PREPARED BY:

Senator Debbie Stabenow, DPCC Chairwoman

Senator Chuck Schumer, Senate Democratic Leader

Senator Sheldon Whitehouse 

PREPARED BY:

Senator Debbie Stabenow, DPCC Chairwoman

Senator Chuck Schumer, Senate Democratic Leader

Senator Sheldon Whitehouse 

CAPTURED

COURTS

The GOP’s Big Money Assault 

On The Constitution, Our 

Independent Judiciary, And 

The Rule of Law

MAY 2020
TABLE OF CONTENTS

EXECUTIVE SUMMARY

RIGGING THE GAME: HOW THE “CONSERVATIVE LEGAL MOVEMENT” HAS 

REWRITTEN FEDERAL LAW TO FAVOR THE RICH AND POWERFUL

10 Playing the Long Game: The Right’s 50-Year Project to Capture the Courts

11 Growth of the Conservative Legal Movement

12 The New Judicial Activism

13 A Right-Wing Rout at the Supreme Court

FOLLOW THE MONEY: THE FEDERALIST SOCIETY, LEONARD LEO, AND HOW 

SPECIAL-INTEREST MONEY DOMINATES OUR COURTS

19 Rise of the Federalist Society

20 The Federalist Society Chooses Our Judges

23 Shadow Justice: Leonard Leo and the $250 Million Dark Money Judicial 

 Influence Machine

24 Behind the Veil: Understanding Leo’s Secret Influence Machine

37 Judicial Lobbying: Special Interest “Friends of the Court”

ADVISE AND CAPITULATE: HOW MITCH MCCONNELL’S BROKEN SENATE 

CONFIRMATION PROCESS HELPS REPUBLICANS AND THE

BIG-MONEY DONORS BEHIND THEM

40 Betraying the Vision of Our Founders

44 Converting the Senate into a Legislative Graveyard

CONCLUSION

3

8

18

39

46
EXECUTIVE SUMMARY

Under the Trump Administration, the Mitch McConnell-led Senate has produced few 

significant legislative accomplishments. Instead, it has prioritized packing the judiciary 

with far-right extremists, who then enjoy life tenure as federal judges. Working handin-hand with the administration and anonymously-funded outside groups, the Senate 

has confirmed 200 new life-tenured federal judges to aggressively remake the 

federal courts and rewrite the Constitution. Most of these judges were chosen 

not for their qualifications or experience—which are often lacking—but for their 

demonstrated allegiance to Republican Party political goals. These judges have already 

begun rolling back the clock on civil rights, consumer protections, and the rights of 

ordinary Americans, reliably putting a thumb on the scale in favor of corporate and 

Republican political interests. From the Supreme Court on down, the special interests 

responsible for these judges’ selection and confirmation are effectively capturing the 

judicial branch, packing our courts with politicians in robes.

3
With a captured judiciary, the Republican Party can do its donors’ dirty work through 

the courts without fear of electoral consequences. This is anti-democratic and 

fundamentally un-American. Indeed, it is nothing less than a crisis for American 

democracy, which depends on a fair and impartial judiciary.

Behind this capture scheme lie hundreds of millions of dollars in anonymous spending, 

funneled through an elaborate web of front groups. It is impossible to understand this 

capture scheme without understanding who is spending so much money to capture 

America’s courts—and how and why.

How Did We Get Here?

Republican Party efforts to rig our nation’s courts began long before President Trump 

came into office.

By the early 1970s, the emergence of popular, bipartisan public safety and welfare 

programs and civil rights protections had alarmed elements of corporate America and 

the conservative far-right. In response, future Supreme Court Justice Lewis Powell 

wrote the now-infamous “Powell Memo,” which painted the business community 

as under attack by academics, the media, liberal politicians, and other progressives.1

Powell urged corporate America to mobilize a counterattack.

The “conservative legal movement” became a key part of this reactionary 

counterattack. Constructed around novel theories of constitutional interpretation, this 

movement was at its core a political project to combat alleged “judicial activism” by 

allegedly left-leaning judges. In fact, the movement worked to ensure that corporate 

America, the ultra-rich, and the Republican Party would succeed in the courts.

The Federalist Society

In the 1980s, the Federalist Society for Law and Public 

Policy Studies became the institutional hub of this 

reactionary counterrevolution. Established in 1982, the 

Federalist Society “proclaimed the virtues of individual 

freedom and limited government”2—code words for its 

supporters’ anti-government, anti-regulatory agenda.

Today, the Federalist Society officially claims no role in 

politics, policy, or judicial nominations,3 but the facts 

show that it is the nerve center for a complex and 

massively funded GOP apparatus designed to rewrite 

the law to suit the narrow-minded political orthodoxy The Federalist Society Logo

4
of the Federalist Society’s backers. President Trump has acknowledged that the 

Federalist Society has “picked” his judges4: to date, fully 86% of Trump’s nominees to 

the powerful federal appellate courts have been Federalist Society members.

Chief Justice Roberts’ Right-Wing Rout 

Chief Justice John Roberts has said there is no such thing as “Trump judges” or 

“Obama judges”—that “[w]hat we have is an extraordinary group of dedicated judges 

doing their level best to do equal right to those appearing before them.”5 That sounds 

nice, but it doesn’t hold up, given the Roberts Court’s stunning record of partisan 

judicial activism.

Under Chief Justice Roberts, the Court’s Republican-appointed five-justice majority 

handed down 80 partisan 5-4 decisions—joined by no Democratic appointee—that 

delivered wins to the Republican Party and the big corporate interests behind it.6

These decisions have had (and will have) an enduring impact on voting rights, labor 

protections, environmental protections, civil rights, gun safety, and reproductive rights. 

The most flagrant of these partisan decisions—Shelby County v. Holder and Citizens 

United v. Federal Election Commission—have rigged the very rules of our democracy 

for Republican Party interests, resulting in voter suppression and corruption of our 

government through unlimited special-interest political spending. 

Those notorious partisan decisions are just the tip of the iceberg—there are dozens 

and dozens more. By bare partisan majorities in these 80 decisions, Republican 

justices have greenlighted GOP gerrymandering and hobbled America’s unions. 

They have slammed courthouse doors shut for workers and consumers, and gutted 

public safety regulations that kept our air and water clean. They have weaponized the 

Second Amendment to stymie sensible gun safety regulations, and curtailed access to 

reproductive healthcare.

More often than not, the Republican justices in these 80 decisions abandoned 

traditionally “conservative” principles like judicial restraint, respect for precedent, 

and even “originalism.” As it turns out, these were doctrines of convenience, useful 

until they got in the way of a desired political result. For the “Roberts Five”, they are 

summoned, or not, depending on the Republican Party’s larger political goals.

This is not calling “balls and strikes.”

5
Follow the Money

Republicans and their corporate and billionaire 

backers have used an outside-inside strategy to 

capture our courts: ultra-wealthy funders on the 

outside fund the operation, and politicians on the 

inside implement it. The Right’s court-capture 

machinery is fueled by hundreds of millions in 

special-interest dollars, the sources of which are never 

fully disclosed to the public.

At the heart of this network is Leonard Leo.  Mr. Leo, 

who co-chairs the Federalist Society and was until recently its well-paid Executive 

Vice President, has had unfettered access to President Trump as he makes judicial 

appointments that shape our country. At the same time, Leo manages and 

coordinates a secretive network of more than two dozen right-wing nonprofits that 

raised over $250 million between 2014 and 2017 alone—money targeted at efforts to 

support “conservative” policies and judges.7 The true sources of that money—and the 

true interests of the anonymous donors—remain unknown to the public.

What is all this money used for? It funds a complex network of think tanks, law school 

centers, policy front groups, political campaign arms, and public relations shops, 

all focused on shaping the composition of the courts and the rulings they make. 

Deploying hundreds of millions of dollars from big-money donors like the Koch 

brothers and U.S. Chamber of Commerce, this network picks judicial nominees, wages 

media campaigns for their confirmation, props up the politicians that vote for them 

(while attacking those that don’t), develops legal doctrines for them to adopt, then tees 

up cases for them to rule on—delivering big returns for the donors.

Shredding Senate Norms

Mitch McConnell’s inside game has been just as important as the network’s outside 

funding. Under his leadership, Senate Republicans have taken a wrecking ball to a 

century of bipartisan Senate norms. After McConnell became the Senate Majority 

Leader in January 2015, he obstructed President Obama’s attempts to fill vacancies on 

the federal courts, leaving over 100 seats—including a stolen Supreme Court 

seat—for the next president to fill. Once a Republican president took over, the 

Republican majority then upended Senate rules to confirm President Trump’s 

judicial nominees at a pace never before seen in the Senate. On the whole, these 

nominees have been notable for their inexperience, youth, and demonstrated partisan 

extremism. Rather than provide meaningful advice and consent on Trump’s judicial 

nominees, McConnell’s GOP Senate has been nothing more than a conveyor belt. It is 

unprecedented. But it is also a signal of just how central courts are to the Republican 

Party’s reactionary political agenda.

6
Why Does It Matter?

For McConnell-led Senate Republicans, confirming Trump judges has become the 

primary purpose of the Senate. The Democratic majority in the House has passed 

over 350 bills that have yet to even be considered by the Senate. Nearly 90% of 

these bills received bipartisan support and provide solutions that the voting public 

overwhelmingly approves of, such as lowering health care costs, combating the climate 

crisis, and reducing corruption in politics. Instead of passing legislation to help the 

American people, Mitch McConnell has chosen to bury those bills in his legislative 

graveyard.

There is a lot we have yet to learn about the special-interest “dark money” that fuels 

the complex court-packing scheme and its overlap with the funding behind the 

Republican Party. What is clear is that this effort has come at a tremendous cost for 

the American people and our democratic institutions.

Over the coming months, Democrats in the Senate will shed light on the corruption 

and conflicts of interest now spreading around the Trump judiciary. As part of future 

efforts, we will show the real-world impact of the courts’ activist decisions on issues 

ranging from healthcare and reproductive rights to voting rights and the climate. And 

we will propose legislative reforms to clean up this mess. 

This report looks behind the curtain of the GOP’s long campaign of judicial capture, 

into the fundamental threat it poses to the rule of law and American democracy.

Trump announces Judge Neil M. Gorsuch as his nominee to 

the U.S. Supreme Court

7
RIGGING THE GAME:

How the “Conservative Legal Movement”

Has Rewritten Federal Law to Favor the

Rich and Powerful
During Chief Justice Roberts’s confirmation hearing, he 

famously assured the Senate that as a justice his role would 

be to do nothing more than “call balls and strikes,” and 

that judges must be “bound by rules and precedents.”8

But as one sitting federal judge recently observed, that 

pledge from Chief Justice Roberts “was a masterpiece of 

disingenuousness.”9

Rather than “call balls and strikes,” that judge observed, 

“[t]he Court’s hard right majority is actively participating in 

undermining American democracy. Indeed, the Roberts 

Court has contributed to ensuring that the political system in 

the United States pays little attention to ordinary Americans 

and responds only to the wishes of a relatively small number 

of powerful corporations and individuals.” Earlier this year, 

another judge offered a similar rebuke of the Court in a letter 

of resignation from the Supreme Court Bar. He wrote to Chief 

Justice Roberts directly: “I believe that the Court majority, 

under your leadership, has become little more than a 

result-oriented extension of the right wing of the Republican 

Party.”10 

It is striking to hear these stinging critiques of the Supreme 

Court from fellow judges. But there’s no denying their truth: 

wielding bare 5-4 partisan majorities, the Roberts Court has 

undone decades of precedent and bent the law toward the 

interests of the rich and powerful. In doing so, the “Roberts 

Five” eagerly overturned any decision or principle that stood 

in the way of their goals. In key cases, they even engaged in 

bizarre, non-factual fact-finding, well outside the appellate 

role.11

9

What does GOP court-packing mean for you?

Thanks to the Roberts Court:

• Voters across the country wait in line for hours to vote

• Special interests flood our airways with political ads

• Workers have discrimination cases thrown out of court

• Communities can’t regulate gun violence

• Polluters can pollute our air and water without consequence

• Access to healthcare, including protections for pre-existing 

conditions, remains under attack

Democrats in the Senate will be documenting these issues and 

more over the coming months.
Now, with the addition of two hundred life-tenured Trump judges—more ideologically 

extreme and less experienced than any crop of judges in our nation’s history—our 

federal courts risk becoming little more than an arm of the Republican Party’s big 

donors. 

It has become abundantly clear in the Roberts era that the idea that Federalist 

Society-approved federal judges are umpires in an honest game with rules that are fair 

to all Americans regardless of wealth, race, gender, or sexual orientation is a dangerous 

fiction. The reality is that in cases with political implications, these judges too often 

behave as politicians in robes, inflicting lasting harm to basic principles on which our 

country was founded. 

This has not come about by happenstance. It is the product of a long-term strategy to 

influence judicial selections and outcomes, which is well-funded by millions of dollars in 

anonymous, special-interest money. 

Playing the Long Game: The Right’s 50-Year Project to Capture the Courts

Lewis Powell, Edwin Meese, and the Origins of the Republican Judicial Takeover

The right-wing plan to reshape our nation’s courts finds its roots in the 1960s and 1970s, 

amid a deep sense of corporate grievance and conservative racial resentment.

While the post-World War II economic boom broadened the middle class and allowed 

American business interests to prosper, many Americans still labored in unsafe and 

unsanitary workplaces, or suffered exposure to toxic consumer products and polluted 

air and water.

