Five of Diamonds: The Three-in-One Marble Freedom Trust, Federalist Society and Leonard Leo

“Marble Freedom Trust is Leonard Leo’s billion-dollar slush fund to erode democracy”
Leo a lawyer and former executive at the Federalist Society.

 

Letters from an American

HEATHER COX RICHARDSON

MAY 24, 2024

https://heathercoxrichardson.substack.com/

It turns out that Supreme Court justice Samuel Alito is not the only one flying an “Appeal to Heaven” flag. Leonard Leo, the man behind the extremist takeover of the American judiciary, also flew that flag at his home on Mount Desert Island in Maine. 

So now we have the Appeal to Heaven flag, which represents the idea that the 2020 election was stolen, that the people should engage in armed revolution against tyranny, and that the United States should be a nation based in Christian theology, in front of the office of House speaker Mike Johnson (R-LA) and over the houses of Supreme Court justice Samuel Alito and the architect of the right-wing theocratic takeover of the federal courts, Leonard Leo.

 

What happens when an AG dares to investigate Leonard Leo’s network

Brian Schwalb’s probe followed a complaint that nonprofit groups associated with the judicial activist violated their tax status.

Allies of Leonard Leo have mounted a monthslong offensive against the man investigating the judicial activist’s network: Washington, D.C., Attorney General Brian Schwalb.

Since news of the probe broke last August, the GOP chairs of powerful congressional committees launched their own investigation of Schwalb’s investigation; conservative media wrote articles criticizing Schwalb on unrelated crime issues — based on a social media post from a top Leo lieutenant; and a group of his Republican law enforcement peers sent letters warning Schwalb to stand down.

Leo is the Federalist Society co-chair who has been called former President Donald Trump’s “court whisperer” for helping to choose and advocate for his Supreme Court nominees. His aligned network of tax-exempt nonprofits is also a major contributor to Project 2025, an initiative seeking to create a “government in waiting” for another Trump term.

The white-hot pressure campaign targeting Schwalb attests to the growing range of Leo’s influence. Beyond its work in promoting the conservative legal movement, his billion-dollar network of nonprofits has funded conservative media, Republican attorneys general and the campaign funds of leading congressional figures.

Leo, through his company spokesperson Adam Kennedy, declined to comment.

Schwalb has been probing Leo since he received a complaint about whether Leo-aligned groups violated tax laws governing nonprofit organizations, as POLITICO reported last August. Tax-exempt groups in Leo’s network have spent millions of dollars on his for-profit consulting business, CRC Advisors.

But since news of the probe became public, its legal basis has been challenged by 12 GOP attorneys general who are current or former members of the Republican Attorneys General Association. The Concord Fund, one of the Leo network’s primary nonprofits, and its predecessor, the Judicial Crisis Network, have long been RAGA’s biggest funder, directing $20 million to it since 2014, according to annual tax filings.

Meanwhile, GOP Reps. James Jordan, chair of the House Judiciary Committee, and James Comer, who heads the House Oversight Committee, on Oct. 30 announced a probe of Schwalb’s Leo investigation, saying it was politically motivated. According to a federal disclosure form dated Oct. 20, the Concord Fund had hired a Virginia lobbying firm to handle issues related to “oversight” and “law enforcement,” matters over which Jordan and Comer have jurisdiction.

A Judiciary Committee spokesperson said there is no connection between the two: “The decision to launch a probe was not influenced by the lobbying firm. Any suggestion that it was is lazy, in bad faith, and completely ridiculous. It’s well-known that this probe is part of a broader portfolio the congressmen are pursuing related to the weaponization of the federal government.”

In December, the House chairs then threatened to subpoena Schwalb. One day later, Concord Fund made a $250,000 contribution — its first to a federal political action committee in nearly nine years — to a fundraising group allied with House GOP leadership, according to Federal Elections Commission disclosures.

Jordan and Comer’s intervention in a law-enforcement probe angered activist groups that have long scrutinized his network.

“Leonard Leo is working to implement policies with a vision that’s far too extreme for most Americans. Now, members of Congress have weaponized their government power against his critics,” said Caroline Ciccone, president of Accountable.US, a progressive watchdog group.

Project 2025’s manifesto promises to defund the Department of Justice, dismantle the FBI, break up the Department of Homeland Security and eliminate the Departments of Education and Commerce.

“Leo may consider himself to be beyond scrutiny, but he isn’t. He and his network must be held to the same standards as everyday Americans,” said Ciccone.

Recently, a round of articles in conservative media claimed that Schwalb angered D.C. residents at a city panel discussion about youth crime. The articles were pegged to a critical tweet. Its author was Carrie Severino, who leads the Concord Fund.

