Weeks after the extremist Supreme Court majority drove a truck over the rule of law in Trump v. United States, and with all that has happened since, friends still ask, “How do you explain this decision? How could these Republican-appointed justices do something like this?”
The end-of-term Trump immunity decision forever ended any claim by the far right majority justices to belief in checks and balances on presidential power. New polling finds six in ten Americans disapproving the Court’s job performance. So the continuing questions are more than warranted.
For the answers, pay attention to Leonard Leo. He is the judicial kingmaker responsible for the list from which Trump selected Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Leo has shaped this Court and acted effectively to keep its Republican justices from abandoning his – and their – sectarian-right vision of America.
Examine what he says, put it together with the Trump immunity decision, and you can discern the motivating force behind it. The extremist justices are seizing a moment that Leo has prepared them for – a moment to put back in the tube a forward looking, equal opportunity America where church and state are separate. Within their grasp is a presidential dictatorship by which they can realize the rightwing, religious future-state that they perceive as the natural law of the universe.
The immunity decision is the booster rocket for a bloodless cultural coup. Leo made himself rocket fuel, the sophisticated corruption-meister of radical Supreme Court justices.
He was once simply a leader of the hyper-conservative Federalist Society, the backroom nominator of right wing judges. He is now the deep pocketed central operative whose political vision reportedly shares religious roots with those of Steve Bannon. But Leo, instead of landing himself in jail like Bannon, landed a cool $1.6 billion gift from secretive Chicago billionaire Barre Seid.
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Here’s how ProPublica described the current cultural conditions that Leo seeks to overturn:
[Leo] sees a nation plagued with ills . . . like environmental, social and governance, or ESG, policies sweeping corporate America. A member of the Roman Catholic Church, he intends to wage a broader cultural war against . . . “vile and immoral current-day barbarians, secularists and bigots” who demonize people of faith and move society further from its “natural order.”
Per ProPublica, Leo sees conservative Catholicism as “under threat” from “secularist enemies,” the “unchurched . . . whom the devil can easily take advantage of” and who “seek to drive us from the communities they want to dominate.”
It’s not Catholicism under attack; Leo and his allies are the ones attacking the framer’s foundational principle of separating Church and state. The long sad tale of state-sponsored religious discrimination in Europe taught the founders the danger to individual belief of sectarian zeal inhabiting the halls of government.
Perhaps you hear the not-so-faint echoes of Samuel Alito’s victimhood and loathing.
Check out the history here.
Back in 2005, Leo’s Judicial Confirmation Network ran ads in support of Alito when President Bush chose him for the Court over Judge Michael Luttig. Sounding like Leo, Alito has sarcastically lamented that “you had better behave yourself like a good secular citizen” just to go outside. Also recall his expressed belief last month to undercover reporter Lauren Windsor that “the U.S. should return to a ‘place of godliness.’”
Here’s a stunning parallel: Martha-Ann Alito, the justice’s wife with a penchant for flag flying, told the same reporter that she (Mrs. Alito) had hoisted a “Sacred Heart of Jesus” flag at her vacation home this summer. Why? Because she “has to look across the lagoon at the Pride flag for the next month.” Compare that to ProPublica’s report that after Alito’s majority opinion overturning Roe v. Wade, “protesters got permission from Leo’s neighbor to hang a pink fist flag across from his [Maine retreat, and] Leo displayed several different flags with Catholic iconography outside his house.”
You’d almost think there was some kind of not-so-vast rightwing religious conspiracy among the radical right religious power elite.
Elites, like all of us, only act effectively in concert with others. Long ago, Leo apparently grasped the “basic insight of sociology” derived from scholars like Ian Robertson: “[H]uman behavior is shaped by the groups to which people belong and by the social interaction that takes place within those groups.”
And so Leo systematically wove a cocoon of comfortable social interaction around the justices whom he wanted to remain on the Court and to stay true to the extremist vision he held, the way that former Justices David Souter and Sandra Day O’Connor did not. That social cocoon was also one of political reaction and shared belief in sectarianism.
We have learned from reporting just how comfortable the cocoon was. For Alito, free flights to Alaska salmon fishing, courtesy of Leo’s connections to billionaire Paul Singer. For Thomas, $4 million of gifts, including luxury private jet and yacht travel to foreign destinations, private tuition for a child he raised, home buying and a custom RV, much of it again through Leo’s connection to Harlan Crow, another right-wing billionaire.
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To whom do these justices feel indebted and to whom do they answer? Corruption can build a thick encasing around ideology; it can be as subtle as the joy of feeling celebrated by right-wing friends in the privacy of a billionaire’s Adirondack sanctuary, or feeling social pressure not to have to explain veering off course politically.
In that vein, within the cocoon is also a shared political theory: that the path to cultural salvation runs most immediately through what Federalist society types call a “unitary executive” – an imperial president – committed to achieving their turn-back goals even through anti-majoritarian means.
That theory holds that a president’s power over the executive branch must be unchecked, especially by Congress. Its most fierce practitioner and developer in the Republican Justice Department 40 years ago was none other than Samuel Alito. John Roberts was there, too.
Trump v. United States is the unitary executive theory on steroids – officially, a president can do no wrong. Congress’ authority to contain the chief executive through ordinary criminal statutes is neutered. A president committed to his own power and to a Christian nation can complete a far-right, religio-political revolution.
Let’s be clear: One branch of government is not enough for a bloodless coup. But two branches, the executive and the judiciary, suffice. For the radical Court majority, with Trump on a path to a second presidency, the time to pull the trigger on complete immunity and a future theocratic nation had come.
So ask not how to explain Trump v. United States. Ask where accountability is for the corruption of the framer’s constitutional vision. The ballot box is our only answer.
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