Part 4 of a 10-part Series:

Federalists and Dominionists Take Over the Courts

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

Former U.S. Supreme Court Justice Anthony Kennedy in Citizens United v FEC

Most of us are no longer surprised by the plutocrat-friendly decisions emanating from the U.S. Supreme Court. Oligarchs like the Kochs have done their part to fulfill Powell’s mandate, sending massive funding to established think tanks like the Heritage Foundation and CATO as well as their own Americans for Prosperity and Freedomworks. The Koch empire funds a huge and interconnected network of right wing PACS, policy think tanks, lobbying groups and media outlets such that it has been given the name “Kochtopus.”   

It wasn’t enough to own the Congress who wrote the laws and flood the policy agenda with lobbyists representing plutocrats and the corporatocracy, but they had to also own (or at least influence) the place where the laws were interpreted—the Supreme Court. During the civil rights era, the federal courts were in the forefront of expanding rights—especially the rights of the previously marginalized such as workers, women, and people of color. Attorneys who represented marginalized clients were encouraged to file their cases in federal courts, which (at that time) tended to look favorably on these new rights.

However, sometime beginning in the 1980s and throughout the 1990s, federal judges became increasingly hostile to plaintiffs with grievances against business. Attorneys representing regular working people injured by defective products, environmental toxins, and employment discrimination were now likely to be better off taking these cases to state courts—notwithstanding broader definitions and expanded damage awards afforded under federal statutes. Some federal judges were openly hostile to these cases/clients. Defendant corporations—represented by expensive “Big Law” firms with armies of lawyers—found ways to have these cases “removed” to federal courts. A cottage-industry sprang up in legal circles on “removal” actions.

In 1976, the Law and Economics Center was established at George Mason University.  The Law and Economics Center is a corporate-funded think tank that sponsored an all-expense paid trip at a Florida resort for judges to “learn” from academic economists. Here federal judges were imbued with the concept that justice always comes at a cost—cost which the judges were required to consider (although there is nothing about this in the constitution or anywhere else) in their decisions. Even former Supreme Court Justice Ruth Bader Ginsburg said she appreciated a lesson on regression analysis. This particular program was shut down in 1999 due to the fact that many of its corporate funders appeared before many of the judges and thus created an all-too-obvious conflict of interest. Yet, a recent study that cross-referenced federal judicial decisions (some 380,000 civil cases and 1 million criminal sentences) found a distinct correlation between judges who attended the Law and Economics training and an “anti-justice, pro-cost” bias. 

Following the Powell memo blueprint, the Federalist Society was founded by a group of students at elite law schools (Harvard, Yale, and University of Chicago) in 1982. Although it purports to stand for a “textualist” and “originalist” interpretation of the U.S. Constitution, its main goal was to promote judges in the Federal judiciary who were anti-regulation, anti-environment, and anti-union. According to the American Bar Association, there are over 1.3 million lawyers in the United States—a number which has been relatively consistent over the past decade.  The Federalist Society estimates that it has about 60,000 members, which includes law students and academics as well as practicing lawyers. But even assuming all 60,000 members were admitted to law practice, this would mean they comprise only 4.6% of practicing attorneys. Yet today six Federalists sit on the U.S Supreme Court. So…the outsize influence of Federalists in the U.S. Court system can be analogized to the outsized influence of big money interests in our politics. And…surprise!…both are interconnected!

It is not just the über-right wing Federalist Society that feeds the pipeline to the Federal judiciary, but a small core of elite law firms. Two of the most well-known of these are Jones Day (with 2,513 attorneys) and Gibson, Dunn & Crutcher (with over 1,600 attorneys). These are large, globe-spanning, corporate-focused law firms who generally recruit only from elite law schools (who themselves tend to recruit from elite or upper-middle-class families and alums). They are known for defending oil companies (most notably, Chevron), as well as corporations generally. These law firms disproportionately feed both the U.S. Supreme Court (former Justice Scalia) and the federal judiciary as well as Presidential cabinet and other high-level positions. Former Gibson, Dunn and Crutcher attorneys include the currently (in)famous Judge Aileen Cannon (in the Mar-A-Lago documents case) as well as current President Biden nominee Jennifer Reardon (who defended Chevron during her time at the firm) for the Southern District of New York—suggesting that elite capture of the judiciary has been bipartisan.

The conservative right has traditionally been the champion of states’ rights, and the essence of federalism is that states should serve as “laboratories of democracy.” That is, the federal government sets the “floor” of mandatory legal protections, but states are free to expand upon them. Working people found out that they were able to make their voices heard in state legislatures, and so some states raised the minimum wage above the federal mandate, passed more stringent environmental protections, and expanded ways and times for citizens to vote. But now we are seeing a retreat from the absolutist view of states rights. States rights are to be defended when they serve to control the “little people,” (Blacks, women, workers), but can be infringed when they seek to expand or protect the same.

So long as the will of working people was able to be expressed anywhere, owning Congress, the Supreme Court, and exerting outsized influence on both major parties and presidential elections was not sufficient to meet the elite’s goal of total domination. The American Legislative Exchange Council (ALEC) was founded in 1973 for the purpose of drafting “model legislation” to introduce in state legislatures. Today, ALEC is funded primarily by corporate interests and right-wing oligarchs. ALEC-sponsored legislation focused primarily on reducing regulations and taxes on corporations, but it also worked to make voter registration more stringent, weaken labor unions, and pass state “right to work” laws. Unions are viewed as a double threat, because they not only work to insure a more equitable division of collective production between capital and labor, unions also provide a structure that facilitates civic participation among working people, along with pathways to influence larger policies that affect workers.