During the Jan. 30 panel of city officials and residents, Schwalb spoke at length about his frustration that many underage offenders aren’t being arrested, making it hard to prosecute. A day later, Severino sent a tweet of a Fox News spot including one of Schwalb’s comments later in the discussion: “We cannot prosecute and arrest our way out of it,” he said of crime problems.

recording of the meeting shows Schwalb was responding to a specific question about which resources the city should offer to help rehabilitate minors who are not prosecuted. Since D.C. does not have statehood, Schwalb has jurisdiction only over juvenile prosecutions and some adult misdemeanors.

Nonetheless, Severino’s tweet was retweeted and quoted by numerous conservative accounts with large followings. Conservative media sites including The Washington Examiner and Fox News then wrote stories, relying on the same viral tweet.

“‘Madness,’” read the Feb. 1 Fox News headline. The quote came from Rep. Dan Bishop (R-N.C.), who was retweeting Severino. A couple of weeks after the January panel discussion, the Examiner followed up with a Feb. 12 article asserting that Schwalb’s approach to D.C.’s crime wave had drawn criticism “four times.” Once again, Severino’s Jan. 31 quote was its primary evidence.

Severino did not respond to a text seeking comment.

The Concord Fund is part of Leo’s constellation of tax-shielded groups registered as charities and social welfare organizations. The fund spent millions of dollars on media campaigns to support the confirmation of Trump’s Supreme Court picks, which were culled from a list authored by Leo, among others. The nonprofit is also a longstanding client of Leo’s for-profit consulting firm and paid the company, CRC Advisors, $3.8 million between July of 2021 and July of 2022.

The Concord Fund is among the nonprofits named in a complaint sent to Schwalb’s office and the Internal Revenue Service from a progressive watchdog group that claims that a handful of Leo-aligned groups violated nonprofit tax laws by paying CRC for communications services.

Schwalb is probing the network following a complaint that nonprofit groups associated with the judicial activist violated a tax law that bars charitable groups from being used for personal enrichment. Through his spokesperson, Gabe Shoglow-Rubenstein, Schwalb declined to comment.

It’s the latest in a pressure campaign that includes Schwalb’s peers in a dozen GOP-led states. In a Sept. 20 letter to Schwalb, they insisted he doesn’t have the authority to probe Leo’s empire, asked him to reconsider and suggested that conservative AGs might come under pressure to investigate progressive-oriented nonprofits if Schwalb doesn’t back down. All of the law enforcement signatories are or have been members of the Republican Attorneys General Association. RAGA and the Virginia Attorney General’s office did not respond to three emails seeking comment.

Gene Takagi, a California lawyer who’s represented hundreds of nonprofits, called the letter “very unusual.”

“I have not seen a group of attorneys general target a fellow attorney general before,” said Takagi, who is also a publisher of the Nonprofit Law Blog. Attorneys general, however, are increasingly clashing along party lines over issues such as gun safety, he said.

Karen Gano, a former assistant attorney general in Connecticut, agreed. “I have never seen a group of attorneys general attacking an attorney general in that way, particularly with a targeted political viewpoint and threat. I’ve never seen it in any context,” said Gano, also former president of the National Association of State Charity Officials.

The AGs’ letter challenged Schwalb’s jurisdiction to investigate Leo’s nonprofits, a claim which has been disputed by some charitable tax experts, including officers in other states. It said Schwalb’s actions could oblige other state AGs to investigate political groups across the political spectrum, according to a copy obtained by POLITICO.

“Once the dam breaks, we and our successors will be under intense pressure to investigate the inner workings of every abortion advocacy group, every immigration advocacy group, every environmental advocacy group,” the Republican attorneys general warned. “We can only stop it if each of us conscientiously stays in his or her lane.”

The Wall Street Journal editorial board picked up the letter in warning of “Hobbesian” lawfare that “threatens state sovereignty” if Schwalb does not stand down.

In a separate Sept. 12 letter, Virginia Attorney General Jason Miyares, a Republican, had warned Schwalb that the entities Schwalb was targeting are “subject to the exclusive oversight of my office.” The Concord Fund was incorporated in Virginia. Another Leo-affiliated group cited in the complaint to Schwalb is The 85 Fund, which was originally known as the Judicial Education Project.

While it was incorporated in Virginia in 2004, The 85 Fund and its predecessor had maintained its principal office address in D.C. for at least a decade, as POLITICO previously reported. The group moved its mailing address to a UPS store in a Texas strip mall amid Schwalb’s investigation. Spokespersons for Miyares and RAGA did not respond to three emails.

Gano, the former head of the Connecticut attorney general’s charitable unit, said that where a charity was incorporated isn’t the only criteria that determines jurisdiction.