Against that backdrop, Americans mobilized to demand a government that would 

protect them from corporate 

excesses. The result was the bipartisan 

establishment of public safety and 

welfare programs and agencies that 

protect us to this day—such as President 

Johnson’s “Great Society” programs and 

the Environmental Protection Agency, 

established by President Nixon.

In certain corporate circles, these 

developments were met with alarm. In 

1971, at the request of the U.S. Chamber 

of Commerce—which would grow to 

become, in the words of its president, 

“the biggest gorilla” in Washington12— a 

corporate lawyer in Virginia wrote a 

confidential memo titled “Attack on 

American Free Enterprise System.” That lawyer was future Supreme Court Justice 

Lewis Powell.

The 1971 Powell Memo

10
The Powell Memo sought to galvanize the business community toward political 

action. It announced that the “American economic system is under broad attack” 

from academics, the media, liberal politicians, and other progressives. In the wake 

of watershed civil rights advancements like the Court’s ruling in Brown v. Board of 

Education and Congress’s passage of the Civil Rights Act of 1964, Powell claimed that 

“we have seen the civil rights movement insist on re-writing many of the textbooks in 

our universities and schools.” Against the popular force of 

the anti-war, civil rights, and environmental movements, 

Powell argued:

[I]ndependent and uncoordinated activity by 

individual corporations, as important as this is, will 

not be sufficient. Strength lies in organization, in 

careful long-range planning and implementation, 

in consistency of action over an indefinite period 

of years, in the scale of financing available only 

through joint effort, and in the political power 

available only through united action and national 

organizations.

Powell urged the business community to mobilize its 

counterattack through “a broader and more vigorous role 

in the political arena.” This meant corporate lobbying 

in Congress.13 And lobby corporations did. In 1971, only 175 

corporate firms had registered lobbyists in Washington; 

by 1982, nearly 2,500 firms had registered lobbyists.14

Powell also identified the courts as a “vast area of opportunity.” Bemoaning the 

“exploit[ation] of the judicial system” by groups such as the American Civil Liberties 

Union, Powell called on the business community to aggressively invest in the courts. 

“Under our constitutional system,” Powell argued, “especially with an activist-minded 

Supreme Court, the judiciary may be the most important instrument for social, 

economic and political change.” 

Just two months after submitting his memo, Powell was nominated by President Nixon 

to the Supreme Court. He was confirmed by a bipartisan vote of 89-1. This memo was 

not disclosed.

Growth of the Conservative Legal Movement 

In the following decades, conservative Republicans and the American business 

community took up Powell’s cause with remarkable zeal. Major business interests such 

as Exxon, Pfizer, RJR Nabisco, Koch Industries, Dow Chemical, Aetna, and Monsanto 

pumped millions of dollars into industry trade associations like the U.S. Chamber of 

Commerce. Ronald Reagan, then governor of California, and his state attorney general, 

Edwin Meese, encouraged the founding of Pacific Legal Foundation (PLF), the first of 

several business-funded “public interest” law firms. These groups filed strategic

Supreme Court Justice 

Lewis F. Powell Jr.

11
lawsuits to advance business interests—and rewrite the laws—through the courts 

while obscuring the identities of the interests backing them. Ideological foundations 

established by wealthy industrialists—such as the Olin Foundation, the Sarah Scaife 

Foundation, and the Lynde and Harry Bradley Foundation—joined the fray. “Combining 

their vast resources,” these “self-interested business concerns and ideologically driven 

foundations” invested millions of dollars into a broad array of programs designed 

to build the intellectual framework “for a new legal vision that was predominantly 

concerned with promoting and protecting commercial and private wealth”, according 

to a report from Alliance for Justice.15

By the time Reagan became president, the conservative legal movement was well 

underway and well-funded. It now had an ally in the White House—and soon, under 

Attorney General Edwin Meese, one in the U.S. Department of Justice as well. The 

movement began aggressively pushing the courts to play an active role by striking 

down laws and reversing precedents it disliked.

Originalism is a 

political project, 

not a legal or 

constitutional one.

The New Judicial Activism

Ironically, this aggressively activist legal movement 

came masked as a call for “judicial restraint.” 

In the years following the Second World War, 

the Supreme Court recognized a constitutional 

right to privacy and reproductive rights, allowed 

government agencies to regulate pollution and 

other harmful externalities of industry, provided 

due process protections for criminal defendants, 

and imposed school desegregation and 

constitutional civil rights protections for

minorities. In particular, Brown v. Board of Education—the landmark Supreme Court 

case that unanimously declared racial segregation in public schools unconstitutional—

became a lightning rod for conservative outrage.

Arguing that these developments were the product of liberal “judicial activism,” the 

conservative movement countered by advancing the legal theory of originalism—

that the Constitution’s meaning should be treated as frozen in time at the moment 

of its ratification. The movement claimed that sticking closely to the “original intent” 

of the Framers was the only authoritative, neutral, and objective way to “follow the 

Constitution.” In contrast to the liberals’ so-called “activism” and the idea that our 

centuries-old Constitution must be interpreted to account for the needs of an evolving 

society, they argued that originalism was a model for “judicial restraint.” Hardly.

Originalism is a political project, not a legal or constitutional one. Originalism is 

a judicial tool to achieve political and policy ends that serve corporate interests, social 

conservatives, and ultra-rich Americans. In the 1980s, the conservative legal movement 

began weaving an ornate tapestry of jurisprudential theory around “originalism,” 

injecting it into legal academia and government. This provided an excellent screen for 

the work’s true, political purpose, which was crystal clear behind the scenes. In a 1986 

internal memo to Attorney General Edwin Meese, for example, Justice Department

12
lawyer Steven Calabresi criticized his department for “not acting as an agent of 

counterrevolutionary change.”16 Calabresi denounced the idea of “judicial restraint,” 

insisting that aggressive originalism should be the driving force of the conservative 

legal movement. Calabresi argued that “the courts and the executive must start 

using their constitutional powers to hold the Congress within its proper constitutional 

sphere.”17

As one scholar wrote, “in addition to rolling back liberal judicial precedent, the 

movement conservatives in the Republican Party were intent on relitigating the New 

Deal by thoroughly reconceiving the scope of Congress’s power vis-à-vis the states, and 

by attacking the constitutional legitimacy of the administrative state.”18

Calabresi, who had co-founded the Federalist Society four years earlier, became an 

influential figure in the conservative legal movement. His vision of judicial activism 

and executive power, and of right-wing “counterrevolutionary” change through the 

courts, became the guiding light of the Federalist Society’s legal movement. Not 

coincidentally, as Republicans gained political and judicial power under Reagan, 

George H. W. Bush, George W. Bush, and Trump, the purportedly foundational 

originalist concept of “judicial restraint” fell quickly by the wayside in favor of aggressive 

judicial review of Congressional lawmaking. 

Before long, this “counterrevolutionary” project took hold at the Supreme Court. 

Originalism—with its aura of objectivity—provided the perfect cover. And where it 

didn’t lead to sufficiently “counterrevolutionary” policy results, originalism—like other, 

actually law-conserving principles such as stare decisis and deference to fact 

finders—was conveniently ignored.

A Right-Wing Rout at the Supreme Court

The proof is in the numbers. During John Roberts’s tenure as Chief Justice, the 

Court’s five-justice Republican-appointed majority has handed down more than 80 

partisan 5-4 decisions—joined by no Democratic appointee—that delivered wins to 

the Republican Party and the big corporate interests behind it. As we will address in 

greater detail as part of future efforts, these decisions have had dire consequences for 

ordinary Americans.

13
The most egregious of these partisan decisions—Shelby County, Citizens United, Janus

v. AFSCME, and District of Columbia v. Heller, for example—are just the tip of the

iceberg. There are dozens and dozens more. By bare partisan majorities in these 80

cases, Republican justices have given the green light to rampant GOP voter

suppression and gerrymandering (Shelby County v. Holder; Husted v. Randolph

Institute; Rucho v. Common Cause ). They have shut the courthouse doors to

workers and consumers, allowing predatory corporations to enforce mandatory

arbitration contracts drafted heavily in their favor (Epic Systems Corp. v. Lewis; AT&T v.

Concepcion ). They have targeted America’s labor unions with particular zeal (Knox v.

SEIU; Harris v. Quinn; Janus ).

The “Roberts Five” have gutted regulations that once kept our air and water clean

(Michigan v. EPA; Summers v. Earth Island Institute ). They have rolled back the

clock on civil rights, clearing the way for discrimination based on race, sex, and age

(Parents Involved v. Seattle School Dist. No. 1; Ledbetter v. Goodyear Tire; Gross v. FBL

Financial Services ). They have distorted the Second Amendment to make sensible

gun regulations an impossibility (Heller; McDonald v. Chicago ). They have curtailed

women’s access to reproductive healthcare (Gonzalez v. Carhart; Burwell v. Hobby

Lobby ). And through their ruling in Citizens United, they unleashed a “tsunami of

slime” that has corrupted our government. Even when Chief Justice

18

19 20

21

22

23 24 25

26 27

28

29

30 31

32

33

34

The most egregious of these partisan decisions—Shelby County, Citizens United, 

Janus v. AFSCME, and District of Columbia v. Heller, for example—are just the tip of the 

iceberg.19 There are dozens and dozens more. By bare partisan majorities in these 80 

cases, Republican justices have given the green light to rampant GOP voter suppression 

and gerrymandering (Shelby County v. Holder; Husted v. Randolph Institute;

20 Rucho 

v. Common Cause21). They have shut the courthouse doors to workers and consumers, 

allowing predatory corporations to enforce mandatory-arbitration contracts drafted 

heavily in their favor (Epic Systems Corp. v. Lewis;

22 AT&T v. Concepcion23). They have 

targeted America’s labor unions with particular zeal (Knox v. SEIU;

24 Harris v. Quinn;25 

Janus26 ). 

The “Roberts Five” have gutted regulations that once kept our air and water clean 

(Michigan v. EPA;

27 Summers v. Earth Island Institute28). They have rolled back the clock 

on civil rights, clearing the way for discrimination based on race, sex, and age (Parents 

Involved v. Seattle School Dist. No. 1;

29 Ledbetter v. Goodyear Tire;30 Gross v. FBL Financial 

Services31). They have distorted the Second Amendment to stymie commonsense 

gun safety regulations (Heller;

32 McDonald v. Chicago33). They have curtailed access to 

reproductive healthcare (Gonzalez v. Carhart;

34 Burwell v. Hobby Lobby35). And through 

their ruling in Citizens United, they unleashed a “tsunami of slime” that has corrupted 

our government.36

14
Even when Chief Justice Roberts joins the Court’s liberals, e.g., to uphold the Affordable 

Care Act, it appears he does so out of political, not legal, considerations. In reaching his 

ACA decision, Roberts “changed course multiple times,” horse-trading votes with his 

colleagues and demanding that they agree to strike the ACA’s Medicaid expansion as 

his price for upholding the broader law;37 he also quietly narrowed the Constitution’s 

Commerce Clause and created a “dragooning” (or coercion) theory to limit federal 

power over states. 

On the way to this judicial landslide, the Republican majority on the Supreme Court 

has been stunningly cavalier with any doctrine, precedent, or congressional finding 

that gets in the way of furthering outcomes favored by the Republican Party and 

its big donors. Indeed, in over 50% of the 80 cases in the Republican judicial rout, 

the Court’s majority ignored “conservative” principles like “originalism,” “textualism,” 

“judicial restraint,” and “stare decisis,” discarding them when they proved inconvenient. 

But in other cases—and often with little regard for the factual findings of lower 

courts or of Congress—the Court’s right-wing majority selectively invoked these same 

“conservative” principles to bring about the Republican Party’s policy goals again and 

again. And the majority has even invented “facts” when that helped it bring about the 

Republican party’s political goals.38 

15
1. The President is all-powerful. The Roberts Court appears to be on the verge of 

embracing the conservative legal movement’s “Unitary Executive Theory,” a 

once-fringe legal doctrine that would give the president essentially unchecked 

power over administrative agencies.39 Under President Trump, we have seen what an 

unchecked president can do, defying congressional oversight without accountability 

and shredding the rule of law. 

2. Corporations trump people. Right-wing judges prioritize the rights of corporations 

over the rights of people. Under the Court’s GOP majority, the rights of workers 

and consumers have been steadily whittled away, insulating wealthy interests from 

accountability when corporate malfeasance, discrimination, and harassment harm 

individual Americans. In fact, the Republican Court majority has repeatedly declared 

that corporations are people, entitled to their own constitutional rights, such as the 

First Amendment right to political speech. 

3. Congress can’t be trusted to legislate. In furtherance of its corporate agenda, the 

Court’s Republican majority finds “rights” in the Constitution that make it difficult for 

Congress to pass laws that real people want; the majority casts aside the bipartisan 

work of Congress where it gets in its way. For example, in Citizens United, the Supreme 

Court invalidated a bipartisan campaign finance law based on a constitutional “right” 

to corporate political speech—a right found nowhere in the Constitution’s text. 

