Jonathan P. Baird

I would bet that if you asked most regular people who Leonard Leo was, the overwhelming majority would say they never heard of the guy. Leo first came to public attention when former President Donald Trump was considering nominees to the U.S. Supreme Court. Leo, a leader in the conservative legal organization, the Federalist Society, gave Trump a list of names they had vetted. From that list, Trump picked Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

If being Trump’s judge whisperer was the only thing Leo ever did, that alone would have been significant. However, that barely touches Leo’s accomplishments. Operating behind the scenes, he has created a conservative legal juggernaut of staggering influence.

Probably Leo has been most successful as a network builder. Whether it is the U.S. Supreme Court, federal courts, state supreme courts and state solicitor generals and attorney generals, Leo has been the architect of a conservative power grab in all these forums. He advised the Trump administration in filling more than 200 positions in federal district and appellate courts. He has cultivated pipelines of conservative legal talent and then has used Federalist Society connections to place proteges in positions of power.

Leo has had tremendous success as a fundraiser. It is no exaggeration to say that dark money associated with his various front groups have bankrolled the entire conservative legal movement. In August 2022, a 90 year old right wing billionaire, Barre Seid, gave a new group set up by Leo $1.6 billion. It was the largest known political advocacy donation in U.S. history.

With that immense amount of money, Leo then distributed much of that money throughout the conservative legal movement. The money has been used to influence elections, judicial appointments and public policy battles. In a speech to the Federalist Society, Leo’s good friend, Justice Clarence Thomas introduced Leo and referred to him as “the number three most powerful person in the world”. Thomas may have been joking but he was not off the mark.

ProPublica and the NPR show On The Media recently did a three part podcast about Leo titled “We don’t talk about Leonard”. The podcast delved deep into the world around Leo and many people were unwilling to talk about him. He is funding so many organizations that no one who takes that money wanted to run the risk of alienating him. People generally did not want to go on the record.

Even before he got the $1.6 billion donation in 2022, Leo was a prolific fundraiser. According to ProPublica, tax records show that between 2014-2020, groups in the Leo orbit raised more than $600 million. Leo is the embodiment of dark money, where the source of spending utilized to influence elections, public policy and political influence is never disclosed to the public. His frequently name-changing non-profits pass along money to each other. The law allows non-disclosure of where money came from.

When asked about the money, Leo will always say something like he is just trying to keep up with the left but what he is doing is unprecedented. Speaking as someone on the left, I would acknowledge the left has nothing like what Leo has set up.

He has created an apparatus that includes think tanks, law firms, marketing firms, academics, shell companies and journalists designed to steer the law in a pro-elite, anti-abortion, deregulatory and anti-democracy direction. And, as noted, the enterprise is funded anonymously so it remains largely hidden. Citizens United paved the way for unlimited secret corporate political spending.

When people write about the courts, context is often missing. So many articles begin by looking at an individual case. What is missed is that Leo, the Federalist Society and their extreme right wing billionaire funders are commandeering democracy by using their massive money machine to capture the courts.

Being unable to win many popular elections because of their reactionary agenda tilted to supporting the super-rich, conservatives like Leo work to control democracy through the ultra-minoritarian power of the Supreme Court. Leo did not start his efforts during the Trump years. He was also an advisor to George W. Bush on his Court appointments including John Roberts and Samuel Alito. Leo has spent the last 30 years working this project.

The last thing Leo wants is the nomination of judges who might deviate from his extreme right orthodoxy. He looks at justices like Sandra Day O’Connor, David Souter and Anthony Kennedy as squishy and failing his litmus test.

He wants young conservative judges in the Thomas/Alito mold who can be on the court many years and who are pro-gun, anti-abortion and anti-gay. Leo has cultivated the careers of many young lawyers. He then will try to get them placed so they can further his culture war agenda by deciding cases he and the Federalist Society want advanced.

