pennsylvania, restaurant workers in New York City and miners in Minnesota. She also played a central role in the silk workers strike in Paterson, New Jersey in 1913.

She was an opponent of World War 1 and like other anti-war activists, she was accused of violating the Espionage Act. The government ultimately dropped those charges. She fought against the deportation of other immigrants who had also opposed the war.

In 1920, Flynn helped to found the American Civil Liberties Union, the ACLU, and she was elected to the National Board. In 1921, She took up the struggle against the conviction of Nicola Sacco and Bartolomeo Vanzetti. The defense of Sacco and Vanzetti was
the cause celebre of the 1920’s. She was a key fundraiser.

In spite of seven years of unrelenting effort by the Defense Committee, the state of Massachusetts executed Sacco and Vanzetti in 1927. On August 23, 1977, the 50th anniversary of Sacco and Vanzetti’s execution, Massachusetts Governor Michael Dukakis pardoned them and declared any stigma and disgrace should be forever removed from their names.

After a long period of ill health, Flynn joined the Communist Party in 1936. She wrote a series of feminist articles for its paper, the Daily Worker. Flynn wrote about birth control, women’s suffrage, labor legislation for women, divorce, prostitution and desire for love. She never publicly dissented from the party line. She remained a loyalist even in the face of the exposure of Stalin’s crimes.

During the McCarthy witch hunt, Flynn and sixteen others were prosecuted for violating the Smith Act. She and the others were accused of conspiring to “teach and advocate violent overthrow” of the government. After a nine month trial Flynn was found guilty. She served two years in Federal Prison in Anderson West Virginia. Her statement delivered at her trial in 1952 is remarkably eloquent, defiant, and revealing.

In her history of American labor, Fight Like Hell, Kim Kelly writes:

“Collective working-class power was behind every stride forward this country has made, grudgingly or otherwise, and will continue to be the animating force behind any true progress.”

I am sure that is a statement with which Elizabeth Gurley Flynn would have agreed.

I think it is fair to say that fear of immigrants in the United States is out-of-conrol. And it is not just in the United States.

Fascist and far right politicians have persuaded citizens in many countries that the greatest threat they face is not climate change or economic inequality. It is faceless masses at some distant border.The demagogic message from Donald Trump, Victor Orban and Marine Le Pen is the same: they will replace you, they will eventually outnumber you.

A May Associated Press-NORC Center for Public Affairs Research poll found that 3 in 10 worry more immigration is causing native-born Americans to lose their economic, political and cultural influence. Irrational fear of outsiders has skewed public understanding.

The lack of empathy for immigrants was recently driven home by the horrific June deaths of 53 people inside a sweltering tractor-trailer in San Antonio, Texas. The truck did not have a functioning cooling system as temperatures spiked over 100 degrees. People wedged in like sardines died from heat exhaustion and dehydration. The dead included victims from age 13 to 55 who were from Mexico, Guatemala, and Honduras. All were believed to be brought illegally through the border with Mexico.

I didn’t see much sympathy for these dead. It was just a blip in the news cycle. But the story is very reminiscent of Jewish experience. Just like Mexican and Central Americans now, Jews were once smuggled into America.

The story has been forgotten. One hundred years ago, Jews were a suspect class. Anti-semitism was widespread and much of the American public held stereotypical views, not too different from how “illegal aliens” are viewed now.

In 1921 and later in 1924 strict immigration quotas were put into place that greatly limited the number of Southern and Eastern European immigrants, especially Jews, who could come into the U.S..

The quotas were so limiting that the new laws prompted illegal smuggling operations. The fact of the quotas did not stop European Jews from wanting to come to the U.S.. No one knows exactly how many Jews illegally emigrated to the U.S.. Over the period from 1921 to 1965, best estimates are in the tens of thousands, possibly higher.

The story is told in Libby Garland’s book After They Closed the Gates. Smugglers brought Jews over on ships with forged travel documents. People crossed the border in Mexico, Canada and also by boat from Cuba. Havana was a center for smuggling from Cuba into the U.S. It afforded easy access to the Gulf and Atlantic ports, especially to points on the Florida coast.

Garland shows how complicated and multi-faceted the process of immigration was. Garland writes:

“Emigration was only one of many arenas in which Eastern European Jews relied on illegal methods. Buying and selling on the black market, smuggling, assuming false identities and obtaining forged documents were, particularly in the chaos that followed World War 1, facts of life.”

There was a dark side to the alien smuggling. Liquor bootlegging and sex trafficking were often part of the rampant illegality. The smugglers were often brutal. Garland says immigrants who did not pay up or who were naive enough to pay up front would get dumped overboard. Smugglers often robbed Jewish passengers of their valuables.

Immigrants often relied on friends and families in the United States for detailed instructions about the story they should offer which would provide the best chance for entry. Jewish name-changing was a rite of passage.

Given the experience Jews had with anti-semitism in Russia and eastern Europe, many people perceived illegal immigration as a perfectly legitimate choice. Desperate situations demanded creative responses. Garland says that being Jewish in Eastern Europe often meant having to engage in a process of creating improvisational and shifting identities.

Just as with immigrants now, Jewish illegal immigrants left Eastern Europe and Russia because of extreme poverty, lack of economic opportunities and the threat of violence. Immigration restriction and the lack of a legal path to citizenship contributed to people turning to the smugglers.