Originalism and other conservative “doctrines of convenience” are 

being used to rewrite the way our democracy works in at least 

seven basic ways. All of them follow a partisan agenda and 

consistently advance Republican Party interests. In the Republican 

Supreme Court majority’s view of the world:

16
4. Administrative agencies can’t be trusted to regulate. For decades we have relied 

on agencies like the Environmental Protection Agency, the Securities and Exchange 

Commission, and the Department of Labor to protect our environment, our financial 

security, and our workplaces. These agencies are designed to rely on expertise and 

evidence to make rules that benefit all Americans. The Roberts Court puts this system 

in jeopardy, undermining agency independence and the determinations of scientists, 

economists, and other experts. 

5. Racism is a thing of the past. In justifying his decisive vote to gut the Voting 

Rights Act—which for decades protected minority voters from racially motivated 

voter suppression—John Roberts declared racism a relic of the past. Sure enough, in 

the decade that has followed that vote, the GOP has once again pursued race-based 

voter suppression. A similarly privileged and blinkered view of the world animates 

the Republican Court majority’s hostility to school integration and affirmative action 

programs.

6. Everyday Americans can’t be trusted to govern themselves. The Supreme Court 

has decided that it knows best how to regulate the basic terms of our democracy, 

and at every turn it has concluded that those with money and power should be in 

control. From campaign finance to voting rights to access to trial by jury, the rules of 

engagement are increasingly stacked in favor of big interests.

7. “Liberty for me, but not for thee.” When individual rights and liberties come into 

tension with one another, the rights and liberties prized by Republicans always win 

out. In the Republican majority’s view, for example, the individual right to own a gun is 

more important than the right of Americans to be safe from gun violence; a religious 

employer’s right to “religious liberty” deserves more protection than an employee’s 

right to access statutorily mandated contraceptive care.

For years, Republicans have argued that government is a threat to your liberty. 

The true threat to our liberty and equality is when unelected judges with life

tenure act as servants to powerful business interests. With a judiciary 

captured by the special interests that fund the Republican Party, GOP 

politicians can trust the courts to do their dirty—and unpopular—work. 

They get to avoid the electoral consequences. This is anti-democratic and 

fundamentally un-American. Indeed, it represents nothing less than a crisis for 

American democracy, which relies at its core on a fair and impartial judiciary.

17
FOLLOW THE MONEY:

The Federalist Society, Leonard Leo, and 

How Special-Interest Money Dominates 

Our Courts
Republican politicians and their billionaire backers have used an outside-inside 

strategy to capture our courts: wealthy funders on the outside fund the operation, and 

politicians on the inside put it into action. The entire operation is fueled by hundreds of 

millions of dollars of anonymous, special-interest “dark money.” 

At the center of the outside game sits the Federalist 

Society for Law and Public Policy Studies and its 

co-chair Leonard Leo.

Rise of the Federalist Society 

In 1982, a small group of right-wing law students 

and professors at Yale University and the University 

of Chicago founded the Federalist Society for Law 

and Public Policy Studies. Supported by prominent 

conservatives such as future Supreme Court Justice 

Antonin Scalia, the Federalist Society aimed to 

provide an alternative to the liberal orthodoxy they 

viewed as dominating law school curricula and 

legal institutions.40

The Federalist Society “proclaimed the virtues of individual freedom and limited 

government”41—code words for the anti-government, anti-regulatory agenda laid 

out in the infamous Powell Memo. The Federalist Society also openly embraced the 

Republican Party’s far-right social agenda—serving, for instance, as a hub for the 

gun industry’s successful effort to create from 

whole cloth an individual right to bear arms 

under the Second Amendment (using a theory 

Republican-appointed Chief Justice Warren 

Burger once called a “fraud on the American 

public”).42 

Today, the Federalist Society has grown into a 

powerful nationwide political network, with tens 

of thousands of academics, practitioners, judges, 

politicians, and law students as members. It is 

a 501(c)(3) tax-exempt “charitable” organization 

that bills itself as a “debating society” for 

“a group of conservatives and libertarians 

interested in the current state of the legal 

order.”43 It claims it does not take legal or policy 

positions, or advocate for judicial nominees.44

Whatever its origins, the Federalist Society has effectively become a judicial lobbying 

interest group. As political scientists and journalists have documented, it provides the 

nerve center for a complex and massively funded apparatus—composed of think tanks, 

law school centers, policy front groups, political campaign arms, and public relations 

shops—all designed to rewrite the law according to the political orthodoxy of Federalist 

Society donors.45

Supreme Court Justice Antonin Scalia

19

The Federalist Society’s Leonard Leo
Under Trump, the group has all but assumed complete control over the 

Administration’s judicial selection and confirmation process, embedding its members 

in the White House and on the courts.46

The Federalist Society Chooses Our Judges

While the Federalist Society develops and promotes pro-corporate, pro-Republicandonor legal theories, it has also become the linchpin of Republican efforts to select and 

confirm judges.

Donald McGahn, a Federalist Society member and former Trump White House 

Counsel, remarked that Trump had “insourced” the Federalist Society for his judicial 

selection effort.47 Leonard Leo, a leader of the Federalist Society and the architect of a 

secretive fundraising network, twice took formal “leave” from the Federalist Society to 

advise President Trump on his Supreme Court nominations,48 raising a host of 

conflict-of-interest and financial-disclosure concerns. With McGahn, Leo crafted 

Trump’s 2016 Supreme Court shortlist,49 alleviating conservative Republicans’ concerns 

that Trump might not nominate a reactionary Supreme Court justice and, in turn, 

securing a critical constituency for Trump’s election.

As Trump himself stated plainly 

in 2016: “The Federalist Society 

vetted very carefully great 

scholars, pro-life, very, very fine 

people. Second Amendment—

and you know, I think, a very good 

list. We have a list of twenty 

judges and all [have] been vetted 

by the Federalist Society and I 

think yeah, it’s gotten great. It’s 

gotten great marks.” “We’re going

to have great judges,” Trump 

promised, “all picked by Federalist 

Society.”50

Just a “debating society,” indeed. 

Now, with a majority of the 

Supreme Court and hundreds of 

lower court judges aligned in 

lockstep with the Federalist 

Society’s vision, it should come as 

little surprise that the courts are 

implementing the organization’s 

political agenda—not to mention the Trump Administration’s.52 In doing so, they are 

handing consistent wins to the Republican Party, its socially conservative political base, 

and its corporate backers. This erodes the independence of our courts. 

20

FEDERALIST SOCIETY PIPELINE 

TO THE BENCH

51

appearances by 

Brett Kavanaugh at 

Federalist Society 

events—some might 

call these auditions—

before his nomination 

to the Supreme Court, 

Kavanaugh was also 

their celebrated guest 

after his confirmation.

FLORIDA GOVERNOR 

RON DESANTIS

appointed 56 state 

court judges during his 

first year in office. He 

made sharing Federalist 

Society’s views his 

“singular test” for 

being appointed to the 

bench.51

86%

of Donald Trump’s 

nominees to the 

Supreme Court and 

courts of appeals are 

Federalist Society 

members.

SUPREME COURT 

JUSTICES SCALIA, 

THOMAS, ROBERTS, 

ALITO, GORSUCH, 

AND KAVANAUGH

have all been 

affiliated with the 

Federalist Society 

and have regularly 

appeared at 

Federalist Society 

events.
$20.7M

$5.5M

$1.7M

$50K

$2.4M

$100K

$50K

$25K

AT

LEAST

APIECE

APIECE

APIECE

21

FOLLOW THE MONEY (IF YOU CAN): THE FUNDING OF THE 

FEDERALIST SOCIETY

the Federalist Society’s total donations received in 2017.

was routed through the Koch-linked group Donors Trust, 

an identity-laundering operation whose “donor-advised 

fund” structure hides the real identities of politically 

motivated megadonors.

came from anonymous individuals. The bulk of that (at 

least $1.5 million) came from just nineteen anonymous 

individuals who each gave $50,000 or more.

came from the United States Chamber of Commerce, 

which refuses to disclose its funding or even the 

businesses that make up its membership.

came from private foundations or trusts, which are 

often tightly controlled by wealthy families with 

industry ties, and which use their tax-exempt status to 

spend unlimited sums on ideological causes.

came from several large corporations such as Google, 

Koch Industries, and Walmart.

came from several large corporations such as Chevron, 

Microsoft, and Pfizer. Prominent law firms that might 

argue cases before the Supreme Court, such as Baker 

& Hostetler and WilmerHale, also contributed tens of 

thousands of dollars to the Federalist Society.

came from several large corporations such as Bank of 

America and Facebook.
22

WHAT IS “DARK MONEY”?

Dark money is funding for organizations and political activities 

that cannot be traced to actual donors. It is made possible 

by loopholes in our tax laws and regulations, weak oversight 

by the Internal Revenue Service, and donor-friendly court 

decisions.

After the Supreme Court’s Citizens United decision, dark 

money has increasingly dominated American politics. 

Originally a Republican political device, it is now used by 

Republican and Democratic interests alike. Democrats 

have proposed getting rid of it, through legislation like the 

Democracy Is Strengthened by Casting Light On Spending in 

Elections (DISCLOSE) Act.

Dark money is troubling enough for our politics. But dark 

money is a uniquely pernicious threat when deployed to 

capture the institution in which fairness and equality under 

the law matters most: our courts. And unlike in politics, where 

elections can work to correct extreme policies or corruption, 

federal judges enjoy life tenure, and many judicial decisions 

cannot be overturned by Congress.

When dark money is deployed to capture seats on the federal 

courts, the effects can last for generations.
Shadow Justice: Leonard Leo and the $250 Million 

Dark Money Judicial Influence Machine

In May 2019, the Washington Post published a 

groundbreaking investigation into Leonard Leo 

and his judicial-influence network. “At a time when 

Trump and Senate Majority Leader Mitch McConnell 

are rapidly reshaping federal courts by installing 

conservative judges and Supreme Court justices,” the 

Post explained, “few people outside government have 

more influence over judicial appointments now than 

Leo.” “For two decades, Leo has been on a mission to 

turn back the clock” at the Supreme Court.53

At a closed-door gathering of allies, Leo explained, 

“we’re going to have to understand that judicial 

confirmations these days are more like political 

campaigns. . . . No one in this room has probably 

experienced the kind of transformation that I think 

we are beginning to see.” Introduced as having 

“a significant leadership role in the selection and 

successful confirmation of a third of the currently 

sitting justices on the Supreme Court,” Leo flexed his 

muscles: “I’ve seen that comment about the third of 

the Supreme Court, I prefer controlling interests,” Leo 

said to laughs from the crowd. “But we haven’t quite 

been able to launch a hostile takeover yet.”54

While Leo was already “widely known as a confidant to 

Trump and as executive vice president of the Federalist 

Society,” the Post’s reporting revealed that, “behind the 

scenes, Leo is the maestro of a network of interlocking 

nonprofits working on media campaigns and other 

initiatives to sway lawmakers by generating public 

support for conservative judges.”55

When pressed by the Post to explain his role 

coordinating the millions of dollars of special-interest 

money he is connected to, Leo avoided the question: 

“The Washington Post and other entities are more 

than welcome to write stories about money in politics,” 

he demurred, “but I don’t engage in that conversation 

because one, I’m not particularly knowledgeable about 

a lot of it, but, secondly, because it’s just not what I 

do. . . . I don’t waste my time on stories that involve 

money in politics because what I care about is ideas.”56

IS IT LEGAL?

While presidents can 

of course seek advice, 

conflict-of-interest-laws 

require federal employees 

to disclose their potential 

conflicts of interest and to 

take steps to address them. 

Transparency prevents 

corruption.

Senate Democrats are 

investigating whether the 

Trump Administration 

and Leonard Leo, who 

took leave from his 

Federalist Society job 

to advise the Trump 

Administration, complied 

with these laws.

Working to help 

certain people to 

become judges is not 

in itself wrong. But 

orchestrating secret, 

multi-million-dollar 

campaigns to get judges 

on the bench who will 

reliably support your 

donors’ interests may 

run afoul of federal 

law. And it certainly 

undermines the integrity 

of the courts.

23
But building off previous investigative efforts by OpenSecrets and MapLight, the Post

report found Leonard Leo at the heart of a network of more than two dozen right-wing 

nonprofit entities–groups that raised over $250 million between 2014 and 2017 alone.57 

As the Post reported, the money was largely used to promote far-right policies and 

legal doctrines, and the judicial nominees who advance them. The public has little idea 

who is funding this effort, or what their political or financial interests are before the 

courts, or how they stand to gain. 

One thing seems clear: no one spends a quarter-billion dollars, anonymously, for 

no good reason. 

Behind the Veil: Understanding Leo’s Secret Influence Machine

In January 2020, Leonard Leo announced that he was stepping aside from his 

$400,000-per-year job as the Federalist Society’s Executive Vice President.58 While 

remaining as co-chair of the Federalist Society’s board, Leo announced the formation of 

a new venture, CRC Advisors. Leo indicated it would spend a “minimum of $10 million 

for an issue advocacy campaign focusing on judges in the 2020 cycle.”59

CRC Advisors is just one cog in the complicated and opaque machine working to 

influence and capture our judicial system. Even Leo himself seems unable to keep 

track of it all: “I have no idea how many groups I’ve been involved with over the years,” 

he told the Post. But as the Post reported, “the groups in Leo’s network often work in 

concert and are linked to Leo and one another by finances, shared board members, 

phone numbers, addresses, back-office support and other operational details, 

according to tax filings, incorporation records, other documents and interviews.”60 The 

extraordinary overlaps suggest a common effort seeking to hide behind a confusing 

but coordinated array of front groups.