“It has to do with what activity they engage in in that state,” she said. Miyares’ letter contained detailed legal language making his case and requested a staff meeting to resolve the matter.

The letter began by suggesting that Schwalb should instead be focused on a “violent crime” wave in D.C., including carjackings, according to a copy.

Miyares also has personal ties to Leo’s inner circle.

In 2013, Miyares started a consulting firm called Madison Strategies with Gary Marx, who was part of a small group that founded Severino’s Concord Fund, then called the Judicial Crisis Network. Marx was, for a time, its executive director. He is also part of the leadership team of The 85 Fund, previously the Judicial Education Project, according to the latest IRS filings.

Leo’s lawyer has said he is not cooperating with Schwalb’s probe. Leo joined the firm as chair in 2020, and his aligned nonprofits are longstanding CRC clients.

Prior to Leo’s tenure the firm had significant experience running politically focused public relations campaigns. It is best known for its work with the Swift Boat Veterans in 2004, which criticized former presidential candidate John Kerry, a decorated Vietnam War veteran, for his actions in that war. More recently it worked on behalf of then Supreme Court nominee Brett Kavanaugh in the wake of Christine Blasey Ford’s claim in his 2018 confirmation hearings that Kavanaugh had sexually assaulted her when both were in high school.

While Schwalb’s office has not confirmed the existence of its probe, POLITICO broke the news on Aug. 22 that Leo was under investigation. A few days later, a group called CatholicVote.org, which received $1.75 million from Concord Fund from 2021 to 2022, wrote an article that Schwalb was targeting Leo for his role “in setting the stage for the overturning of Roe v. Wade.”

In a recent interview, Leo emphasized the critical role that shaping public opinion plays in the network’s next frontier of advocacy. He spoke of the need for more conservative allies in C-Suites and boardrooms and spoke about the need for conservatives to “build talent pipelines in the media and entertainment industry.”

 

The king of dark money effectively controls the US supreme court now

From its recent rulings to its billionaire donor scandals, this supreme court term has been defined by judicial activist Leonard Leo
Joel Warner
 
July 1,2023

Once again, the US supreme court has issued rulings triggering national uproar. This time, the court has ruled that universities’ race-conscious admission policies are unconstitutional, that businesses can deny services to LGBTQ+ customers, and that Joe Biden can’t move forward with his student loan forgiveness plan. And just like the justices’ decision last year to end federal abortion protections and other troubling Scotus developments this term, the court’s new decisions are all examples of how dark money reigns supreme.

That’s because one person’s fingerprints are all over these developments: the conservative legal activist Leonard Leo, the king of dark money. And based on Biden’s preliminary response to some of these new court rulings, it appears the president isn’t going to do anything to stop him.

As Donald Trump’s judicial adviser, Leo helped build the conservative supermajority on the supreme court that killed Roe v Wade. As the Lever helped expose last year, Leo’s judicial activism was supercharged in 2021 when a conservative surge protector magnate secretly funneled $1.6bn to his new dark money fund – the largest known political advocacy donation in US history.

Leo’s dark money operation has since been working to influence some of the supreme court’s most consequential cases.

That includes the court’s rulings on affirmative action. In 6-3 and 6-2 decisions, the supreme court struck down affirmative action policies at both public and private universities. Both cases were brought by Students for Fair Admissions, which purports to be a “membership group of more than 20,000 students, parents and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional”.

But in truth, the group is funded by Leo’s sprawling network of opaque non-profits that are all trying to roll back protections deemed antithetical to a conservative way of life. In 2020, Students for Fair Admissions received $250,000, more than a third of its total revenue that year, from the 85 Fund, an organization steered by Leo.

Several other Leo-backed interests filed supreme court briefs backing Students for Fair Admissions’ fight to overturn affirmative action. That included Speech First, a non-profit that received $700,000 from 2020 to 2021 from the 85 Fund, as well as 19 Republican attorneys general. Leo’s network has long been the top donor to the Republican Attorneys General Association (Raga), which helps elect Republican attorneys general across the country.

Leo also had a hand in the supreme court’s decision that a Colorado website designer was within her rights to refuse a same-sex wedding project. The decision has the potential to render anti-discrimination protections across the country as unenforceable.

The court ruled this way even though the designer’s lawyers never actually argued to the high court that she had ever been asked to do an LGBTQ+ project. The only time they apparently tried to make such a point was with an exhibit that appears to have been fake website design request.

Once again, the effort is tied to Leo and his colleagues. At least six conservative groups that filed briefs supporting the Colorado suit have received millions in dark money contributions from Leo’s network.