These days, cases don’t accidentally make their way to the Supreme Court. Leo has been all about getting test cases to the High Court . He scored his biggest win when abortion rights were gutted but Leo has a big agenda. I suspect reversing gay marriage and opposing contraceptive access are next.

In his most recent incarnation, Leo is now the chairmen of Teneo Network, a group that plans to “crush liberal dominance” in American life. Teneo plans to do to American society what the Federalist Society has done to American law. He is fighting the woke and Hollywood which he, as a Catholic, sees as corrupting youth.

Many liberals and progressives have failed to understand what Leo has constructed. He has had a generational timeframe and has undeniably pushed many courts, including the Supreme Court, in a far right direction.

Any Democratic administration now or in the foreseeable future must consider the reality that the Supreme Court will likely block any major progressive reform it can, using legal mumbo-jumbo like the major questions doctrine. This is Leo’s legacy. Progressives need their own long-range generational strategy. Without that, we will be playing defense indefinitely.

With so much news going on, one story did not receive the coverage it should have. The Biden administration agreed to settle an ACLU class action lawsuit, Ms. L v ICE, that will prohibit any future administration from separating immigrant families at the border through 2031. It also allows parents the ability to apply for expedited asylum consideration, behavioral health care and housing support. The settlement did not include monetary reparation.

Back in 2018 an estimated 5500 immigrant families were separated at the border while the family separation policy was in effect. The Trump administration zero-tolerance policy referred parents for prosecution for illegally crossing the border. The government would not allow children and parent to be detained together. Immigration officials sent the children to large warehouses that served as juvenile centers.

The cruelty of this Trump policy was appalling. Babies and toddlers were literally ripped from their parent’s arms. The youngest child separated from their family was only six months old. Even if a mother was breast-feeding, it did not matter. This was up there on the heartlessness scale.

The separated families were not told if they would ever see each other again. Many children and parents did not see each other for over a year or more. The trauma inflicted on these children will be life-long and emotional and cognitive damage are a certain result.

While many of the separated families have been successfully reunited, according to the ACLU, up to 1000 children are still not with their parents. The government deported many of the parents and utterly failed to keep track of the scattered families. The disregard and contempt for this population could not be more apparent.

Lee Gelernt, the ACLU’s lead counsel in the case, pinpointed this reality:

“The Court said it appears that the Trump administration tracked property more diligently than they tracked the whereabouts of little children. We have been searching for years for these families.”

The settlement requires the government to continue to help reunify families, including finding parents and guardians who were previously deported. The government committed to bringing them back to the U.S.. Before separating families, immigration officials now must have evidence of child abuse or they must be able to show the parent committed a serious crime. Under the settlement, the families’ lawyers would have to be notified and they could challenge a separation.

Even if they were previously denied, separated families would be able to apply for asylum. That alone is a big deal. Seeking asylum from persecution is a human right that is protected under American law. The law dates back to the aftermath of the Holocaust when the United Nations ratified the Universal Declaration of Human Rights.

Successive administrations have tried to restrict the right to asylum. While the Trump administration set a new low, the Biden administration has, to some extent, continued Trump-era policies. When their bogus Title 42 expired earlier this year, the Biden administration enacted a new policy that prohibited asylum for almost everyone who traveled through another country on their way to the U.S..Unless you were from Mexico, the new policy acted as a bar. Many asylum seekers are from south of Mexico.

Under U.S. and international law, asylum seekers should at least get a fair hearing.The Biden administration has thrown up additional roadblocks for asylum seekers. They created a cell phone app as an exclusive means for how most people can make an appointment at a port of entry for an asylum interview.

The app, CBP One, has proven very difficult to access. The asylum seeker needs a relatively new smartphone, a reliable internet connection and proficiency in one of the languages the app supports. Not surprisingly, many asylum seekers do not have up-to-date cellphones and getting through is a virtual impossibility.

Unable to obtain a CPB One appointment, they remain stranded in extremely dangerous circumstances where they are targets for kidnapping, violence and sexual assault. Parts of Mexico near the border are notorious for violence against immigrants. Many have been killed or have died of medical neglect.