24

THE CONSERVATIVE LEGAL MOVEMENT’S

INFRASTRUCTURE:

deep-pocketed, special-interest donors, who provide the funds;

shell entities, which funnel the money and exploit tax laws to 

keep donors’ identities secret;

public relations firms and political operatives who run multimillion-dollar ad campaigns to support and oppose judges and 

generate earned media to craft favorable public narratives; and

a brain trust of ideological think tanks, academic institutions, and 

“public interest” law firms, filled with lawyers and professors who 

generate “intellectual capital”—law review articles, amicus briefs, 

and so on—to advance the donors’ interests through the courts.
LEONARD LEO’S SECRETIVE MONEY 

NETWORK

Chart of connections between some of the largest groups in Leonard Leo’s secretive network. This chart is 

not exhaustive and mainly presents the groups selected for discussion in this report. Available at https://

tinyurl.com/LeonardLeoNetwork.

This section provides a snapshot of just a few of the key players.

While many of the donor interests behind this machinery remain obscure, painstaking 

investigative reporting has shown that much of the money comes from ultra-wealthy 

corporate interests, such as Koch Industries and the U.S. Chamber of Commerce. These 

corporate interests are joined by an array of enormously wealthy and influential family 

foundations, whose fortunes generally derive from wealthy corporate interests. 

25
THE BIG-MONEY DONORS

Koch Industries/Charles & David Koch Foundations

An avowed anti-government libertarian, Charles Koch controls Koch Industries, a 

sprawling, privately held conglomerate with multi-billion-dollar interests in fossil fuels, 

manufacturing, fertilizers, chemicals, energy, paper, ranching, and finance. Through 

Koch Industries and their individual foundations, Charles Koch and his late brother 

David have invested millions of dollars in the Federalist Society and Leonard Leo’s 

other groups over the years.61 At a private meeting in 2018 at the annual donor summit 

hosted by the Kochs, Leonard Leo, along with a leading Senate Republican, “told a 

small group of financiers that the Trump Administration was looking to overhaul a 

large chunk of the federal court of appeals by the end of the year.”62 He stated that 

“[b]y the end of this year [his] prediction is that basically 26% of the federal appellate 

bench will have changed under the Trump Administration,” prompting “a round of 

applause.”63

The Lynde and Harry Bradley Foundation

Founded in 1942 with funds from the Allen-Bradley manufacturing fortune, the Bradley 

Foundation has given over $500 million to conservative “public-policy” experiments 

since 2000. Over the years, Bradley Foundation funding has supported voter 

suppression, efforts to privatize public schools, attacks on renewable energy, opposition 

to healthcare reform and Medicaid expansion, and systematic attacks on labor rights. 

The Foundation awarded the Federalist Society its Bradley Prize in 200965 and remains 

a key driver of Leonard Leo’s influence engine.66

26

The Scaife Foundations

The Scaife Foundations are a 

trio of foundations formerly 

directed by the late Richard 

Mellon Scaife, principal heir 

to the Mellon banking, oil, 

and aluminum fortune. They 

have provided millions of 

dollars in funding to rightwing organizations such as the 

Federalist Society, Heritage 

Foundation, the American 

Legislative Exchange Council, 

the Cato Institute, and antiimmigrant groups such as 

the Center for Immigration 

Studies.64

THE COURT’S

800-POUND GORILLA

How the U.S. Chamber of Commerce dominates the 

Supreme Court:

• The U.S. Chamber of Commerce has given at least 

$800,000 to the Federalist Society, including at least 

$50,000 every year from 2006 to 2017 and at least 

$50,000 more in 2019.

• It has filed at least 448 amicus briefs in the Supreme 

Court since John Roberts became Chief Justice in 

2005.

• During Roberts’ tenure, the U.S. Chamber of 

Commerce’s position has prevailed at the Court 70% 

of the time, an unparalleled win rate.
U.S. Chamber of Commerce

The U.S. Chamber of Commerce is a pro-corporate 

trade group and the largest lobbying organization in 

the United States. It has spent almost $1.4 billion on 

lobbying the federal government over the last two 

decades, more than three times as much as the next 

largest spender.67 While it describes itself as “the 

world’s largest business organization representing 

the interests of more than 3 million businesses of all 

sizes, sectors, and regions,” the Chamber keeps its 

funding and the identities of its members secret.68

In 2010, a New York Times investigation found that 

half of the Chamber’s $140 million in contributions in 

2008 came from just 45 big-money donors,69 many 

of whom enlisted the Chamber to fight political and 

public opinion battles on their behalf (while avoiding 

accountability themselves). With strong ties to the 

tobacco and fossil fuel industries, the Chamber has 

aggressively opposed measures to combat smoking 

and address climate change. 

Since John Roberts and Samuel Alito joined the 

Supreme Court in the 2005-2006 term, the Court has 

become increasingly friendly toward big business, 

ruling for the Chamber’s position 70% of the time.

70

The Chamber also actively lobbies Congress to confirm 

judges and justices who it believes are likely to rule 

in line with its pro-business, anti-climate, anti-worker 

agenda. In August 2018, for example, it sent a letter 

to all U.S. senators urging them to confirm Brett 

Kavanaugh to the Supreme Court, describing the 

confirmation vote as a “key vote” affecting its political 

endorsements (and, in turn, its political 

donations and attack-ad targeting).71

27
THE FRONT GROUPS

Leonard Leo takes advantage of a network of front groups that exploit the tax code to 

provide his donors anonymity as they fund the court-capture scheme. Through this 

loosely affiliated (but tightly controlled) network of groups, Leo can move and deploy 

money freely—and with hardly a trace. These groups allow self-interested donors to 

pull the levers of judicial power free from public scrutiny or repercussion. 

the Federalist Society $5.5 million, accounting for 25% of the Federalist Society’s total 

revenue that year.74 

CRC Advisors: In January 2020, Leo announced that he was stepping down from his 

Executive Vice President position at the Federalist Society to start CRC Advisors, which 

he is running with longtime ally Greg Mueller.75 CRC Advisors will be closely tied to 

Mueller’s existing firm, Creative Response Concepts (“CRC”). Mueller’s firm was hired 

by nonprofits associated with Leo to coordinate multimillion-dollar media campaigns 

supporting the Republican effort to block President Obama from filling a Supreme 

Court seat and later promoting Neil Gorsuch’s nomination to that seat. CRC Advisors’ 

first initiatives will include a “minimum of $10 million issue advocacy campaign 

focusing on judges in the 2020 cycle.”76 Initial reports suggest that CRC Advisors will 

“work with two existing non-profit groups, which will be rebranded as the Concord 

Fund and the 85 Fund,” to “funnel tens of millions of dollars” of anonymous money into 

its campaigns.77

28

DonorsTrust:

Known as the “dark-money ATM 

of the conservative movement,” 

Donors Trust offers anonymity 

to its donors—laundering the 

identities of the donors off their 

money as it goes to their grantees.72 

Founded by a confidant of the Koch 

brothers,73 DonorsTrust and its sister 

organization Donors Capital Fund 

have steered hundreds of millions 

of dollars to the most influential 

think tanks, foundations, and 

advocacy groups in the conservative 

movement. The public does not 

know—and cannot uncover—where 

this money comes from. DonorsTrust 

money has supported efforts to 

undermine collective bargaining 

rights, support state-level voter 

suppression, and spread climate 

denial. In 2017, DonorsTrust funneled

Big Money, Big Interests

Anonymous or opaque donors contribute 

staggering amounts of money to the Leo network.

• Wellspring Committee has given the Judicial 

Crisis Network (JCN) money every year since 

2005, including $23.5 million in 2016 and $15 

million in 2017. 

• JCN received a $17.9 million gift from a single 

anonymous source during the Garland and 

Gorsuch confirmation fights.

• JCN received a $17.1 million gift from a single 

anonymous source the next year, gearing up for 

the Kavanaugh nomination.

Few Americans have the resources to spend this 

kind of money to influence our public institutions. 

Presumably these funders view this money as well 

spent, ensuring certain returns in the years to come.
Wellspring Committee funneled millions of dollars a year to other groups within Leo’s 

network until it quietly shut down in 2018.78 Founded by the Koch network and GOP 

political operatives in the lead-up to the 

2008 election, Wellspring accounted for 

over 90% of the funding for the Judicial 

Crisis Network (JCN), a Leo-affiliated 

501(c)(4) organization that often operates 

as the tip of the spear for the network’s 

media attack campaigns.79 Most of 

Wellspring’s funds came from three 

multi-million-dollar secret donations. 

Wellspring’s final tax return revealed 

that its largest donor accounted for $8.9 

million in funding that year, while another 

donor gave $5.5 million, and a third provided 

$2 million.80 All of these donors’ identities 

remain hidden.

BH Group/Fund:

Campaign finance filings show that the 

unremarkably named BH Group has received 

millions of dollars from organizations connected to Leo.81 In 2016, Leo became 

President of BH Fund, which has no office space, no website, and “virtually no public 

profile.”82 In 2016, Leo used the BH Fund to funnel $1 million to President Trump’s 

inaugural committee. When asked about BH Fund, Leo had only this to say: “Um . . . BH 

Fund is a charitable organization. You can look it up. I’m sure its statement of purpose 

is listed.”83 That “charitable organization” received over $24 million from a single 

anonymous donor in 2016 and 2017 alone.84 

In turn, BH Fund and affiliated front groups donated millions of dollars to organizations 

such as the National Rifle Association and Independent Women’s Voice, which then ran 

ad campaigns and made media appearances to support Trump’s judicial nominees.85

Freedom and Opportunity Fund & America Engaged:

Like BH Fund, these Leo-led groups were formed by a single law firm with deep ties to 

the conservative movement.86 According to the Post, Leo’s role as president of all three 

groups was not disclosed for nearly three years because of lags in how nonprofit groups 

report their annual operations to the IRS.87 After BH Fund raked in over $24 million 

from a single anonymous donor, it distributed almost $3 million to these two groups.

8665 Sudley Rd Ste 182 Manassas, VA 20110 

(Google Maps) 

The address on file for the Wellspring 

Committee is for a mailbox at a UPS Store. 

The Wellspring Committee funelled tens 

of millions of dollars to right-wing judicial 

nonprofits until it disbanded in 2018.

29
In turn, America Engaged funneled nearly $1 million to the lobbying arm of the 

National Rifle Association, which then spent millions on ads boosting Supreme Court 

nominees Neil Gorsuch and Brett Kavanaugh—including one ad that promised 

Kavanaugh would “break the tie” in favor of the gun lobby on gun safety issues.88 For 

its part, Freedom & Opportunity Fund poured $4 million into Independent Women’s 

Voice, which led the effort to smear Dr. Christine Blasey Ford after she came forward 

with sworn testimony that Kavanaugh had sexually assaulted her.89

The NRA promised that Kavanaugh would “break the tie’” in 

Second Amendment gun cases.

30
POLITICAL OPERATIVES

The special-interest money in Leo’s network also funds an army of aggressive public 

relations groups and political operatives, who advance the network’s interests through 

earned and paid media channels. Often branded to create the appearance of 

grassroots support (e.g., “Honest Elections Project,” or “Concerned Women of America”), 

these groups rely on millions of anonymous dollars, not boots on the ground.

The Judicial Crisis Network (“JCN”) is the 

political arm of the Leo network. Though 

it claims status as a 501(c)(4) “social 

welfare” group in order to shield itself from 

donor disclosure requirements,90 JCN is 

effectively a political action committee 

(PAC) in disguise. JCN has made more 

than 10,500 ad buys since 2012, most of 

them so-called “issue ads” that don’t 

explicitly tell viewers to support or oppose 

particular candidates but do exactly that in effect.91 JCN’s ties to Leo and the Federalist 

Society are kept intentionally opaque. As the Post reported, “JCN’s office is on the same 

hallway as the Federalist Society in a downtown Washington building, though JCN’s 

website and tax filings list a mailing address at a different location, an address shared 

by multiple companies.”92 JCN spent $7 million opposing President Obama’s Supreme 

Court nominee Merrick Garland.93 It then spent $10 million more to support the 

confirmation of President Trump’s Supreme Court nominee Neil Gorsuch (targeting 

“vulnerable Democrat Senators”), and pledged another $10 million in advertising 

campaigns to support Brett Kavanaugh’s nomination.94 JCN also spent heavily on 

lobbyists, who worked to help shepherd the Gorsuch and Kavanaugh nominations 

through the Senate. 

Two separate, anonymous $17 million donations,95 plus another $23 million in 

anonymous money from the Leo-affiliated, now-defunct Wellspring Committee,96 

funded this work. 

31
In turn, JCN has distributed millions of dollars to other organizations, many of which 

engage in direct and substantial political spending. Since 2011, JCN has given more 

than $38.2 million in “grants”—almost half of its total budget— to 501(c)(4), 501(c)(6), 

and 527 advocacy groups, with the largest contributions to groups with explicit political 

aims, such as the Republican Attorneys General Association. These grants—much 

like JCN’s so-called “issue ads” targeting “vulnerable Democrat[ic] Senators”97—don’t 

count against JCN’s political spending limits, which allows the group to barge into 

the political arena while enjoying the donor anonymity afforded by its “social welfare” 

status. 