Finally, the supreme court struck down Biden’s student loan forgiveness plan, a potentially catastrophic development for tens of millions of Americans struggling under onerous student loans. Leo is connected to this matter, too.

The case in question was led by two Republican attorneys general and backed by a brief filed by 17 other Republican attorneys general – all of whom are connected to the Leo-backed Raga. The Foundation for Government Accountability, a conservative thinktank, filed another brief in support of abolishing student loan forgiveness. Between 2019 and 2021, Leo’s network donated nearly $4m to the foundation and its advocacy arm.

Even the design of the student debt case reeks of Leo’s involvement, since just like the Colorado suit, it appears to have been based on DC machinations. As the Lever reported, the student loan servicer at the heart of the case – whom Republican attorneys general argued would be harmed by Biden’s student loan plan – would in reality face no financial harm at all.

Biden acknowledged the judicial racket as the recent supreme court rulings began coming down, telling reporters on Thursday that this court has “done more to unravel basic rights and basic decisions than any court in recent history”.

But at the same time, he refused to do anything of consequence to fix the problem, such as adding justices to the court, which conservatives control 6-3.

“I think if we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that is not healthy,” Biden said on MSNBC.

Leo, meanwhile, isn’t just using his millions to put key cases and supporting arguments in front of the supreme court. He’s also working behind the scenes, connecting justices like Clarence Thomas and Samuel Alito with conservative tycoons happy to ply these figures with luxury trips and other cushy benefits. As the Nation recently noted, Leo is the “matchmaker” who “makes it his job to keep rightwing judges, donors and political actors in alignment.”

Leo isn’t just doing this so he can spend long weekends with his arch-conservative buddies. As the Lever noted in May, this entire system is designed to stymie a historical trend of Republican justices getting more liberal as they get older:

In light of that, the money and gifts flowing to conservative justices can be seen not merely as cheap influence-peddling schemes to secure specific rulings in individual cases. It can also be seen as a grand plan to deter the ideological freedom that lifetime appointments afford.

In short, the largesse from billionaires and Leo – who helped assemble the supreme court’s 6-3 conservative supermajority as Trump’s judicial adviser – creates personal financial incentives for justices to remain doctrinaire ideologues and resist any deviation from the conservative line, even if they might once in a while have an inkling to dissent.”

To be clear, Leo’s system isn’t fully foolproof. His billion-dollar supreme court remote control doesn’t always work as planned.

In recent weeks, the court issued surprise rulings upholding the Voting Rights Act. Conservative justices joined with their liberal colleagues to reject a fringe legal theory that would have given state lawmakers free rein to pass voter suppression laws without oversight from state courts.

Last year, the non-partisan watchdog group Accountable.US found that Leo-backed organizations and other dark money groups had spent nearly $90m in support of the case. That’s a $90m project that can now be considered a failure.

For the most part, though, Leo’s dark money network has notched hugely consequential – and destructive – wins. The king of dark money now has nearly full control of the high court. Will anyone stop him?

  • The article was co-published with the Lever, a reader-supported investigative news outlet

  • Joel Warner is the managing editor at the Lever

The activist, Leonard Leo, has been instrumental in pushing the federal judiciary to the right. A new tax filing offers a glimpse of the deep pool of money flowing into conservative causes.

[Excerpt:]

A deep-pocketed nonprofit organization founded by the conservative activist Leonard A. Leo gave away $182.7 million in a year’s time, a new tax filing shows, demonstrating how aggressively it has worked behind the scenes to prop up other groups and causes on the right.

The organization, Marble Freedom Trust, was formed in 2020 and was funded by a gift of more than $1.6 billion — an extraordinary windfall that resulted from a single donor’s contribution of 100 percent of a company’s shares before the company was sold, leaving Marble with the proceeds of the sale, The New York Times reported last year.

Mr. Leo, a lawyer and former executive at the Federalist Society, has been instrumental in conservatives’ yearslong effort to push the federal judiciary to the right, both through his direct guidance to Republican leaders and by financing conservative causes. In recent years, he has built an opaque, far-reaching network of organizations — many of which have funding sources that are not required to be disclosed — that can influence elections and other matters, including education policy, abortion and campus free speech issues.

 

How a Secretive Billionaire Handed His Fortune to the Architect of the Right-Wing Takeover of the Courts

In the largest known political advocacy donation in U.S. history, industrialist Barre Seid funded a new group run by Federalist Society co-chair Leonard Leo, who guided Trump’s Supreme Court picks and helped end federal abortion rights.

https://www.propublica.org/article/dark-money-leonard-leo-barre-seid

[Excerpt:]

An elderly, ultra-secretive Chicago businessman has given the largest known donation to a political advocacy group in U.S. history — worth $1.6 billion — and the recipient is one of the prime architects of conservatives’ efforts to reshape the American judicial system, including the Supreme Court.