No subject has been more demagogued than immigration. The MAGA movement and Donald Trump have poisoned the well by spewing hateful and dehumanizing lies about immigrants. They invoke great replacement and the fear that dark-skinned hordes are, to use Tucker Carlson’s words, replacing legacy Americans.

Republican governors like Ron DeSantis have treated immigrants like props in his political stunts, flying them to Martha’s Vineyard on false pretenses. You have government officials preying on vulnerable people who only want to have a better life.

Just to be clear on this, the United States is suffering from a worker shortage. There has been an increase in immigrants seeking entry into the United States. The demagoguery is the racism that sees immigrants who can contribute to the economy as a threat to white Americans. America has always been a melting pot and the current wave of immigration is no different than earlier waves. Immigrants are needed by our economy and should be welcomed.

Former President Trump has refused to rule out re-instituting the family separation policy if he is re-elected. While Trump may have no respect for the law, if he does want to bring back family separation, he will have to contend with Ms. L v ICE, which remains in effect for eight more years.

Nothing, though, can erase the awful trauma and harm the Trump administration has inflicted on innocent children.

In November, the Supreme Court will be hearing a case, United States v Rahimi, about whether the Second Amendment invalidates a federal law which prohibits possession of a firearm by an individual subject to a domestic violence restraining order. The Fifth Circuit Court of Appeals, a federal appeals court with jurisdiction over Texas, Louisiana and Mississippi, invalidated the law on its face holding that people subject to a restraining order have a constitutional right to possess guns.

You don’t have to be a lawyer to know that what the Fifth Circuit did in this case was nuts. A court had already determined that the abuser is “a credible threat to the physical safety of such intimate partner”. The sexist disregard for the safety of women is truly shocking. It is part of a more general societal failure to reckon with public safety issues connected to guns.

I had my own personal revelation around guns and domestic violence. A number of years back when I worked as a lawyer for New Hampshire Legal Assistance, I spent almost two years handling domestic violence-related cases. Often the cases were civil restraining orders seeking protection from abuse at a final hearing. I also handled some custody and divorce cases where domestic violence factored into the case.

Doing the cases, I saw enough to become aware that among abusers, there was a subset who relied on weapons to intimidate and to exercise control over their victims. Often the abusers had extensive arsenals. They would wear weapons on their person that included guns and knives fitted into shoulder and ankle holsters.

There was an unmistakeable message to the domestic violence victim. “Do as I say or else”. Death threats, threats of bodily harm and threats to kidnap children are all too common.

At the risk of seeming naive, discovery of this dark side of the domestic violence universe surprised me. You don’t see it because the abusers typically operate behind closed doors. In spite of all the domestic violence education that has transpired over the last 50 years, the extent of the guns/domestic violence confluence remains obscured and under-appreciated.

Guns back up the threats and emotional abuse and they act as the enforcer. They are an essential tool in the domestic violence purveyor toolkit.

Every month 70 women are shot and killed by an intimate partner. Over 4.5 million women have reported being threatened with a gun by an intimate partner. Access to a gun makes it five times more likely that a woman will die at the hands of a domestic abuser. In nearly half of mass shootings with four of more people killed, the perpetrator shot an intimate partner or a family member.

The public health dimension of the guns/domestic violence confluence has been hidden. It is an enormous public health emergency. I would suggest that the gun industry and gun rights organizations are playing a role similar to the role the tobacco industry played with cigarettes and fossil fuel companies are playing with climate change. They merchandize doubt in an attempt to muddy public understanding.

Interestingly, In the Fifth Circuit decision in Rahimi, one of the judges, James Ho, in a separate concurrence, raised the classic canard. In his opinion, Ho argues that courts should be skeptical of a law seeking to disarm people subject to a domestic violence restraining order because women alleging abuse use restraining orders as a tactical leverage device to secure favorable rulings on other issues like custody, child support and exclusion from marital residence.