Creative Response Concepts Public Relations (Later CRC Strategies) has 

served as the clearinghouse and public face of the network’s public relations and 

communications strategy. CRC’s president, Greg Mueller, describes himself as a friend 

of Leo and is Leo’s partner in his new venture, CRC Advisors.98 At least nine of the 

groups tied to Leo’s network hired CRC for consulting and public relations services in 

2016 and 2017, collectively paying it more than $10 million. CRC played an active role 

in the Kavanaugh nomination fight, working with Ed Whelan (of the so-called Ethics 

& Public Policy Center, another right-wing group) to develop the widely criticized 

“doppelganger” alibi suggesting that one of Kavanaugh’s classmates was the true 

perpetrator of the sexual assault on Christine Blasey Ford.

Independent Women’s Forum and Independent Women’s Voice grew out 

of a group called “Women for Clarence Thomas.” They are anti-feminist groups 

predominantly funded by right-wing foundations.99 Both groups have taken an active 

role in public relations efforts surrounding controversial judicial appointments—for 

example, leading efforts to defend Brett Kavanaugh and stigmatize his accusers in 

the wake of their sexual assault allegations. As the Post reported, spokespeople for 

Independent Women’s Voice have appeared frequently on Fox News, speaking in 

support of Trump and his judicial nominees.100 According to the group’s president, 

Heather Higgins, Independent Women’s Voice “ha[s] worked hard to create a branded 

organization .  .  . that does not carry partisan baggage.”101 But she has also admitted 

that their nonpartisanship is a façade: “Being branded as neutral but actually having 

the people who know, know that you’re actually conservative puts us in a unique 

position.”

32
THE BRAIN TRUST

“The more powerful and 

influential the people who are 

willing to make a legal argument, 

the more quickly it moves from 

‘positively loony’ to ‘positively 

thinkable,’ and ultimately to 

something entirely consistent 

with ‘good legal craft.’”

 

—Jack Balkin, Yale Law School

The Federalist Society is at the heart of a vast network of ideological nonprofit 

organizations, think tanks, lawyers, law professors, academic centers, and 

quasi-journalists. Many of them are funded directly by the big-money donors 

described above, or indirectly through Leo’s secretive network.

In her book Ideas with Consequences: The Federalist Society and the Conservative 

Counterrevolution, political scientist Amanda Hollis-Brusky explains how this brain 

trust creates “intellectual capital” to “frame, filter, or shape the outcome of the [judicial] 

decision-making process according to [its] own shared beliefs, principles, or values.”102 

This network is populated by a conservative “legal elite”—former Supreme Court law 

clerks, chaired law school professors, high-profile partners at top law firms, and the like.

In addition to the considerable legal skills they bring to bear, these elites serve an 

important legitimizing, normalizing, and signaling function—particularly when the 

movement seeks to advance radical doctrinal change through the courts. As 

Hollis-Brusky explains, “by working to 

legitimize a set of ideas in the legal 

profession,” the Federalist Society’s 

intellectual elite “make it easier for judicial 

decision-makers who share these beliefs to 

articulate them in their opinions without 

the fear of being perceived as illegitimate.” 

Legal scholar Steven Teles has described 

this as the “supply-and-demand relationship 

between the judges and the network.”103 

Another scholar, Jack Balkin, put it this 

way: “The more powerful and influential 

the people who are willing to make a legal 

argument, the more quickly it moves from 

‘positively loony’ to ‘positively thinkable,’ and 

ultimately to something entirely consistent

with ‘good legal craft.’”104 Ushering fringe legal ideas (that benefit donor interests) into 

the legal mainstream is a key function of the court-capture scheme.

The goal of the Federalist Society network is “political infiltration.”105 As its network 

“consolidates its power within government by placing its members in key positions as 

advisors or decision-makers, it stands to institutionalize its influence and ideas.” This 

is exactly what is happening right now in our courts, as membership in the Federalist 

Society has become all but a prerequisite for an appellate judicial nomination from 

Trump. This subsection describes just a handful of the brain trust’s powerful member 

groups:

33
THE FEDERALIST SOCIETY: PATHWAYS TO 

JUDICIAL INFLUENCE

The Federalist Society network shares personnel and sources of funding with many 

key players in and around the Supreme Court. Adapted with permission from 

Amanda Hollis-Brusky, Ideas with Consequences, page 23. Available at https://tinyurl.

com/FedSocInfluence.

The Heritage Foundation:

Founded in 1973 with funding from brewing magnate Joseph Coors,106 the Heritage 

Foundation is a think tank that describes itself as promoting “free enterprise, limited 

government, individual freedom, traditional American values, and a strong national 

defense.”107 It has been described as a “White House in waiting for the Republican 

Party” while Republicans are out of power.108 Affiliates of Heritage also testify before 

Congress “nearly 40 times a year” to push legal doctrines such as the “Unitary Executive 

Theory.”109 It also provides a platform for sitting judges to write reports opining 

on issues currently before the courts, such as appellate judge Douglas Ginsburg’s

Legislative Powers: Not Yours to Give Away, a summary of the far-right “non-delegation 

doctrine”.110

34
U.S. Chamber of Commerce Litigation Center:

In addition to directly funding the Federalist Society and 

the conservative legal movement, the U.S. Chamber of 

Commerce operates its own in-house Litigation Center, 

which files lawsuits and lobbies the Supreme Court 

through its high-volume amicus practice—just as Lewis 

Powell envisioned in 1971. It does not disclose the Litigation 

Center’s donors. Today, the Chamber is by far the Court’s 

most prolific amicus: from Chief Justice Roberts’ investiture 

in 2005 through the spring of 2016, the Chamber submitted 

373 amicus briefs (the next-highest organization had 258).114

35

Pacific Legal Foundation (PLF):

One of the oldest right-wing 

legal advocacy groups, PLF 

describes itself as “a nonprofit 

legal organization that defends 

Americans’ liberties when 

threatened by government 

overreach and abuse.”112 In 

practice, this often means 

defending corporate interests 

against environmental laws. 

PLF’s first board chairman was 

a fossil fuel executive motivated 

by “apoplectic” fury against 

environmental lawsuits.113 Its first 

offices were housed with the 

California Chamber of Commerce, 

whose president at the time was 

another oil executive defending 

against environmental litigation.114 

PLF regularly files amicus (or 

“friend of the court”) briefs 

before the Supreme Court for its 

anonymous donors, particularly 

in high-profile cases against 

government efforts to preserve 

clean air, coastal environments, 

and protected wetlands. PLF 

has served as the template for 

dozens of other anonymouslyfunded right-wing legal nonprofits, 

such as the Southeastern Legal 

Foundation and Washington Legal 

Foundation.

The Judiciary Raises 

an Alarm

In 2018, the Heritage Foundation offered “Federal Clerkship 

Training Academy,” a training program for federal judicial 

clerks. It initially required participants to pledge to keep all 

materials confidential and not to use its materials “for any 

purpose contrary to the mission or interest of the Heritage 

Foundation.”

After objections raised by Senate Democrats, the Committee 

on Codes of Conduct of the Judicial Conference issued 

Advisory Opinion 116, which cautioned that “[o]rganizations 

that were once clearly engaged in efforts to educate judges 

and lawyers have become increasingly involved in contentious 

public policy debates,” and that judges should carefully 

consider whether participation in these organizations’ 

programs is “consistent with their role in the judiciary.”

Earlier this year, still concerned about appearances of judicial 

partisanship, the Committee circulated among judges a new 

draft advisory opinion that would prohibit federal judges’ 

membership in the Federalist Society and the liberal-leaning 

American Constitution Society, while allowing judges to 

continue participating in events and seminars hosted by 

these groups. The draft was leaked to the right-wing outrage

machine—led by the Judicial Crisis Network’s Carrie Severino 

and the Wall Street Journal editorial page—and suddenly 

the First Amendment rights of “conservative” judges were 

under attack. This histrionic reaction was a clear attempt to 

intimidate the Committee away from adopting the opinion, 

which has yet to be finalized.111
The Chamber boasts a staggeringly high success 

rate, winning 70% of the time it participates in a case 

before the Roberts Court.116 The Chamber’s former 

Litigation Director, Kate Todd, currently oversees 

judicial nominations in the Trump White House.

George Mason University Law School:

George Mason University (GMU) is a public university 

in Fairfax, Virginia. Its law school—together with the 

university’s Koch-established Mercatus Center—has 

been a conduit for right-wing economic ideology 

since the 1970s.117 In 2016, GMU Law received a $10 

million donation from the Charles Koch Foundation. 

It also received a $20 million anonymous donation 

from a right-wing megadonor.118 The legal executor 

of those donations was Leonard Leo, acting on 

behalf of the BH Fund. As revealed by an 

open-government records request, conditions of 

that donation included renaming the school for

36

deceased justice and Federalist 

Society hero Antonin Scalia, 

giving a Koch loyalist control 

over all faculty hires as the 

school’s dean, and requiring 

approval by the anonymous 

grantors before that dean 

could be fired. The grants also 

mandated the preservation 

of the Center for the Study 

of the Administrative State, 

an anti-regulatory think tank 

whose head, Neomi Rao, was 

soon appointed to the Office 

of Information and Regulatory 

Affairs (OIRA) and then to the 

seat previously held by Brett 

Kavanaugh on the D.C. Circuit 

Court of Appeals.

PLF is just one in an armada of so-called “public 

interest” law firms, related through common funding 

and often appearing in lockstep as amici curiae in 

important cases. 

Others include: Alliance Defending Freedom; American 

Center for Law and Justice; American Civil Rights 

Union; Atlantic Legal Foundation; Becket Fund for 

Religious Liberty; Center for Individual Rights; Center 

for Law and Religious Freedom; Christian Legal Society; 

Eagle Forum Education & Legal Defense Fund; Honest 

Elections Project; Institute for Justice; Judicial Watch; 

Landmark Legal Foundation; Mountain States Legal 

Foundation; National Legal Foundation; National Right 

to Work Legal Defense Foundation; New England Legal 

Foundation; Pacific Justice Institute; Public Interest 

Legal Foundation; Rutherford Institute; Southeastern 

Legal Foundation; The Justice Foundation; Thomas 

More Law Center; and Washington Legal Foundation.

Taking the “Public” 

out of “Public

Interest”
Judicial Lobbying: Special-Interest “Friends of the 

Court”

In recent years, amicus curiae briefs have become a 

favored vehicle for the Federalist Society network, allowing 

it to inject its boundary-pushing theories directly into 

Supreme Court jurisprudence. Submitted by 

non-parties to a case for the purpose of providing 

information, expertise, insight, or advocacy, amicus

briefs have become a powerful judicial lobbying tool, and 

have increased in both volume and influence in the past 

decade. During the Supreme Court’s 2014 term, amici

submitted 781 amicus briefs, an increase of over 800% 

from the 1950s and a 95% increase from 1995. From 2008 

to 2013, the Supreme Court cited amicus briefs 606 times 

in 417 opinions.

Although interest groups that lobby Congress face 

stringent financial-disclosure requirements, no similar 

requirements exist for this form of judicial lobbying. 

The Supreme Court, for its part, does not require 

meaningful disclosure of amicus funding. So there is 

no way for the public to know either who the funders are 

or what those anonymous funders’ interests before the 

Court might be. Two recent examples show that many 

seemingly independent amici may be hiding common 

funders—financial ties that connect them to each other 

and to the ideological hothouse of the Federalist Society.

The first is the pending challenge to the constitutionality 

of the Consumer Financial Protection Bureau, 

Seila Law v. CFPB. The Center for Media and Democracy 

found that since 2014, 16 right-wing foundations donated 

a total of nearly $69 million to 11 groups that filed amicus

briefs in favor of scrapping the CFPB. Over the same 

period, the same 16 foundations donated over $33 million 

to the Federalist Society.119 Why does this matter? The 

challenge to the CFPB is based on the so-called “Unitary 

Executive Theory,” a once-fringe theory of constitutional 

interpretation giving the president political dominance 

over any and all expert administrative agencies. The 

Federalist Society has promoted this theory for decades. It 

could now become law.

37
Janus v. AFSCME, the 2018 decision that dealt a major blow 

to public-sector labor unions, is another textbook example 

of a coordinated judicial lobbying campaign with massive 

political implications. That case garnered over 75 amicus

briefs opposing the rights of public-sector labor unions, 

including many from groups funded by Federalist Society 

donors. Investigative reporting revealed that at least 13 of 

those “friends of the court” had been funded by the Koch 

brothers’ DonorsTrust and Donors Capital Fund.120 Similarly, 

the Lynde and Harry Bradley Foundation—a long-time 

Federalist Society donor and avowed foe of public-sector 

unions—is known to have funded 12 groups that filed 

amicus briefs in the Janus case. 

38

WHY DOES ANONYMITY MATTER?

Leonard Leo and his network take great pains to keep the identities 

of their donors secret. Why?

Some donors fear the public criticism that they or their companies 

may face for funding unpopular and self-serving positions, like 

gutting environmental protections or slamming the courthouse door 

on workers and consumers.

Others seek to cover up blatant conflicts of interest. When Justice 

Scalia passed away in 2016, he was staying in a $700-per-night room 

at a luxury hunting resort. A multi-millionaire—whose company had 

recently benefited from the Supreme Court’s decision not to hear an 

age-discrimination case against its subsidiary—was footing the bill.121

These right-wing interests get one thing right: The public wouldn’t 

stand for their judicial lobbying if it were done out in the open. 