From the perspective of 2022, knowing what we know now about the Holocaust, that Jewish illegal immigration now looks benign and it is never mentioned. Closing the gates left European Jews at the hands of the Nazis. In retrospect, the extreme quotas that kept Jews out of the United States were both a tragedy and a giant mistake. How many were murdered who could have been saved?

Maybe Jewish history should make Americans reconsider the hysteria directed against Mexican and Latin American illegal immigrants.

No one supercharged the fear and hysteria more than Trump Administration hatemonger, Stephen Miller. Miller’s uncle, David Glosser posted this on Facebook:

“My nephew and I must both reflect long and hard on an awful truth. If in the early 20th century, the USA had built a wall against poor desperate ignorant immigrants of a different religion, like the Glossers, all of us would have gone up the crematoria chimneys with the other six million kinsmen whom we can never know.”

The last major immigration reform was enacted in 1986. We remain long overdue for new legislation which could provide a roadmap to permanent protections and citizenship for undocumented people.

I have been trying to think of the right metaphor to describe the U.S. Supreme Court’s last term. I would settle on “train wreck”. The major problem with the characterization of train wreck is the fact that most train wrecks can get cleared away relatively quickly and trains can get back on the tracks and running. The damage is not necessarily long-lasting. That cannot be said about the Supreme Court’s last term.

The damage done will be long-lasting. Whether it is guns, climate change, criminal defendants’ rights, Native American tribal sovereignty or religious liberty, the defeats were epic. But they pale next to the harm done to abortion rights in the Dobbs case.

Taking away a constitutionally protected right that has been guaranteed for 50 years has never happened before. Up until the Dobbs case, the Constitution safeguarded women’s right to decide for herself whether to bear a child. Now the Court has given that right to the state.

The idea that a court would take away a given right is counter-intuitive. While American courts have a checkered history, we generally expect that courts will bestow rights – not short-circuit them.

What is disturbing about Justice Samuel Alito’s majority opinion in Dobbs is not just the holding that there is no right to abortion, it is also his reasoning. It reeked of misogyny as well as a one-sided grasp of history.

Women simply do not figure in the decision. That is true even though as an issue abortion could not be more exclusively about women.

Justice Alito argues that the right to abortion is not deeply rooted in our nation’s history and traditions. He says the right to abortion is not mentioned in the 1787 Constitution. Nor is it an unenumerated right. Of course, the words “woman” or “sex” are not mentioned in the Constitution. That did not change until 1920 when the nineteenth amendment was added to the Constitution and gave women the right to vote.

In reading Justice Alito’s opinion, you get no sense of the profound sexism that has shaped American history. Fifty-five white men crafted the Constitution. As Jill Lepore has written, women were not “part of the political community embraced by the phrase “We the People” “.

In every respect women were second class citizens. There were no women judges or legislators. Neither could women run for or hold office. A patriarchal system relegated women to the domestic sphere to be wives and mothers. Men virtually owned their wives. When women married, they lost their legal identity. They couldn’t own property, control their own money or sign legal documents.

Domestic violence was practically a norm. There was no such thing as marital rape. Married women had no right to say “no” to sex. Both English and American jurisprudence did not see husbands as ever guilty of rape of a wife.

Based on the Dobbs opinion one might conclude that Justice Alito had never heard of women’s liberation. Alito conveys no sense of appreciation of any women’s history.

It is telling what legal authorities he cites in Dobbs. Alito has a fixation on medieval men. Most prominently he cites a 17th century English jurist, Sir Matthew Hale, who he calls a “great” and “eminent” legal authority. He mentions Hale more than 10 times. Hale lived from 1609-1676.

In 1662, Hale presided over the trial and execution of two women, Rose Cullendar and Amy Duny, for witchcraft. The trial became a model for the Salem witch trials which were held 30 years later.

Hale found independent women to be a threat to society. If not owned by a husband or a father, Hale believed women could become satanic.

Hale believed women’s bodies belonged to men. He was steeped in the Christian religious view that women were made from Adam’s rib. Beating your wife was encouraged as a corrective tool.

Probably Hale’s most significant “contribution” to legal scholarship was his defense of marital rape. It remained the legal standard in the U.S. until the 1970’s. Law Professor Jill Hasday writes that she has read hundreds of American judicial opinions, citing Hale. For centuries, male legal authorities like Hale did not believe women had any bodily autonomy.

Professor Hasday goes on to say that the reason Alito cites Hale is because he wants to establish that the early American legal system was opposed to abortion. But Alito botches the history. Although little remarked on, the American Historical Association and the Organization of American Historians issued a joint statement criticizing the Court decision. They wrote:

“… the court denies the strong presence in U.S. history and traditions at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.”

The Court majority chose to disregard the historians. Before the Dobbs decision, both American historian organizations had written an amicus brief outlining the historical and legal precedents of abortion in the U.S..The amicus cut directly against Alito’s argument that abortion was not deeply rooted in American history.

How anachronistic and messed-up is it that Alito would rely on a man from the Dark Ages who believed women could be witches as his authority on reproductive rights. Even by the seventeenth century, Hale was considered a misogynist. Back then, many were already doubting allegations of witchcraft.

By sending abortion back to the states. Alito knowingly is transferring power back to the white right wing men who control so many state legislatures. He knows his decision will result in abortion care being severely restricted or outlawed in roughly half the states. Now we can return to the era of coat-hanger abortions.

The Republican Party owns this debacle. This was their male supremacist project for the last 40 years. As happened in Kansas, the voters must make them pay.