No doubt that happens but Ho uses it to minimize the very real threat to women the Court’s ruling represents. The Fifth Circuit entirely misses the sexist background to guns and domestic violence. The dynamic of power, control and victimization is not understood. Women have never had equal rights, particularly around domestic abuse.

To fully appreciate the depth of the sexism, American history must be visited. For a good part of our history, husbands had a legal right to subject their wife to physical violence. It was called chastisement if a wife defied her husband’s authority. A husband could corporally punish his wife as long as he didn’t inflict permanent injury upon her. Really until the 1970’s and the advance of feminism, wife-beating was considered a private matter between husband and wife. The state did not intervene.

Women’s lesser rights in the personal realm fit in with the broader historical pattern of men having rights and women having lesser or no rights. Ironically, the Fifth Circuit was blind to this sexist history even though they use their own version of history to justify the outcome in Rahimi.

The Fifth Circuit found that gun laws must fall unless the government can prove the regulation is consistent with the Nation’s historical tradition of firearm regulation. That court couldn’t find historical analogies in early American history. They found that early laws that disarmed people considered to be dangerous were not on point. The Fifth Circuit’s analysis relied on an interpretation of the law mandated by an earlier Supreme Court case, New York Rifle & Pistol Association , Inc. v Bruen.

The crazy thing is that the Fifth Circuit did not consider how much American society and firearm technology have changed since the 18th century. A misguided originalism leaves out all we have learned about domestic violence. Nor did it consider the massive proliferation of guns which did not exist in early America.

Zackey Rahimi is not exactly the ideal defendant. Between December 2020 and January 2021, he was involved in five shootings. He had threatened his then-girlfriend with a gun and was seen dragging her into his car at a public parking lot before firing a gun at an eyewitness. He pleaded guilty to possession of a firearm while under a restraining order.

Now it is up to the Supreme Court to decide this case. A decision to uphold the Fifth Circuit’s ruling would potentially re-arm thousands of batterers who had committed court-found abuse. It is hard to imagine something more dangerous.

I expect that many Americans remain uncomfortable with the notion that Donald Trump and his MAGA movement are fascist. The word “fascist” is a political football. Both sides of the political spectrum toss it around and use the term to describe their adversaries.

Given that reality, rather than arguing about the correctness of the term, it makes sense to look at what political developments are most worrisome to our democracy. One development is the number of voices on the political Right who are calling for a dictatorship because of their dark view of American society.

Maybe readers will remember two years back when on FOX Tucker Carlson was singing the praises of the Hungarian strongman Viktor Orban. Carlson spent a week in Hungary and he portrayed Hungary as a conservative paradise. Orban has turned Hungary into what he calls an “illiberal state”.

Moving to control much of the country’s media, Orban has followed a model often employed by authoritarians. Stocking the courts with loyalists, he gerrymandered the voting system to make it much harder for opposition parties to win. He floated apocalyptic conspiracy theories about dark forces undermining the will of the people, invoking a version of great replacement theory. He demonized George Soros and immigrants, promoting antisemitism and xenophobia. Orban wants to remain in power indefinitely.

Support for a strongman solution in the Orban tradition has been gaining ground on the American Right. Kevin Slack, a right wing author and intellectual from the ultraconservative Hillsdale College in Michigan has written that the “New Right now often discusses a Red Caesar, by which, it means a leader whose post-Constitutional rule will restore the strength of his people”.

In the Guardian, Jason Wilson writes that a theory called Caesarism as an authoritarian solution to the claimed collapse of the U.S. republic has been advocated in podcasts and house organs of the far right especially those associated with the Claremont Institute. Probably two of the most well-known individuals associated with Claremont are former Trump advisors John Eastman and Peter Anton.

The Claremont scholars who represent a variety of extreme conservative perspectives do generally see the U.S. as a decadent failed state. Anton has written the “U.S. peaked around 1965”. The Claremont scholars see the U.S. as dominated by the radical left. While that would no doubt come as a surprise to those on the left, the hard right sees a stew of woke ideology, transgenderism, anti-white racism, open borders and an overreaching federal government out to take guns away.