Secrecy is a key part of their plan.
ADVISE AND CAPITULATE:

How Mitch McConnell’s Broken Senate 

Confirmation Process Helps Republicans 

and the Big-Money Donors Behind Them
Betraying the Vision of Our Founders

In the delicate balance of separated powers, the Framers carefully designed a system 

of checks and balances to guard against tyranny by ensuring that no branch would 

wield too much power. “In framing a government which is to be administered by men 

over men,” James Madison wrote in Federalist no. 51, “the great difficulty lies in this: you 

must first enable the government to control the governed; and in the next place oblige 

it to control itself.”122 The “ambition” of each branch, the Framers believed, “must be 

made to counteract ambition” of the others.

Critical to that balance was the principle that each branch would “protect the 

institutional and constitutional prerogatives of the [branch], rather than the interests 

of any political party,” as one of our Republican Senate colleagues, Mike Lee (R-UT), put 

it in 2012.123 As Senator Lee explained, among the constitutional means by which the 

Senate can assert its prerogatives is its advice-and-consent function, which includes 

its “ability to withhold its consent for a nominee, forcing the president to work with 

Congress to address that body’s concerns.” The Senate’s advice-and-consent role 

is—short of judicial impeachment—Congress’s only meaningful constitutional tool to 

check the extraordinary power inherent in life tenure.

While it didn’t always work perfectly—politics have always intertwined with judicial 

appointments, to some extent—bipartisan cooperation around judicial confirmations 

was once the prevailing norm. For most of the 20th Century, Supreme Court justices 

were confirmed by broad bipartisan majorities. Conservative stalwart and Federalist 

Society icon Antonin Scalia, for example, was confirmed unanimously in 1986. Even 

after the heated battle over the 1987 nomination of another Federalist Society hero, 

Robert Bork—whose extreme ideological views led to his rejection by a bipartisan 

58-42 vote—Senate norms of bipartisan advice and consent remained intact. Indeed, 

the following year, a Democratic-controlled Senate confirmed Reagan’s replacement 

nominee, Anthony Kennedy, by a unanimous 97-0 vote. Republicans, too, adhered 

to that principle, confirming President Clinton’s nominees, Ruth Bader Ginsburg and 

Stephen Breyer, by wide bipartisan margins. Such bipartisan comity was possible 

because presidents of both parties have historically nominated to the Supreme 

Court only those with unquestioned credentials and views broadly within the legal 

mainstream.

There has been even more cooperation, historically, for district and circuit court 

nominees. For over a century, the Senate “blue slip” process ensured that senators had 

a meaningful chance to provide input on nominations to judicial vacancies in their 

home states. This informal veto power over home-state nominees forced compromise 

and moderation when the president and home-state senators belonged to opposing 

political parties. This moderation accrued to the benefit of the independent judiciary 

and the rule of law. Nominees were often known to their local legal communities, with 

judicial nomination seen as the capstone of a distinguished legal career.

40
41

SPOTLILGHT ON NEOMI RAO

D.C. Circuit Judge and former George 

Mason University law professor Neomi 

Rao is a darling of the conservative 

legal movement, lauded for her hostility 

to public regulatory protections. The 

Dean of GMU’s law school wrote to a 

Federalist Society-affiliated funder that 

his $1.5 million donation would be needed 

to entice Rao back to GMU after she 

“dismantles the administrative state while 

serving at OIRA” (Office of Information and 

Regulatory Affairs).124

Documents obtained through state FOIA requests show that 

she led fundraising for George Mason’s Center for the Study of 

the Administrative State. The Center was funded by millions 

of dollars donated to the university from the Charles Koch 

Foundation and an anonymous donor later identified as Leonard 

Leo’s BH Fund. Emails between Leo and GMU officials reveal that 

these donations secured influence over faculty selection at GMU, 

including at the Center, where Rao was the founding director.

During her confirmation hearing before the Senate Judiciary 

Committee, Rao went to great lengths to avoid testifying 

about who funded the Center’s programs, giving affirmatively 

misleading answers—falsely testifying, for example, that her 

Center “did not receive money from an anonymous donor.”125 

In Rao’s short time on the powerful D.C. Circuit, observers of her 

extreme jurisprudence have observed that her opinions “read like 

she’s acting as Trump’s personal protector.”126
Thanks to Mitch McConnell, today all of this bipartisanship and moderation is a thing 

of the past. As Senate Judiciary Committee Democrats have documented in detail, 

Senate Republicans—from their unprecedented stonewalling of Judge Merrick 

Garland’s nomination to the U.S. Supreme Court, to their destruction of the Supreme 

Court filibuster, to their abandonment of the circuit court blue slip—have spent the 

last four years engaged in a scorched-earth judicial power grab.127 They have done so 

at significant cost to the prerogatives of their own institution, rendering meaningless 

the Senate’s advice-and-consent function and tilting the critical balance of separated 

powers away from the legislative branch. As The Economist observed in 2017, “[t]he 

federal courts look stronger for including a range of legal philosophies . . . The problem 

is that conservatives are not striving for balance, but conquest.”128

Today, in pursuit of that “conquest,” a conveyor belt of candidates ideologically vetted 

by the Federalist Society plows through the nomination and confirmation process 

without meaningful review. Confirmation has become virtually automatic—a step in an 

assembly line finely tuned to achieve political and policy results through the judiciary. 

As a result of Senate Republicans’ abdication of their constitutional duty, Trump’s 

judicial nominees are younger, less experienced, and more ideologically extreme 

than any president’s in history, and less diverse than any president’s in decades. And 

many, such as D.C. Circuit Judge Neomi Rao, are plucked directly from Leonard Leo’s 

network, sent to the bench on a mission to protect President Trump and “dismantle 

the administrative state.” 

This is all, of course, by design. It is a design conceived and executed in the service 

of the Republican Party’s ultra-wealthy, anti-government donors. These donors also 

drive the Trump Administration’s aggressive deregulatory agenda, often through 

the placement of industry cronies—like former EPA Administrator Scott Pruitt—at 

the heads of important regulatory agencies. The efforts converge. In describing the 

Trump Administration’s efforts to nominate ideologically vetted Federalist Society 

members to the bench, former White House Counsel (and Federalist Society member) 

Donald McGahn put it plainly: “There is a coherent plan here where actually the judicial 

selection and the deregulatory effort are really the flip side of the same coin.”129 In truth, 

the plan is best described not as the two “flip side[s]” of Mr. McGahn’s “coin,” but as 

three legs of a stool: deregulation and judicial selection are the first two legs, and donor 

interests are the third. All three reinforce each other and provide critical support for the 

persistent movement to undermine our government.

42
In March 2020, Mitch McConnell delayed the largest COVID-19 relief

bill (the CARES Act), choosing instead to fly to Kentucky with Brett

Kavanaugh to celebrate Justin Walker’s investiture to the Western

District of Kentucky. Walker’s investiture speech was a partisan

call-to-arms, comparing Brett Kavanaugh to St. Paul and

castigating “critics who call us terrifying and who describe us as

deplorable,” a reference to a statement by Democratic nominee

Hillary Clinton during the 2016 Presidential campaign. Walker also

joined over 200 conservative judges in a letter denouncing the

Judicial Conference’s draft ethics opinion prohibiting judicial

membership in the Federalist Society, rallying to the organization’s

defense. Walker has been particularly vocal about his opposition to

the Affordable Care Act, calling the Supreme Court decision

upholding the law “indefensible.”

In April, after fewer than six months on the district court bench, the

GOP rewarded this loyal foot soldier with a nomination to a lifetime

seat on the D.C. Circuit, the nation’s second most powerful court.

Justin Walker, at just 37 years old, was

confirmed in 2019 to a federal district

court in Kentucky. He had never tried a

case, and the nonpartisan American Bar

Association rated him “not qualified” for

the bench. What were his qualifications?

Political loyalty to Mitch McConnell,

nearly 100 radio and TV appearances

defending his friend Brett Kavanaugh

against sexual assault allegations, and

flag-waving allegiance to the Federalist

Society and its GOP backers.

SPOT L IGHT ON JUST IN WALKER

43

SPOTLILGHT ON JUSTIN WALKER

Justin Walker, at just 37 years old, was 

confirmed in 2019 to a federal district 

court in Kentucky. He had never tried 

a case, and the nonpartisan American 

Bar Association rated him “not 

qualified” for the bench. What were

his qualifications? Political loyalty 

to Mitch McConnell, nearly 100 radio 

and TV appearances defending his 

friend Brett Kavanaugh against sexual 

assault allegations, and flag-waving 

allegiance to the Federalist Society 

and its GOP backers.

In March 2020, Mitch McConnell delayed the largest COVID-19 

relief bill (the CARES Act), choosing instead to fly to Kentucky 

with Brett Kavanaugh to celebrate Justin Walker’s investiture 

to the Western District of Kentucky. Walker’s investiture 

speech was a partisan call-to-arms, comparing Brett Kavanaugh 

to St. Paul and castigating “critics who call us terrifying and 

who describe us as deplorable,” a reference to a statement by 

Democratic nominee Hillary Clinton during the 2016 Presidential 

campaign.130 Walker also joined over 200 conservative judges in 

a letter denouncing the Judicial Conference’s draft ethics opinion 

prohibiting judicial membership in the Federalist Society, rallying 

to the organization’s defense. Walker has been particularly 

vocal about his opposition to the Affordable Care Act, calling the 

Supreme Court decision upholding the law “indefensible.”131

In April, after fewer than six months on the district court bench, 

the GOP rewarded this loyal foot soldier with a nomination to 

a lifetime seat on the D.C. Circuit, the nation’s second most 

powerful court.
Converting the Senate into a Legislative Graveyard

During the 116th Congress, the Senate is dedicated to confirming judge after judge 

after judge. Confirming ideologically vetted judges in record numbers is a prize so 

valuable to Senate Republicans that they’ve all but abandoned their legislative role to 

do it.

More than 350 bills passed by the 

Democratic majority in the House of 

Representatives—nearly 90% of which 

received bipartisan support—now 

gather dust in Mitch McConnell’s 

legislative graveyard, without so 

much as a hearing. Meanwhile, the 

Senate has been running a conveyor 

belt for overwhelmingly white, 

overwhelmingly male, right-wing 

judges. Congressional Quarterly

described this “Consent Machine” 

in 2018, observing that “Senate 

Republicans are steamrolling the 

process and approving federal judges 

at a record pace.”132 And now, running 

out of court vacancies, McConnell 

is making direct overtures to sitting 

judges, pressuring them to retire 

to make room for Trump’s younger, 

more extreme replacements.133

A recent New York Times investigation 

into Trump’s appointments to the 

powerful federal appellate courts put 

this reality in stark relief: “the Trump 

class of appellate judges, much 

like the president himself, breaks 

significantly with the norms set by 

his Democratic and Republican 

predecessors, Barack Obama and 

George W. Bush.”134 Trump’s 51 

confirmed appellate judges comprise 

nearly 30% of the entire appellate 

bench. Two-thirds of those judges are white men (compared to 31% of America). 

“Thirty-three percent were under 45 when appointed, compared with just five percent 

under [President] Obama and 19 percent under [President] Bush.”135 

44
Thanks to Mitch McConnell’s obstruction of President Obama’s nominees in the years 

before Trump took office, more than a third of Trump’s appellate appointees have 

filled seats previously occupied by Democratic appointees. And compared to judges 

appointed by previous presidents, Trump’s appellate judges “were more openly 

engaged in causes important to Republicans, such as opposition to gay marriage and 

to government funding for abortion.” Not surprisingly, they were “notably more likely 

than their peers on the bench to agree with Republican appointees and to disagree 

with Democratic appointees—suggesting they are more consistently conservative.” 

They are, to put it plainly, politicians in robes.

45
CONCLUSION

So how should we think about all this?

You have to step back in time. Republicans have spent 50 years planning to pack 

our judicial system with far-right activist judges and to influence it with a right-wing 

ideology. From the Powell memo of the 1970s to the Trump era, there has been a 

consistent, secretive, relentless, and well-funded effort. The project has created an 

entire apparatus of front groups focused on influencing the courts and controlling 

judicial selection.

You have to step back in distance and look at the pattern of decisions throughout 

Chief Justice Roberts’s tenure. It’s not just the worst, most notorious decisions; the 

GOP’s Supreme Court has run up a record of 80 decisions, all of which share these 

characteristics:

• They were decided 5-4 (even though larger majorities protect the credibility and 

standing of the Court).

• They were decided 5-4 on a partisan basis with no Democratic appointee 

joining the bare majority (a divide that undermines long-term confidence in the 

Court as an institution, though the Roberts Five don’t seem to mind).

• They were civil cases in which big Republican donor interests were plainly 

implicated.

• And they were decided 80-0 in favor of the big Republican donor interests 

(a pattern lawyers would eagerly bring before a jury as evidence of bias in a 

discrimination case).

You have to step back and “follow the money.” The extent of the GOP’s darkmoney court-packing network is astounding. Hundreds of millions of dollars of 

corporate and special-interest money flow into efforts to get the right results from the 

federal courts. This money flows into the group at the center of the judicial-selection 

effort, the Federalist Society. It funds the entity that runs political campaigns for 

nominees’ confirmation, the Judicial Crisis Network. It funds litigation groups, like the 

Pacific Legal Foundation, that bring strategically selected cases to the Supreme Court. 

It funds an array of coordinated “amicus curiae” groups, who file in flotillas before 

the Court. It funds political power-hitters like the U.S. Chamber of Commerce. And it 

funds ideological hothouses like GMU’s Mercatus Center where right-wing theories are 

incubated and propagated.