Through a series of opaque transactions over the past two years, Barre Seid, a 90-year-old manufacturing magnate, gave the massive sum to a nonprofit run by Leonard Leo, who co-chairs the conservative legal group the Federalist Society.

As President Donald Trump’s adviser on judicial nominations, Leo helped build the Supreme Court’s conservative supermajority, which recently eliminated Constitutional protections for abortion rights and has made a series of sweeping pro-business decisions. Leo, a conservative Catholic, has both helped select judges to nominate to the Supreme Court and directed multimillion dollar media campaigns to confirm them.

Leo derives immense political power through his ability to raise huge sums of money and distribute those funds throughout the conservative movement to influence elections, judicial appointments and policy battles. Yet the biggest funders of Leo’s operation have long been a mystery.

Seid, who led the surge protector and data-center equipment maker Tripp Lite for more than half a century, has been almost unknown outside a small circle of political and cultural recipients. The gift immediately vaults him into the ranks of major funders like the Koch brothers and George Soros.

In practical terms, there are few limitations on how Leo’s new group, the Marble Freedom Trust, can spend the enormous donation. The structure of the donation allowed Seid to avoid as much as $400 million in taxes. Thus, he maximized the amount of money at Leo’s disposal.

Now, Leo, 56, is positioned to finance his already sprawling network with one of the largest pools of political capital in American history. Seid has left his legacy to Leo.

 

The activist, Leonard Leo, has been instrumental in pushing the federal judiciary to the right. A new tax filing offers a glimpse of the deep pool of money flowing into conservative causes.

A deep-pocketed nonprofit organization founded by the conservative activist Leonard A. Leo gave away $182.7 million in a year’s time, a new tax filing shows, demonstrating how aggressively it has worked behind the scenes to prop up other groups and causes on the right.

The organization, Marble Freedom Trust, was formed in 2020 and was funded by a gift of more than $1.6 billion — an extraordinary windfall that resulted from a single donor’s contribution of 100 percent of a company’s shares before the company was sold, leaving Marble with the proceeds of the sale, The New York Times reported last year.

Mr. Leo, a lawyer and former executive at the Federalist Society, has been instrumental in conservatives’ yearslong effort to push the federal judiciary to the right, both through his direct guidance to Republican leaders and by financing conservative causes. In recent years, he has built an opaque, far-reaching network of organizations — many of which have funding sources that are not required to be disclosed — that can influence elections and other matters, including education policy, abortion and campus free speech issues.

In a statement responding to questions about Marble’s work, Mr. Leo described it as an attempt to match Democratic efforts in the world of so-called dark money, a term used to describe the vast flow of funds — often from untraceable donors — through nonprofits and other organizations into politics and political causes. Democrats raised and spent more dark money for the 2020 election than Republicans did.

“It’s high time for the conservative movement to be among the ranks of George Soros, Hansjörg Wyss, Arabella Advisors and other left-wing philanthropists, going toe-to-toe in the fight to defend our Constitution and its ideals,” Mr. Leo said.

(Mr. Wyss, a Swiss billionaire, is a major donor to left-leaning nonprofit groups; Arabella Advisors is a for-profit consulting group that administers a network of progressive nonprofit organizations that together spent nearly $1.2 billion in 2020.

Marble Freedom Trust, a tax-exempt 501(c)(4) “social welfare” organization, is a centerpiece of Mr. Leo’s network. The group’s stated mission is to “maintain and expand human freedom consistent with the values and ideals set forth in the Declaration of Independence and the Constitution.”

It was not immediately clear from the group’s record of contributions how Marble was realizing that mission. The recent filing for Marble — a tax record for the year ending on April 30, 2022, that was obtained by the liberal transparency group Accountable.US — does not reveal much about the ultimate destination of the $182.7 million.

In the year ending last April, according to the filing, Marble gave $153.8 million to the Schwab Charitable Fund, a manager of donor-advised funds, which allow people and entities to direct their deposits over time into charitable organizations, including some politically inclined groups and institutions.

Another $28.9 million went to the Concord Fund, a conservative advocacy organization. Formerly known as the Judicial Crisis Network, the group has acted as a funding hub in the past, giving tens of millions of dollars in grants to allied nonprofit groups and supporting in-house projects, including opposition to Democrats’ attempts to expand voting access.

From those two organizations, it is impossible to directly trace where the Marble money went.

During that approximate time period, according to Schwab Charitable’s tax filings,Schwab Charitable gave $141.5 million to another group linked to Mr. Leo, the 85 Fund — a nonprofit organization that says its mission is “to educate the public and support activities that highlight the relationship between structural limits on government power and the protection of our dignity and our freedom.”

