Stench, p.7
Stench, page 7
The full force of the Federalist Society came to be felt first in the administration of George H. W. Bush, where those associated with the Federalist Society took up key positions in the White House, the Justice Department, and federal agencies, allowing not only close coordination across the executive branch but also a successful smear campaign that put Clarence Thomas on the high court in 1991. According to one scholar, “every single federal judge appointed in the two Bush presidencies was either a society member or approved by members.” One email from inside the Bush White House identified Leo as the “cash machine” behind the operation.
The society had lawyer chapters in every major city and student chapters in every accredited law school. Over time, the work of the society reached far beyond networking and credentialing. The Federalist Society and their backers picked the judges. They also funded academic centers where bought-and-paid-for scholars developed fringe theories later to be adopted by donor-approved judges. They backed litigants to bring cases that could advance their agendas. And they supported an army of right-wing organizations posing as public interest groups that routinely filed amicus curiae (friend of the court) briefs in the cases to signal to the judges how to rule.
It was a veritable conveyor belt of underhanded tactics that, taken in sum, equaled full court control. Amanda Hollis-Brusky, in a 2015 book Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, found that “focusing on key recent decisions on issues like campaign finance, gun control and state sovereignty, as many as two dozen people with Federalist Society connections played some role in crafting the arguments, arguing the cases, clerking for the judges or issuing the rulings.”
Here’s how it works in practice. One primary goal of the big funders is hobbling the power of government agencies that regulate their ability to pollute. That’s what the Thomas court did in narrowing the definition of “water” for purposes of EPA regulation involving the Clean Water Act to exclude wetlands. In that case, among the dozens of groups filing amicus curiae briefs were several—Cato Institute, Claremont Institute, Liberty Justice Center, and the Americans for Prosperity Foundation—funded anonymously by pro-pollution donors to the Leo network. When the court struck down gun restrictions in New York State on the originalist grounds that there was “no tradition” of such regulations in U.S. history, among the amicus curiae were the Cato Institute (again), the Buckeye Institute, the Rutherford Institute, the Claremont Institute (again), and the Independent Women’s Law Center. In a campaign finance case, the right-wing majority rejected California’s efforts to bring transparency to contributors, in effect creating a new right to dark money. In that case, the amicus curiae were, among others, the Buckeye Institute (again), the Pacific Research Center, Cato Institute (again), Judicial Watch, and Liberty Justice Center (again)—all funded anonymously. You get the idea: These front groups are financed to create the appearance of independence, when in fact they are manufactured and all beholden to the same group of funders, whose interests before the courts are hidden in the scheme. The briefs, often relying on false facts and twisted history, are used to signal to the amenable judges the arguments the big donors want advanced and the outcomes they favor.
Wash, rinse, repeat. Often the front groups find and fund the plaintiffs in the suits as well. Whether weakening organized labor, striking down student debt relief, or gutting consumer protections, the same rigged system comes into play.
* * *
If Clarence Thomas never became rich stripping away other people’s rights, the same cannot be said of Leonard Leo, whom Thomas has called both a “mentor” and “the third most powerful person in the country.” Using the credibility of the Federalist Society platform, Leo constructed a web of bare-knuckle political nonprofits to do work the Federalist Society could not do under IRS rules governing charities. The web of front groups was designed in such a way as to conceal the group’s activities, tactics, and donors and their interests—to defeat transparency. Foremost among these is the Judicial Crisis Network, essentially the PR arm of the Federalist Society, which takes in tens of millions of dollars from wealthy conservatives, including, prominently, the Koch brothers network, right-wing donors who coordinate their giving, to campaign for Federalist Society judges, with most of the funding hidden from public view. The group was conceived in 2005 at a private Leo-hosted dinner celebrating George W. Bush’s reelection. The guests included Antonin Scalia and the California donor Robin Arkley II, the “foreclosure king” of California, who acquires distressed mortgages then forecloses on the owners. According to Sheldon Whitehouse, who has studied the structure of Leo’s opaque empire, it has “all the earmarks of a covert operation of the sort run by foreign countries in the intelligence arena, but this is run in America, by Americans, against Americans.”
Leo is also a member of the shadowy Council for National Policy, a tight network of social and religious conservatives, alongside his longtime friend Ginni Thomas. The CNP is a kind of who’s who directorate of the conservative movement. In 2016, the CNP threw its considerable weight behind Donald Trump’s candidacy in exchange for policy concessions and “its choice of federal judges,” according to a report by Anne Nelson in The Washington Spectator. “Ginni Thomas was known as the not-so-secret weapon of CNP and its allies,” the report continued. Before the 2020 election, CNP developed plans to overturn the election if Trump lost. The group was a key player in the January 6 insurrection, with its president, William L. Walton, signing a letter stating, “There is no doubt Donald J. Trump is the lawful winner of the presidential election.” As we’ll see later, Ginni Thomas was a leading cog in the insurrectionist wheel.