You have to understand who is behind this effort: who are the big funders of the 

judge-pickers? Who is behind amicus briefs? Who funds the litigation groups, and the 

political campaigns for judicial nominees? Is it not likely the same big donors behind 

all of it? All signs indicate that yes, it is.

46
You have to look around, and consider why the Senate has been so badly weakened 

to clear a path for judicial nominees, and why so much money is dedicated to pursuing 

this scheme, and why it mattered enough to the people behind it to invest decades of 

effort.

And you have to step back and understand, what is the goal? Packing courts with 

narrow-minded, activist judges who will distort our Constitution has a purpose. The 

purpose is that the judges will reliably vote in favor of Republican Party donor interests; 

gut vital public-safety and environmental protections; shield predatory corporations 

from accountability; disable the civil jury; dismantle civil rights; erode the separation 

of church and state; eliminate reproductive rights; rig democratic institutions to favor 

Republican interests; and impose regressive policies so deeply unpopular with the 

American people that even Republicans won’t vote for them in Congress. Americans 

are already seeing the devastating results of this transformation—and it’s only just 

gotten underway. 

Americans have increasingly come to understand the culture of corruption that is 

undermining our politics. Yet too few people realize that these same corrupting forces 

are now hard at work to influence and capture our courts. Over the coming months, 

Democrats in the Senate will work to change that. We will shed light on the corruption 

and conflicts of interest now rampant around the Trump judiciary. We will document 

the real-world impact of the courts’ increasingly activist decisions. And we will propose 

legislative reforms to clean up this mess. 

It is time for America to reckon with the reality that our courts are being captured. It is 

time for Americans to understand the extent of the apparatus pursuing this capture, 

and to understand who is behind the apparatus. It’s long past time to look behind the 

curtain. Nothing less than our democracy is at stake.

47
48

1 Lewis Powell, Attack on American Free Enterprise System, (Aug. 23, 1971), archived at Washington 

and Lee University School of Law, https://scholarlycommons.law.wlu.edu/powellmemo/1/. 

2 Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative 

Counterrevolution, Oxford University Press (2015) (citing George W. Hicks Jr., The Conservative 

Influence Of the Federalist Society on the Harvard Law School Student Body, 29 HARV. J. L. PUB. 

POL’Y 625-717 (2006)). 

3 See e.g., The Federalist Society Contributors, available at https://fedsoc.org/contributors (“The 

Federalist Society takes no position on particular legal or public policy issues.”).

4 Jason Zengerle, How the Trump Administration is Remaking the Courts, NY TIMES (Aug. 22, 2018), 

available at https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html

5 Mark Sherman, Roberts, Trump Spar in Extraordinary Scrap Over Judges, ASSOCIATED PRESS (Nov. 

21, 2018), available at https://apnews.com/c4b34f9639e141069c08cf1e3deb6b84.

6 For the first 73 cases, from Chief Justice Roberts’ swearing-in through the term ending in summer 

2018, see Sen. Sheldon Whitehouse, “A Right-Wing Rout: What the ‘Roberts Five’ Decisions Tell Us 

About the Integrity of Today’s Supreme Court,” American Constitution Society issue brief, Apr. 4, 

2019, Appendix, archived at https://www.acslaw.org/wp-content/uploads/2019/04/Captured-CourtWhitehouse-IB-Final.pdf. Seven more decisions from the term that ended in summer 2019 bring the 

count up to 80: Nielsen v. Preap; Bucklew v. Precythe; Lamps Plus Inc. v. Varela; Franchise Tax Board 

of California v. Hyatt; Manhattan Community Access Corp. v. Halleck; Knick v. Township of Scott; and 

Rucho v. Common Cause (jointly decided with Benisek v. Lamone; we count the joint ruling in Rucho

and Benisek as one decision). The Court continues to issue 5-4 partisan decisions in the ongoing 

term and future reports will update this count after the current term concludes in June.

7 Robert O’Harrow Jr. & Shawn Boburg, A Conservative Activist’s Behind-the-Scenes Campaign to 

Remake the Nation’s Courts, WASH. POST (May 21, 2019), available at https://www.washingtonpost.

com/graphics/2019/investigations/leonard-leo-federalists-society-courts/. 

8 Confirmation hearing of John G. Roberts Jr. for Chief Justice of the United States, testimony before 

Senate Judiciary Committee, Sep. 12, 2005, archived at https://www.judiciary.senate.gov/imo/media/

doc/GPO-CHRG-ROBERTS.pdf.

9 Hon. Lynn Adelman, The Roberts Court’s Assault on Democracy, HARV. L. POL’Y REV. (forthcoming) 

(posted Mar. 6, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3540318

10 Dahlia Lithwick, Former Judge Resigns From the Supreme Court Bar, Slate (Mar. 13, 2020). Experts 

who have watched the Court for years are making similar observations. See, e.g., Jeffrey Toobin, No 

More Mr. Nice Guy, THE NEW YORKER (May 18, 2009) (“Roberts has served the interests . . . of the 

contemporary Republican Party.”); Linda Greenhouse, Polar Vision, NY TIMES (May 28, 2014) (“. . .the 

Republican-appointed majority is committed to harnessing the Supreme Court to an ideological 

agenda.”); Norm Ornstein, Why the Supreme Court Needs Term Limits, THE ATLANTIC (May 22, 2014) 

(“. . .the new reality of today’s Supreme Court: It is polarized along partisan lines in a way that parallels 

other political institutions and the rest of society, in a fashion we have never seen.”).

11 See, e.g., John Pfaff, The Supreme Court Justices Need Fact-Checkers, NY TIMES (Oct. 18, 2017) (“[In] 

Shelby County v. Holder, . . . Justice John G. Roberts Jr. . . . misinterpreted how the Census Bureau 

reports race and ethnicity data and wrongly suggested that registration gaps between minorities 

and whites had shrunk significantly”); Judge Richard A. Posner, The Supreme Court and the Voting 

Rights Act: Striking down the law is all about conservatives’ imagination, SLATE (June 26, 2013) 

(“Shelby County v. Holder . . . struck down a key part of the Voting Rights Act . . . as violating the 

‘fundamental principle of equal sovereignty’ of the states. This is a principle of constitutional law 

of which I have never heard—for the excellent reason that . . . there is no such principle”); Jeffrey 

Rosen, “Roberts versus Roberts,” THE NEW REPUBLIC (Mar. 2, 2010) (“Roberts didn’t compromise on 

Citizens United . . . [Justice Anthony] Kennedy [wrote] a sweeping opinion that mischaracterized the 

landmark precedent Buckley v. Valeo by suggesting that it was concerned only about quid pro quo 

corruption rather than less explicit forms of undue influence on the electoral system. (Congress had 

come to the opposite conclusion in extensive fact-finding that Kennedy ignored.)”).

ENDNOTES
49

12 The Chamber Of Commerce Has Been Transformed Into One Of The Most Powerful Political 

Forces In Washington, THE ECONOMIST, (Apr. 21, 2012), available at https://www.economist.com/

business/2012/04/21/the-chamber-of-secrets.

13 See supra note 1. 

14 David Vogel, Fluctuating Fortunes: The Political Power of Business in America, at 197 (1989). 

15 Alliance for Justice, Justice for Sale: Shortchanging the Public Interest for Private Gain (1993), at 3. 

16 Calvin TerBeek, The Kavanaugh Nomination & Originalism as “Counterrevolutionary,” A HOUSE 

DIVIDED (Sep. 26, 2018), available at https://ahousedividedapd.com/2018/09/26/the-kavanaughnomination-originalism-as-counterrevolutionary/.

17 Id. 

18 Id.

19 Shelby Cty., Ala. v. Holder, 570 U.S. 529 (2013); Citizens United v. Fed. Election Comm’n, 558 U.S. 310 

(2010); Janus v. Am. Fed’n of State, Cty., & Mun. Emps., 138 S.Ct. 2448 (2018); D.C. v. Heller, 554 U.S. 570 

(2008). 

20 Husted v. A. Philip Randolph Institute, 138 S.Ct. 1833 (2018). 

21 Rucho v. Common Cause, 139 S.Ct. 2484 (2019). 

22 Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018). 

23 AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). 

24 Knox v. Serv. Emps. Int’l Union Local 1000, 567 U.S. 298 (2012). 

25 Harris v. Quinn, 573 U.S. 616 (2014). 

26 Janus v. American Federation of State, County, and Municipal Employees, 138 S.Ct. 2448 (2018). 

27 Michigan v. Envtl. Prot. Agency, 135 S.Ct. 2699 (2015). 

28 Summers v. Earth Island Institute, 555 U.S. 488 (2009). 

29 Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007). 

30 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

31 Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).

32 District of Columbia v. Heller, 554 U.S. 570 (2008).

33 McDonald v. Chicago, 561 U.S. 742 (2010). 

34 Gonzales v. Carhart, 550 U.S. 124 (2007). 

35 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682¬ (2014). 

36 Joe Hagan, The Coming Tsunami of Slime, NY MAG. (Jan. 20, 2012), available at https://nymag.com/

news/features/negative-campaigning-2012-1/. 

37 Joan Biskupic, The Inside Story of How John Roberts Negotiated to Save Obamacare, CNN (Mar. 25, 

2019), available at https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.

html.

38 See supra note 11.

39 Amanda Hollis-Brusky, Helping Ideas Have Consequences: Political and Intellectual Investment in 

the Unitary Executive Theory, 1981-2000, 89 DENV. U. L. REV. 197, 198 (2011) (“The UET... is but the latest 

in a long line of political instruments presidents have used to loosen the constraints on presidential 

power.”). 

40 See Michael Kruse, The Weekend at Yale that Changed American Politics, POLITICO (Oct. 2018), 

available at https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-historyconservative-law-court-219608. 

41 See Hollis-Brusky (citing Hicks), note 2 supra.
50

42 Joan Biskupic, Guns: A Second (Amendment) Look, WASH. POST. (May 10, 1995), available at https://

www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/courtguns051095.htm. 

43 The Federalist Society, About Us, available at https://fedsoc.org/about-us.

44 See supra note 3. 

45 See O’Harrow & Boburg, supra note 7. 

46 Don McGahn, Federalist Society National Lawyers’ Convention, (Nov. 16, 2017), available at https://

www.c-span.org/video/?437462-8/2017-national-lawyers-convention-white-house-counsel-mcgahn

(“Our opponents of judicial nominees frequently claim the president has outsourced his selection of 

judges. That is completely false. I have been a member of the Federalist Society since law school. Still 

am. So, frankly, it seems like it’s been insourced.”). 

47 Id.

48 David Montgomery, Conquerors of the Courts, WASH. POST MAG. (Jan. 2, 2019), available at https://

www.washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the-courts/

49 David Savage, Leonard Leo of the Federalist Society is the man you want to see if you aspire to the 

Supreme Court, LOS ANGELES TIMES (Jul. 6, 2018), available at https://www.latimes.com/politics/la-napol-leo-court-search-20180706-story.html.

50 Pat Robertson Interviews Donald Trump, The Christian Broadcasting Network (Oct. 24, 2016), available 

at https://factba.se/transcript/donald-trump-interview-pat-robertson-cbn-october-24-2016.

51 Lawrence Mower, DeSantis, new Florida judges are literally on the same page when it comes to law, 

MIAMI HERALD (Feb. 3, 2020), available at https://www.miamiherald.com/news/politics-government/

state-politics/article239926748.html.

52 See People For the American Way, Confirmed Judges, Confirmed Fears: The Continuing Harm Caused 

by Confirmed Trump Federal Judges (April 2019), available at https://www.pfaw.org/report/confirmedjudges-confirmed-fears-the-devastating-harm-already-done-by-confirmed-trump-federal-judges/.

53 See O’Harrow & Boburg, supra note 7.

54 Ryan Lovelace, Trump adviser Leonard Leo details plans to overhaul judiciary, WASH. EXAMINER (May 

12, 2017), available at https://www.washingtonexaminer.com/trump-adviser-leonard-leo-details-plansto-overhaul-judiciary. 

55 See O’Harrow & Boburg, supra note 7.

56 Dalton Bennett, Jesse Mesner-Hage, and Jorge Ribas, Pathways to power: The conservative 

movement transforming America’s courts, WASH. POST (May 21, 2019) available at https://www.

washingtonpost.com/video/national/pathways-to-power-the-conservative-movement-transformingamericas-courts/2019/05/21/e1465572-549f-466d-9c09-9bafc1665a71_video.html.

57 Id. 

58 Jonathan Swan and Alayna Treene, Leonard Leo to shape new conservative network, AXIOS (Jan. 7, 

2020), available at https://www.axios.com/leonard-leo-crc-advisors-federalist-society-50d4d844-19a3-

4eab-af2b-7b74f1617d1c.html. 

59 Id.

60 See O’Harrow & Boburg, supra note 7.

61 See, e.g., Top supporters of Federalist Society for Law and Public Policy Studies, Conservative 

Transparency, http://conservativetransparency.org/top/?recipient=842&yr=&yr1=&yr2=&submit= (data 

compiled from IRS Form 990 and other sources). Through 2014, the Koch-controlled Claude R. Lambe 

Charitable Foundation (now defunct) gave the Federalist Society at least $1,956,500, and the Charles 

Koch Foundation gave at least $1,405,000.

62 Brian Schwartz, A top outside advisor to Trump secretly assures Koch donors that a lot more 

conservative judges are on the way, CNBC (Aug. 2, 2018), available at https://www.cnbc.

com/2018/08/02/leonard-leo-assures-koch-donors-about-trump-judiciary-picks.html.