The 85 Fund backs the Honest Elections Project, a conservative group founded in 2020 that has worked in states across the country to restrict voting access.

Some of the money that flows through Mr. Leo’s network of nonprofit groups goes to for-profit companies he controls. In 2021, the 85 Fund paid $21.75 million to CRC Advisors, a consulting firm run by Mr. Leo, according to the 85 Fund’s tax filings.

Several other entities in Mr. Leo’s network, including the Concord Fund, have also paid CRC Advisors millions of dollars in the last two years, tax records show.

“Marble Freedom Trust is Leonard Leo’s billion-dollar slush fund to erode democracy,” said Kyle Herrig, the president of Accountable.US. “With all this money under his control, Leo can push his extreme agenda by influencing conservative lawmakers on Capitol Hill, deploying state attorneys general to do his bidding and moving extreme bills in state legislatures.”

In a statement, Mr. Leo said that CRC Advisors “employs nearly 100 best-in-class professionals whose expertise goes across all aspects of public affairs, and we deliver results that are leading the conservative movement to win more than it has ever before.”

Marble’s grants last year declined slightly from the previous year, when the group reported nearly $229 million in grants, including to Concord and the 85 Fund.

Since the $1.6 billion windfall — which came from Barre Seid, an electronics manufacturing mogul — Marble has received no contributions or grants, but it did report $26.6 million in investment income last year. As of about a year ago, Marble still had $1.2 billion to spend.

Marble’s tax filing also shows that Mr. Leo’s salary for his part-time role at the company increased to $400,000 from $350,000.

Mr. Leo’s work, and his longtime relationship with Justice Clarence Thomas, have come under new scrutiny recently. The Washington Post reported last week that Mr. Leo had arranged for Justice Thomas’s wife, the conservative activist Ginni Thomas, to be paid tens of thousands of dollars for consulting work, and had urged to keep her name off the paperwork.

In a statement, Mr. Leo said the payment did not present a conflict of interest with the court. “It is no secret that Ginni Thomas has a long history of working on issues within the conservative movement,” he said. “The work she did here did not involve anything connected with either the court’s business or with other legal issues.”

Rebecca Davis O’Brien covers campaign finance and money in U.S. elections. She previously worked for The Wall Street Journal, where she was part of a team that won the 2019 Pulitzer Prize in National Reporting.

How the Federalist Society Won

The conservative legal movement was pivotal in getting Roe v. Wade overturned. But does it have any control over what happens next?

A few minutes before Roe v. Wade was overturned, Sherif Girgis sat in his office at Notre Dame Law School, desperately clicking refresh on the Supreme Court’s Web site. Girgis had been looking forward to this precise moment for months. He’d been gaming out the arguments for years, really.

Conservatives of an older generation, who suffered a Supreme Court betrayal in 1992—when a trifecta of Republican-appointed judges upheld the constitutional right to an abortion, in Planned Parenthood v. Casey—couldn’t believe that Roe would ever truly fall. But Girgis, who is thirty-six, came up in a different era. “I was in kindergarten when Casey was decided,” he said. Unlike his jaded elders, he believed that the Court would one day follow through on the simple, powerful idea that animates the conservative legal movement: that a judge’s job is not to make value judgments or to speculate about the potential consequences of his or her decisions but, rather, to decide cases by looking solely at how the Constitution was understood at the time it was written. This method of interpretation, called originalism, would inevitably lead to the end of Roe.

Girgis, a professor who specializes in philosophy and the law, embodies a young, energized, traditionalist wing of the conservative legal movement that will likely be galvanized by Dobbs v. Jackson Women’s Health Organization, the decision that overturned the constitutional right to abortion. Early in his career, Girgis clerked for Samuel Alito, the Justice who wrote the majority decision in Dobbs. He’s a rising star in the Federalist Society, a powerful network of conservatives and libertarians that has a chapter at many major law schools, as well as dozens of professional chapters across the country. The organization prides itself on being a forum for ideas, even those which some conservatives hate, which is part of what drew Girgis to become a member when he was a student at Yale Law School, in 2011. “The Federalist Society is not a ghetto within each law school,” he said. “At its best, it is—or ought to be—a cheerful and willing debating partner.” Girgis is a frequent speaker at chapter events. A longtime member described him to me as a “brilliant, beautiful soul.” One of his mentors, Princeton’s Robert George—a heavyweight in the relatively small world of élite conservative academics—frequently hypes him on Twitter, like a coach cheering on Rocky in the ring.