Leo liked to say his judicial advocacy tactics were a mirror of those used by left-wing groups in the campaign to derail Robert Bork’s Supreme Court nomination, but this was disingenuous. In fact, the scale of Leo’s efforts was utterly without precedent. In 2005 and 2006, JCN took in hundreds of thousands of dollars to run slick confirmation campaigns supporting John Roberts and Samuel Alito, including paid advertisements, telemarketing, polling, and mobilization of conservative grassroots groups. A decade later, with Donald Trump running on an antiabortion platform and promising to appoint Federalist-approved MAGA judges, the special interest funds available to Leo’s network ballooned to an unheard-of $250 million in dark money. All together from 2014 through 2022, by my count, Leo’s network raised $763 million on its court-packing efforts. Given that big business stood to gain billions from favorable court rulings, the investment was a bargain.
With increased funding, Leo formed an unholy loop: Leo’s network funded challenges to laws he opposed, such as President Biden’s student loan forgiveness program and affirmative action requirements, and also funneled cash to antigay groups like the Alliance Defending Freedom to challenge antidiscrimination laws. When the cases reached Leo’s handpicked judges, he got the political results he and his backers wanted from the compromised judges. (Leo’s groups also pushed voter suppression laws in the states in a direct assault on American democracy through a group with the creepy Orwellian name Honest Elections Project. Of course, cheating to elect Republican presidents and senators was an essential element in the court-packing scheme.)
As Leo’s coffers filled, he formed a for-profit consulting firm, CRC Advisors, and his nonprofits hired the consulting firm for Leo’s services in a circular profit scheme. According to Politico, $43 million flowed from Leo’s nonprofits into his pockets in just two years. The extraordinary sum attracted the attention of watchdog groups who raised questions about whether Leo was bilking the nonprofits for work he never did. He has also come under investigation by the D.C. attorney general for potentially violating IRS charity rules on personal enrichment. “Since 2016,” Politico reported, “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.” (The largesse also created dissension with the Federalist Society itself, according to a society-watcher. Federalist Society president Eugene Meyer makes about $650,000 a year, not bad for nonprofit work, but nothing like the sums siphoned off by Leo.)
Leo’s close friend Ginni Thomas was in on the shocking grift. Just days prior to the publishing of the 2010 case Citizens United v. Federal Election Commission—which by a 5–4 vote with her husband in the majority loosened federal regulation on political spending and benefited nonprofit groups with anonymous donors—Ginni Thomas filed paperwork to form such a new dark-money group. It was inspired by the Tea Party uprising against President Obama and could take advantage of the new ruling, in which her husband would be a deciding vote. Harlan Crow, the billionaire who gave the Thomases luxury travel and other pricey gifts, gave Ginni Thomas $500,000 in seed money for the new venture she called Liberty Central, whose goal was to tank Obama’s health care agenda. Obama was “hard left,” leading the nation to “tyranny,” according to Thomas. Leo joined the board as the group’s moneyman.
After a kerfuffle in the press about the propriety of a Supreme Court justice’s wife running a right-wing lobby shop funded by anonymous donors that would advocate for an issue that inevitably would come before the court, Ginni quit Liberty Central. But only days later she set up a firm, Liberty Consulting, to quietly continue her work. This time Thomas tried to present herself as a bridge between the traditional conservative movement and the Tea Party. In an email sent to the offices of freshmen members who had been elected in the GOP wave of 2010, Ginni wrote, “As self-appointed Ambassador to the Freshmen class and an Ambassador to the Tea Party Movement, I am devoted to your individual and corporate success to restore the greatness of this nation and am happy to find ways to be helpful and connect you with resources! I am also committed to the new citizen activists get more and more effective at wielding their power and influence for good, for restoring limited constitutional government, free enterprise, individual liberty and national security!” Along with Ginni’s email was a cover note from an assistant, reported here exclusively, who explained, “Ginni knows all the good guys in DC—established conservatives and resources to help connect and ensure success on your priority projects…. Ginni has become a great friend of the tea party movement in many areas of the country, as well as can find ways to increase your reputation amongst the right conservatives and beyond and inside the beltway.”
Liberty Consulting was propped up financially by Leonard Leo, according to a suspect arrangement unearthed by Politico. The money flowed to Ginni from yet another Leo-controlled entity called the Judicial Education Project, funded by a secret donor. It’s unclear what actual work Ginni did for the nonprofit, whose work is supposed to be charitable in nature, or whether in fact she did any work at all. With Ginni on the payroll, JEP filed amicus briefs with the Supreme Court supporting one side or the other in hot-button cases, offering legal arguments, and tipping off judges how to rule, for example arguing that provisions of the Obama health care law were unconstitutional, a position adopted by Clarence Thomas in a dissent in the case. JEP also filed a brief contending that the contraception health care requirements of the Obama health law infringed on the religious freedom of the owners of the Hobby Lobby stores. The court adopted JEP’s position with Thomas in the majority—an extraordinary conflict of interest that Thomas blithely and typically ignored.