63 Id.
51

64 The Center for Media and Democracy’s SourceWatch, Scaife Foundations, available at https://www.

sourcewatch.org/index.php?title=Scaife_Foundations. 

65 Bradley Foundation, Past Winners: The Federalist Society, available at https://www.bradleyfdn.org/

prizes/winners/the-federalist-society.

66 The Center for Media and Democracy’s SourceWatch, The Lynde and Harry Bradley Foundation, 

available at https://www.sourcewatch.org/index.php/Lynde_and_Harry_Bradley_Foundation.

67 Public Citizen, Chamber Watch, available at https://chamberofcommercewatch.org/

challengingthechamber/politicalspending/.

68 The U.S. Chamber of Commerce, About Us, available at https://www.uschamber.com/about/aboutthe-us-chamber-of-commerce.

69 Eric Lipton, Mike McIntire and Don Van Natta Jr., “Top Corporations Aid U.S. Chamber of Commerce 

Campaign,” NY TIMES (Oct. 21, 2010) https://www.nytimes.com/2010/10/22/us/politics/22chamber.html.

70 Constitutional Accountability Center, Corporations and the Supreme Court, available at https://www.

theusconstitution.org/series/chamber-study/.

71 U.S. Chamber of Commerce, Key Vote Letter Supporting the Nomination of Brett Kavanaugh to 

United States Supreme Court, (Aug. 1, 2018), available at https://www.uschamber.com/letter/key-voteletter-supporting-the-nomination-of-brett-kavanaugh-united-states-supreme-court. 

72 Andy Kroll, Exposed: The Dark-Money ATM of the Conservative Movement, MOTHER JONES (Feb. 5, 

2013), available at https://www.motherjones.com/politics/2013/02/donors-trust-donor-capital-funddark-money-koch-bradley-devos/. 

73 Anne Nelson, Shadow Network: Media, Money, and the Secret Hub of the Radical Right (2019), at 140 

(“In 1999 the Kochs helped to launch a new consortium called the DonorsTrust, with Whitney Ball in 

charge.”).

74 David Armiak, DonorsTrust Bankrolled Right-Wing Judicial Appointments, Trump’s Acting AG, and 

Lobbying Front Groups in 2017, PR WATCH (Feb. 19, 2019), available at https://www.prwatch.org/

news/2019/02/13449/donorstrust-bankrolled-right-wing-judicial-appointments-trumps-acting-agand. 

75 Swan and Treene, supra note 58.

76 Id.

77 Id.

78 Anna Massoglia and Andrew Perez, Secretive conservative legal group funded by $17 million mystery 

donor before Kavanaugh fight, OPENSECRETS (May 17, 2019) available at https://www.opensecrets.

org/news/2019/05/dark-money-group-funded-by-17million-mystery-donor-before-kavanaugh/. 

79 Anna Massoglia, An influential dark money group turns off the lights for the last time, OPENSECRETS 

(May 23, 2019), available at https://www.opensecrets.org/news/2019/05/an-influential-dark-moneygroup-turns-off-the-lights-for-the-last-time/.

80 Id.

81 Robert Maguire, $1 million mystery gift to Trump inauguration traced to conservative legal activists, 

OPENSECRETS (May 14, 2018), available at https://www.opensecrets.org/news/2018/05/mystery-gift-totrump-inauguration-from-conservative-activists/. 

82 See O’Harrow & Boburg, supra note 7.

83 See Bennett, Mesner-Hage, and Ribas, supra note 56. 

84 See O’Harrow & Boburg, supra note 7.

85 Id. 

86 Id.

87 Id. 

88 Id. 

89 Id. 
52

90 The Judicial Crisis Network, About, available at https://judicialnetwork.com/about-duplicate/. 

91 Public Inspection Files of the Federal Communications Commission, available at https://publicfiles.

fcc.gov/find/%22judicial%20crisis%20network%22/page-offset-0/order-best-match/filter-[]/#files .

92 See O’Harrow and Boburg, supra note 7.

93 The Judicial Crisis Network, Judicial Crisis Network Launches $10 Million Campaign to Preserve 

Justice Scalia’s Legacy, Support President-Elect Trump Nominee (Jan. 9, 2017), available at https://

judicialnetwork.com/jcn-press-release/judicial-crisis-network-launches-10-million-campaignpreserve-justice-scalias-legacy-support-president-elect-trump-nominee/. 

94 Id. 

95 See Anna Massoglia & Andrew Perez, Secretive Conservative Legal Group Funded by $17 Million 

Mystery Donor Before Kavanaugh Fight, OPENSECRETS (May 17, 2019); see also Margaret SessaHawkins & Andrew Perez, Dark Money Group Received Massive Donation in Fight Against Obama’s 

Supreme Court Nominee, MAPLIGHT (Oct. 24, 2017) (reporting a “single $17.9 million contribution 

from a mystery donor”). 

96 Ronn Blitzer, Mystery Donor Gave $28 Million to Help Get Gorsuch on Supreme Court, LAW AND 

CRIME (Nov. 22, 2017), available at https://lawandcrime.com/politics/mystery-donor-gave-28-millionto-help-get-gorsuch-on-supreme-court/. 

97 See Judicial Crisis Network, supra note 90.

98 See Swan and Treene, supra note 58. 

99 Barbara Spindel, Conservatism as the ‘Sensible Middle’: The Independent Women’s Forum, Politics, 

and the Media, 99-125, SOCIAL TEXT (2003), available at https://muse.jhu.edu/article/50303/pdf.

100 O’Harrow & Boburg, supra note 7.

101 Joan Walsh, Meet the ‘Feminists’ Doing the Koch Brothers’ Dirty Work, THE NATION (Aug. 18, 2016), 

available at https://www.thenation.com/article/archive/meet-the-feminists-doing-the-koch-brothersdirty-work/. 

102 See Hollis-Brusky, supra note 2 at 15. 

103 David Montgomery, Conquerors of the Courts, WASH. POST, (Jan. 2, 2019), available at https://www.

washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the-courts/. 

104 See Hollis-Brusky, supra note 2 at 13. 

105 Id.

106 See Associated Press, Brewery magnate Joseph Coors dies, USA TODAY (Mar. 17, 2003), available at

https://usatoday30.usatoday.com/money/industries/food/2003-03-17-coors_x.htm.

107 The Heritage Foundation, About, available at https://www.heritage.org/about-heritage/mission.

108 David Bauder, Fox snaps up GOP hopefuls for 2012, ASSOCIATED PRESS (May 5, 2010), available at 

https://www.telegram.com/article/20100505/NEWS/5050438?template=ampart. 

109 See supra note 107. 

110 The Hon. Douglas H. Ginsburg, Legislative Powers: Not Yours to Give Away, (Jan. 6, 2011), available at 

https://www.heritage.org/the-constitution/report/legislative-powers-not-yours-give-away. 

111 See Adam Liptak, Conservative Heritage Foundation Revives Training Academy for Judicial Clerks, 

NY TIMES (Nov. 21, 2018), available at https://www.nytimes.com/2018/11/21/us/politics/heritagefoundation-clerks-training-academy.html; Committee on Codes of Conduct Advisory Opinion No. 116: 

Participation in Educational Seminars Sponsored by Research Institutes, Think Tanks, Associations, 

Public Interest Groups, or Other Organizations Engaged in Public Policy Debates (Feb. 2019), 

available at 245 https://www.uscourts.gov/sites/default/files/guide-vol02b-ch02-2019_final.pdf; Carrie 

Campbell Severino, The Judicial Campaign to Silence the Federalist Society (Part 1), NATIONAL 

REVIEW (Jan. 23, 2020) available at https://www.nationalreview.com/bench-memos/judicialcampaign-to-silence-federalist-society-part-1/); Wall Street Journal Editorial Board, Judicial Political 

Mischief, WALL STREET JOURNAL (Jan. 21, 2020), available at https://www.wsj.com/articles/judicialpolitical-mischief-11579652574.
53

112 The Pacific Legal Foundation, About, available at https://pacificlegal.org/about/.

113 Jefferson Decker, The Other Rights Revolution (2016), at 57. 

114 Oliver A. Houck, With Charity for All, 93 YALE L.J. 1415, 1460 (1984). 

115 Dr. Adam Feldman, The Most Effective Friends of the Court, EMPIRICAL SCOTUS (May 11, 2016), 

available at https://empiricalscotus.com/2016/05/11/the-most-effective-friends-of-the-court/.

116 See Constitutional Accountability Center, supra note 70. 

117 See generally, Nancy MacLean, Democracy in Chains (2017); see also Jane Mayer, Covert Operations, 

THE NEW YORKER (Aug. 30, 2010), available at https://www.newyorker.com/magazine/2010/08/30/

covert-operations. (“In the mid-eighties, the Kochs provided millions of dollars to George Mason 

University, in Arlington, Virginia, to set up another think tank. Now known as the Mercatus Center, 

it promotes itself as ‘the world’s premier university source for market-oriented ideas—bridging the 

gap between academic ideas and real-world problems.” Financial records show that the Koch family 

foundations have contributed more than thirty million dollars to George Mason, much of which has 

gone to the Mercatus Center, a nonprofit organization.”)

118 UnKoch My Campus, Update to Report on “The Federalist Society’s Takeover of George Mason 

University’s Public Law School, (Dec. 20, 2018), available at http://www.unkochmycampus.org/dec-20-

2018-donor-control-at-gmu-update. 

119 Alex Kotch, Conservative Foundations Finance Push to Kill the CFPB, CENTER FOR MEDIA AND 

DEMOCRACY (Feb. 13, 2020), available at https://www.exposedbycmd.org/2020/02/13/conservativefoundations-finance-push-kill-cfpb/.

120 Mary Bottari, Behind Janus: Documents Reveal Decade-Long Plot to Kill Public-Sector Unions. IN 

THESE TIMES (Feb. 22, 2018), available at https://inthesetimes.com/features/janus_supreme_court_

unions_investigation.html. 

121 See Eric Lipton, Scalia Took Dozens of Trips Funded by Private Sponsors, NY TIMES (Feb. 26, 2016), 

available at https://www.nytimes.com/2016/02/27/us/politics/scalia-led-court-in-taking-trips-fundedby-private-sponsors.html.

122 James Madison, The Federalist Papers (1787), No. 51.

123 Sen. Mike Lee, The Constitution is More Important Than Partisanship (Feb 9, 2012), available at 

https://www.lee.senate.gov/public/index.cfm/blog?ID=B1FCEBE8-F685-45F1-9ACF-5C56532B9D5D. 

124 Letter from Henry N. Butler to Federalist Society Board Member C. Boyden Gray (May 9, 2017), quoted 

in Allison Pienta, Update to Report on “The Federalist Society’s Takeover of George Mason Law 

School”, UnKochMyCampus (Dec. 2018).

125 Responses to Questions for the Record by Neomi Rao, Feb. 2019, archived at https://www.judiciary 

senate.gov/imo/media/doc/Rao%20Responses%20to%20QFRs.pdf.

126 Ian Millhiser, Trump judge lays out an aggressive plan to protect Trump from congressional 

oversight, VOX (Mar. 11, 2020), available at https://www.vox.com/2020/3/11/21173437/trump-judgeneomi-rao-mueller-grand-jury-dc-circuit.

127 Senate Judiciary Committee Minority Members Report (May 10, 2018), available at https://

www.feinstein.senate.gov/public/_cache/files/b/7/b783e2d9-38be-4798-a7fb-e89ff11fd47c/

A233636E649CB9CD98B0555FB3D18C88.judiciary-dems-final-judges-report-5.10.18-.pdf. 

128 “Lexington”, Conservative lawyers are among the president’s biggest enablers, THE ECONOMIST 

(Nov. 23, 2017), available at https://www.economist.com/united-states/2017/11/23/conservative-lawyersare-among-the-presidents-biggest-enablers. 

129 Robert Barnes & Steven Mufson, White House Counts on Kavanaugh in Battle Against 

‘Administrative State’, WASH. POST (Aug. 12, 2018), available at https://www.washingtonpost.

com/politics/courts_law/brett-kavanaugh-and-the-end-of-the-regulatory-state-as-we-knowit/2018/08/12/22649a04-9bdc-11e8-8d5e-c6c594024954_story.html
130 Todd Ruger, Judge Justin Walker is a window into McConnell’s sway on federal courts, CQ ROLL 

CALL (Apr. 17, 2020), available at https://www.rollcall.com/2020/04/17/judge-justin-walker-is-awindow-into-mcconnells-sway-on-federal-courts/.

131 Id.

132 Todd Ruger, Consent Machine: ‘Advice’ Dwindles in the GOP’s Rush for Judges, CONGRESSIONAL 

QUARTERLY (Jan. 18, 2018), available at https://www.rollcall.com/2018/01/18/senate-republicanssteamroll-judicial-process/.

133 Carl Hulse, McConnell Has A Request for Veteran Federal Judges: Please Quit, NY TIMES (Mar. 16, 

2020), available at https://www.nytimes.com/2020/03/16/us/politics/mcconnell-judges-republicans.

html.

134 Rebecca Ruiz et al., These Judges Are Shifting the Appeals Courts to the Right, NY TIMES (Mar. 14, 

2020), available at https://www.nytimes.com/2020/03/14/us/trump-appeals-court-takeaways.html. 

135 Id.

54