Part of the extreme right’s loss of faith in democracy has been their inability to win elections. They see no path to power through democratic elections. In particular, Donald Trump’s loss in 2020 has fueled feelings of desperation and radicalized some of his followers. The argument is that only a Red Caesar can cut through deep state dysfunction and constitutional gridlock to impose order.

Donald Trump is the putative Red Caesar. As the Republican frontrunner, he is seen by the extreme right as the potential strongman who can seize control to stop the great replacement and restore white and Christian supremacy. He will make the argument that he alone is capable of fixing the chaos.

There is a religious dimension to the Caesarism. A May 2022 University of Maryland poll found that 61% of Republicans favored “officially declaring the United States to be a Christian nation”. Christian evangelicals have been a critical part of the Trump base in 2016 and 2020. The Christian authoritarian trend has been reflected in retired general Michael Flynn’s Reawaken America Tour which has emphasized there is a spiritual and political war going on in America.

Trump’s erratic behavior of late is noteworthy. As the pressure has built on him because of his various criminal and civil prosecutions, his words have taken a noticeably violent turn. Trump said former Joint Chiefs of Staff Chairman Mark Milley committed
“treason” and suggested he be executed.. He said Jack Smith was “deranged and a psycho”. He has called on police to shoot shoplifters. He said immigrants are “poisoning the blood of our country”.

The historian Ruth Ben-Ghiat has said “violence is Trump’s brand”. She has written:

“Since the fascist years, authoritarians have used propaganda and their personality cults to change the perception of violence among their followers. The goal is to remove hesitation about tolerating or participating in violence against one’s compatriots by presenting that violence as necessary and even morally righteous.”

Democracy is a system where political parties must accept the decision of the voters. Trump is operating off a different paradigm. He says he will prosecute Joe Biden as well as judges and prosecutors who have held him accountable. He threatened MSNBC calling them “the enemy of the people”, intimating action against a free press. This Red Caesar is training his base away from democracy and towards normalizing political violence. He is training his followers to see violence in a positive light.

It is entirely predictable that Trump will be talking about how the 2024 election will be stolen from him. In fact, without any evidence, he already has been saying that. Any election he does not win is, by definition, rigged. If he does lose again, I am wondering about the next January 6. Oddsmakers would not be betting on a peaceful post-election period.

All who believe in democracy and the rule of law must take the Red Caesar threat seriously. Authoritarians do not see failure as an option. Authoritarians typically leave office involuntarily.

Trump’s difficult circumstances dictate that he is unlikely to exit without a bitter fight. When you are running to stay out of jail, you are not likely to play by the Marquess of Queensbury rules. The threat is real.

The stories about corruption at the U.S. Supreme Court keep mushrooming. We first heard about Justice Clarence Thomas accepting expensive gifts from billionaire Harlan Crow that Thomas never reported. After Thomas became a justice, Crow became his “friend”. Then we heard about Justice Samuel Alito and his unreported trip with billionaire, Paul Singer, an individual who has had business before the Court. Alito hasn’t recused himself.

I think the recent story about Justice Thomas and the Koch network gets closer to the deeper dimension of the corruption. In microcosm, it exposes the process of how right wing billionaires buy their brand of justice.

On January 25, 2018, the Koch brothers flew Thomas to their annual member donor summit on a Gulfstream G-200 jet. We still don’t know who paid for that trip.The event is a weekend of strategizing and high dollar fundraising.

The Kochs used Thomas as a fundraising draw. Donors were promised that if they paid one hundred thousand dollars or more, they will be able to attend an elite event where Thomas would speak. Thomas never reported the Koch event or the travel on his annual federal financial disclosure form.

Charles Koch (the remaining live Koch brother) is one of the 25 richest people in the world. He is worth an estimated $64 billion. His network has raised a fortune from other wealthy donors used to support a variety of ultra-conservative causes. The network raised over $700 million in 2021. More recent data is not yet available.