In 1982, when the Federalist Society was founded, the conservative legal movement was still finding its footing. Law-school campuses were predominantly liberal, and there was a prevailing sense among students and professors that the conclusions in Roe and other major Supreme Court decisions of the prior thirty years—on issues such as birth control, racial integration, and voting rights—were both morally good and legally correct. But an ideological counter-revolution was beginning. Lee Liberman Otis—one of the Federalist Society’s founders, who was then a law student at the University of Chicago—recalled thinking, It’s funny that there are these ideas about law which Reagan seemed to have run on, in part, and nobody’s talking about them. She helped organize the first Federalist Society conference; its speakers included Antonin Scalia, then a law professor, and Theodore Olson, then an Assistant Attorney General in the Reagan Administration. Otis could tell that the conference was the start of something. Four years later, Scalia would ascend to a seat on the Supreme Court, and Olson would eventually become one of the country’s most accomplished Supreme Court litigators.

“I don’t recall Roe being an issue in any such conversations I had concerning [the] creation of Fed Soc,” Olson wrote to me, in an e-mail. “It was all about creating a forum/venue for debate. Not taking sides on any particular issue.” And yet Roe symbolized something to the Federalist Society’s founding members. “For someone like me, a lawyer, Roe was really not about abortion,” John McGinnis, a conservative law professor at Northwestern University, said. (McGinnis was an early member of Harvard’s Federalist Society chapter, back when it could fit in a “broom closet,” he said.) Roe, he told me, “was the culmination of the Court diverging from the text of the Constitution and essentially—this is not too strong of a word—fabricating the law.” One of the core holdings of the decision, that abortion had to remain legal before the point of fetal viability, seemed to conservatives to be summoned out of thin air. Some prominent left-leaning legal scholars, despite being pleased with the outcome of the decision, said the same: John Hart Ely commented that Roe was “notconstitutional law and gives almost no sense of an obligation to try to be.” (The current conservative majority on the Court happily cited this line when overturning Roe.)

During the next four decades, the conservative legal movement set about radically changing the way that the law was talked about. They promoted a mode of legal interpretation that was purportedly value-neutral, based on their understanding of what the Founders wrote. The movement’s most powerful tool was its people: the Federalist Society started functioning as a kind of Rolodex for legal jobs around the country, especially clerkships and judgeships. And yet the process was slow going. In 1987, the U.S. Senate rejected the nomination of Robert Bork, an early Federalist Society figure, to the Supreme Court, based in part on his strong opposition to the Civil Rights Act of 1964. Anthony Kennedy and David Souter—Republican appointees without strong Federalist Society ties—drifted to the left during their time on the bench, siding with their liberal peers in Casey, along with Sandra Day O’Connor, Reagan’s first nominee to the Court. Slowly, though, originalist Justices started taking their seats. Today, all six members of the conservative majority run in Federalist Society circles. All voted to effectively end the federal abortion rights that have been in place for the past fifty years.

The Dobbs case also illustrates the Federalist Society’s broader influence beyond judicial appointments. The conservative movement now has a legal intelligentsia of academics, writers, and national advocacy groups who fundamentally shaped how Roe was overturned. The Alliance Defending Freedom (A.D.F.), a conservative Christian legal firm, helped Mississippi legislators draft the fifteen-week abortion ban that eventually made its way to the Supreme Court, which the Justices upheld in Dobbs, and then later served alongside Mississippi’s legal team as it presented its arguments to the Court. A.D.F.’s general counsel, Kristen Waggoner, a Federalist Society member, told me that the firm closely monitored the scholarship on abortion while shaping Mississippi’s litigation strategy—which was led by another Federalist Society regular, Mississippi’s solicitor general, Scott Stewart. The Court depends on this scholarship, too; the Dobbs decision is heavy with footnotes debating the minutiae of how abortion was historically viewed. To Girgis, whose own scholarship has touched on subjects such as the nature of marriage, religious liberty, and constitutional principles, this is what’s compelling about his job: “The legal academy is not like other academic disciplines, because it is tied to the real world in a very concrete way,” he said. “It’s at least supposed to be serving the bench and bar.” Dobbs is exciting, he added, in part because it shows that “a theory of interpretation can actually lead to real-world results.”

While originalism may sound intuitive and straightforward, many in the legal world feel cynical about its true aims. Critics of the conservative legal movement view the approach as a theoretical fig leaf used to justify decisions that line up with conservatives’ policy preferences. When I asked Girgis about this, he said that originalism is supposed to achieve the opposite: it’s a way to make sure the law doesn’t just reflect the preferences of the ruling party. (Or, as Girgis put it, to guarantee that judges “don’t cheat.”) Dobbs was satisfying, in his view, precisely because it was argued according to a set legal theory that has clear rules and little room for personal opinion. To Girgis, it’s not a sign of bad faith that originalist decisions often reach conservative outcomes, because both are philosophical approaches anchored in the past.