Moving money around and through his nonprofits like a shell game to reward his friends seems to be a Leo pastime. In another shady transaction, Leo directed Trump pollster Kellyanne Conway to bill the JEP and use the money to pay Ginni. Leo told Conway that he wanted her to “give Ginni another 25K,” The Washington Post reported. Leo underlined that the paperwork should have “No mention of Ginni—of course.” Ultimately more than 100K reached Ginni—and her husband—through this pass-through. Undeterred, Ginni Thomas found other venues for antagonizing the Obama administration. She joined the Conservative Action Project to try to derail health care reform and, though she was the wife of a sitting justice, to dirty up Obama’s judicial nominees. In 2021, she signed a CAP letter demanding the House Republican Conference remove Liz Cheney and Adam Kinzinger from the conference for their involvement with the “supposedly bipartisan” January 6 House committee investigation. Of course, Ginni herself would later be brought in to testify to Congress about her own election denial activities, but much more about that later.
The full scope of Leo’s ambitions is clear. More than simply a political operation to pack the courts, he sits atop an industry that in effect took over control of the courts for special interest donors. Originalist judges are selected with the Federalist Society imprimatur. Groups are funded to bring suits and file amicus briefs before the court, pushing Leo’s agenda and signaling to the judges and clerks the desired outcome. And Leo’s donors profit from the many Thomas Court decisions that enrich big business. Buying off Clarence and Ginni Thomas has been chump change in the overall scheme.
Chapter 4
April 1986: When Clarence Met Ginni
They met at an affirmative action conference in New York. Clarence Thomas, at the time EEOC chairman in the Reagan administration, had quickly established himself as a lightning rod for criticism, and he was a featured speaker at the April 1986 conference. He took an openly combative approach. “I have watched this debate over quotas, for example, rage for the past four years,” Thomas said. “What do you do with people who not only have not been educated for two or three generations, but who can’t be educated at this point?”
Thomas, a Missouri assistant attorney general from 1974 to 1977, had earned the notice of movement conservatives in Washington who recognized how useful he could be even before Reagan appointed him to a job in the Department of Education in 1981, when Thomas was working as a legislative assistant for the Senate Commerce Committee. Conservative Digest publisher Richard Viguerie lauded Thomas in a December 1980 cover essay in the Los Angeles Times Sunday Opinion section as part of “a new breed of Blacks…who recognize the destructive cycle of dependency fostered by the liberal program.” At a “black alternatives” conference in San Francisco that month organized by the right-wing Institute for Contemporary Studies Thomas had blurted out, “It’s really kind of good to be here because someone might agree with me for a change.” Thomas’s appointment to the top civil rights job in the Education Department that May had civil rights groups “concerned about Thomas,” as the St. Louis Post-Dispatch put it, “because of his association with a group of conservative blacks who oppose busing and minority-hiring standards.”
Among the participants at that April 1986 conference in New York was Virginia Lamp, a labor lawyer for the U.S. Chamber of Commerce who had also established herself as controversial and outspoken. Midge Decter, a leading neoconservative writer and antifeminist, introduced Thomas and Lamp, and the two ended up sharing a cab to the airport. Lamp at the time was in a long-distance relationship, and Thomas, divorced from his first wife and soured by some dating experiences, told friends he planned at the time to remain single.
As the cab made its way toward the airport, Thomas at one point reached into his wallet and pulled out a slip of paper, as he tells the story in My Grandfather’s Son. Lamp asked the EEOC chairman how he handled being a target of public criticism. Thomas produced a prayer he said he recited daily from St. Francis of Assisi, and the two discussed their shared religious faith. Lamp offered to set Thomas up with a Black woman at the Chamber of Commerce, but Thomas declined the offer. “I thanked her but explained I wasn’t interested in dating,” he writes. Exiting the cab, Thomas suggested they “do lunch,” but did not follow up.
The two had a lot in common beyond religious faith, abundant self-confidence, and a sense of mission; they also shared a similar ideological outlook. Four years earlier, the Supreme Court ruling in County of Washington v. Gunther had endorsed the concept of comparable worth, or equal pay for work of equal value. The EEOC under Clarence Thomas had stayed quiet on the issue, but finally in a June 1985 press conference, Thomas announced that the commission had taken a stand in a case involving an Illinois housing authority. As the Associated Press reported, “the commission on a 5–0 vote rejected the use of comparable worth as a means of determining job discrimination. Specifically, the panel said the theory of comparable worth is not recognized under Title VII of the Civil Rights Act of 1964.”
The AP quoted Thomas offering this defense of the controversial move: “There was no allegation—and no evidence—that any barriers existed to prevent males and females from moving beyond job categories…. We found no evidence that the pay difference was due to sex, and therefore we could not infer that sex was a factor in wage setting.”
This was a dodge. The numbers were stark. At the Illinois housing authority involved in the case, administrative staff was 85 percent female, and 88 percent of the maintenance staff was male. Administrative staff was paid less.
The same AP article quoted U.S. Chamber of Commerce labor relations attorney Virginia Lamp cheering on the EEOC position, calling comparable worth “the Trojan Horse of the ’80s” and adding: “Rather than using our civil rights laws to identify and address discrimination as it exists in the workplace, comparable worth advocates want to label a social phenomenon—the fact women on average make less than men on average—as ‘discrimination’ and then use our civil rights laws for purposes for which they were never intended.”