You might call this money the Billionaire Defense Fund. Clearly some of the money has been directed at Thomas and winning him over as Thomas has a weakness for the luxury lifestyle. This is the pay to play, purchasing Justice Thomas. The gifts are not a straight-up bribe but they are influencing.

Koch met Thomas at Bohemian Grove, a secretive annual all-men’s retreat held in Northern California. Thomas has been a frequent attendee and he met Koch there. Bohemian Grove is like a fraternity party for super-rich and powerful people. Over the last two decades, Thomas often stayed with the Kochs and Harlan Crow.

There are at least three ways Thomas violated the law and has been compromised ethically. As explained by law professor Richard Painter, Thomas violated financial disclosure rules; he violated laws prohibiting judges from participating in partisan fundraising; and he hasn’t recused from cases where he should have. Chief Justice Roberts has been looking the other way but these violations are so egregious that Roberts should at least demand Thomas recuse himself from the upcoming case, Loper Bright v Raimondo.

The case raises the matter of Chevron deference. Without getting too into the legal weeds, the 1984 Chevron v NRDC case gave wide deference to federal administrative agencies in how agencies’ laws, rules and regulations are interpreted. Thomas himself was a very strong supporter of Chevron deference, writing an opinion in 2005 defending the power of administrative agencies.

Very strangely for someone who is almost always ideologically unmovable, Thomas’s view has now flipped. After hanging out with the Kochs who see Chevron deference as an abomination, Thomas completely reversed course. He is now on record opposing deference to administrative agencies just like his corporate benefactors. Koch network staff attorneys are asking the Court to reverse this almost 40 year old precedent.

A major part of the Koch agenda is what is often called “deconstructing the administrative state”. The Koch network has been dedicated to reining in and limiting the power of federal agencies to issue regulations in many areas of the law.

Whether it is the environment, worker rights, consumer rights or worker health and safety, the Koch network wants to obliterate federal regulation. They want no entity to interfere with their corporate profit-making agenda, their prerogative to pollute, exploit workers or push out green house gases as much as they like.

Based on his behavior, Thomas’s impartiality is in serious question. And Loper Bright is not the only case where a justice should be recusing. Similar questions are raised for Justice Alito in a tax case where one of the lawyers involved, David Rivkin, had interviewed him for a Wall Street Journal opinion piece. Rivkin and Alito are pals. Rivkin is also counsel to Leonard Leo of Federalist Society fame on the matter of Leo’s role in facilitating gifts of free transportation and lodging Alito accepted from Paul Singer.

Leonard Leo is the man behind the curtain in understanding what has happened to the Supreme Court. As the key Federalist Society operative, he greased the relationship between Thomas, the Kochs and Crow. Leo, who is close to Thomas, actually arranged Thomas’s appearances at the Koch donor events.

The deeper dimension in this story is how it illustrates the scheme by right wing billionaires to capture the Supreme Court. No one has spoken about this more forcefully than Rhode Island Senator Sheldon Whitehouse. Because the radical right could not achieve their goals openly, they resort to unlimited dark money donations, phony front groups, and a veil of secrecy to hide how the Court has been captured.

Their agenda is climate denialist, pro-elite, deregulatory and anti-democracy.

On the positive, the Senate Judiciary Committee is now investigating the allegations that Supreme Court justices accepted and failed to disclose lavish gifts received from their billionaire benefactors. The Senate Finance Committee is also investigating Federal tax compliance with the undisclosed gifts.

There are also increasing calls for justices with conflicts of interest to recuse themselves from cases where justices have ties to billionaires with business before the Court. More than 40 U.S. watchdog groups have called on Chief Justice Roberts to force Thomas and Alito to recuse where they are conflicted. 50 House Democrats wrote Justice Thomas an open letter asking him to recuse from Loper Bright.

It would appear that Thomas and Alito are immune to shame. They have moved beyond the appearance of impropriety to something worse. The Court’s legitimacy problem is anything but over.