Still, other critics believe that originalism, even when applied in good faith, often has unacceptably harmful consequences. The three liberal Justices’ dissent in Dobbs is in part a scathing critique of the originalist approach: the Founders, they wrote, “did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification . . . it consigns women to second-class citizenship.”

Conservatives don’t always agree on how originalism should be applied. For example, Neil Gorsuch, the originalist all-star who replaced Scalia, wrote the 2020 decision that extended workplace protections to L.G.B.T.Q. employees. In the opinion, joined by Chief Justice John Roberts and the Court’s liberal Justices, Gorsuch made his argument on strictly textualist grounds, but the outcome rankled many conservatives who believed that nineteen-sixties-era anti-discrimination laws were never intended or understood to protect gay and trans people. During the same term, Roberts put the brakes on overturning Roe out of a desire for the Court to practice restraint, despite eagerness from the movement to see that decision in the ash heap of history; he continued to make his uneasiness clear in his concurrence in Dobbs, even as the majority overruled him.

Common wisdom has it that the Federalist Society is roughly divided between libertarians and more traditionalist types—religious conservatives like Girgis, who converted to Catholicism in high school. Some on the traditionalist side have claimed that the occasionally unexpected outcomes of originalism demonstrate the movement’s failures—that the theory doesn’t necessarily lead to moral results in the hardest cases. Girgis’s loose impression is that among law students and Federalist Society members there’s more of an appetite for a style of legal interpretation which would promote conservatives’ vision of a good society, along the lines of Adrian Vermeule’s “common-good constitutionalism.”

And yet Dobbs “was a huge boost for the conservative legal movement as a practical, sociological matter,” Girgis said. The decision proved that the traditionalists inside of the conservative legal movement aren’t just the Charlie Brown to a libertarian Lucy’s football; the long strategy of creating an alternative intellectual milieu in the law actually succeeded.

Now that conservatives have won, the legal work begins. One effect of Roe and Casey was to make abortion-related policy and scholarship feel somewhat low-stakes. Conservative legislators could introduce any bill they wanted, knowing it would eventually be struck down by the courts. Scholars could make any theoretical argument they wanted, knowing that Roe’s viability standard would ultimately guide abortion jurisprudence. But, in post-Roe America, “the legal nerd in me is intrigued by the very difficult and mostly unsettled legal questions about the kinds of policies that states are likely to pursue,” Girgis said. Can Texas stop its residents from travelling to another state to obtain an abortion? Can Mississippi ban abortion drugs, even when they’re approved by the Food and Drug Administration? Can the federal government limit or expand abortion access without an act of Congress? These questions have taken on “a new practical urgency, and there’s not a ton of law on some of them,” Girgis said. “That combination is exciting for me. Because it means that your expertise is both needed and practically relevant.”

But, although the conservative legal movement was united in its belief that abortion is not a constitutionally protected right, it has always been divided on the question of whether abortion should be illegal. In May, leaders of some of the top pro-life activist groups in the country signed a letter opposing “any measure seeking to criminalize or punish women” for abortions. This came after a Louisiana legislator had introduced a bill allowing prosecutors to charge women who terminated their pregnancies with murder. “The penalties that should be imposed should be on the supply side—essentially those who are profiting from the death of children,” Waggoner, of A.D.F., told me. The Louisiana bill died, but there’s only so much control that legal élites will have on the next phase of abortion policy in America. “Part of the problem is that, on abortion, there aren’t many people in the academy leading the strategy” when it comes to legislation, Mary Ziegler, a professor of law at the University of California, Davis, said. When I asked Girgis whether state legislators actually listen to guys like him when they’re drafting new laws, he laughed. “I suspect that many don’t care,” he said. “But I also suspect that at least some do, if only because they want a good assessment of how likely their law is to be held unconstitutional by courts.” (That being said, he added, “Academics very easily overestimate their own relevance.”)

Some people in the conservative legal movement are more philosophical about the consequences of overturning Roe. In their view, the error of the original ruling—a “constitutional deformity,” as one Federalist Society insider put it—has been corrected. Now the democratic process begins. “I do think that things tend to settle out,” Otis, the Federalist Society founder, who now leads the organization’s faculty division, said. “By the time a law gets through, it does usually reflect, when it’s adopted, the views of the people.”

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“For this Nation to remain true to its principles, we cannot allow any American’s vote to be denied, diluted, or defiled. The right to vote is the crown jewel of American liberties, and we will not see its luster diminished.”

— Ronald Reagan