Just Another Week in the Federalist Society Hellscape

Power corrupts; gerrymandering corrupts absolutely.

Q: What do last week’s stories about Clarence Thomas, the Tennessee expulsion, and the Wisconsin election have in common that most news reports aren’t covering? 

A: The Federalist Society’s constitutional coup.

It’s obviously corrupt for a Supreme Court justice to be enjoying luxury vacations on a billionaire GOP donor “friend’s” dime, and then not disclosing it. Thomas should be held accountable. Just as it’s wrong for the Republicans in Tennessee to expel two Democratic representatives for speaking out against gun violence. And as great as it is for democracy, abortion rights, and more that Janet Protasiewicz won last week’s Supreme Court judicial election in Wisconsin, it is wrong that an outrageous partisan gerrymander has been guaranteeing Republicans in the Wisconsin legislature a near-supermajority of seats in a state that is split nearly evenly between the parties. Each of these stories is major in its own right, but we cannot risk being so outraged by one justice’s corruption, or so shocked by one theatrical instance of legislative power abuse, or so heartened by one thrilling victory that beats back an anti-democratic tide, that we risk losing sight of the bigger and more consequential context that unites every major political story of the past week: the Federalist Society project to overturn the democratic progress of the 20th Century. 

As much as the too-frequent days of record breaking heat waves, annual “once in a century” floods and fires, rising sea levels, and disappearing glaciers are the predictable whirlwind sown by rising levels of carbon in the atmosphere, this past week's stories are about the whirlwind sown by the revanchist coalition of capital and church that came together in the Federalist Society to capture the judiciary in order to advance its agenda. This campaign has been alarmingly successful, rapidly rolling back 20th Century constraints on business and the wealthy, as well as curtailing the civil and human rights won in the last century by heroic democratic struggle – for which many gave their lives, including Martin Luther King. Jr., assassinated 35 years ago in Memphis, Tennessee last week. 

It’s Not Just Clarence Thomas 

The Federalist Society majority has consistently handed down 5-4 decisions that favored business and opened the door for billionaires like Harlan Crow to have an even greater impact on the political process. Thomas’s vote was essential – and all of these decisions came during the two decades that Thomas has been accepting yearly luxury trips from Crow – but any other Federalist Society justice would have done the same. 

Yet, too many play along with the idea that only character flaws or cover-ups should disqualify Federalist Society approved judges from the courts. Thomas, Roberts, Alito, Kavanaugh, Gorsuch and Coney Barrett all swore under oath that they were going to decide each case on its merits. But this image in the ProPublica piece hammers home a reality that should make us drop this charade. A painting at Crow's resort shows Thomas smoking cigars and palling around with Federalist Society mastermind Leonard Leo, and Mark Paoletta, who assisted in vetting and shepherding judicial nominations for the Trump Administration. 

Maybe a corollary to Stringer Bell’s admonishment not to take notes on a criminal conspiracy should be to not have a painting commissioned of one either. The Supreme Court presents itself to the American people as a neutral arbiter that simply calls balls and strikes on whatever cases happen to come before it. To be clear: Justice Thomas does not rule the way he does because Crow has spent millions wining and dining him; he is a Supreme Court justice because he could be counted on to rule the way he has. This is not about a quid pro quo. Instead, both Thomas and Crow are part of a supremely well-funded conspiracy operating in broad daylight called the Federalist Society that obtains the appointments of judges who will ignore the particulars of every case in order to accomplish through the judicial system what the revanchist coalition of capital and church cannot hope to accomplish in anything like a democratic fashion.

(Moreover, it’s impossible to believe that Roberts and the other Federalist Society justices were unaware of Thomas’s vacation habits. More likely, communication between those justices and those billionaires who advocated their appointment, and the activists like Leo who brokered the deals with Republican presidents, is so commonplace that Thomas’s behavior raises no flags at all. I am fairly sure that they were as shocked as Inspector Renault was to discover there was gambling at Rick’s.) 

Thomas has been just one of the necessary minimum five votes that, case by case, has transformed America into a nearly unregulated paradise for billionaires like Crow – making their unlimited political spending to corrupt democracy their constitutional right. These decisions have directly made Crow and his fellow plutocrats richer and more powerful, the rest of us poorer, and MAGA stronger. 

Citizens United is perhaps the most prominent example, but it’s hardly the only one. The American Constitution Society has compiled a list of 73 cases in which the Federalist Society court has handed down narrow 5-4 rulings that advanced one of four Federalist Society-friendly agenda items: (1) controlling the political process to benefit right-wing candidates and policies; (2) protecting corporations from liability and letting polluters pollute; (3) restricting civil rights and condoning discrimination; and (4) advancing a far-right social agenda.

Those rulings also made the outrage in Tennessee possible and the victory in Wisconsin necessary.

Tennessee: Power Corrupts; Gerrymandering Corrupts Absolutely 

When politicians who have been handed the power to shield themselves from accountability begin using their power to destroy their opponents, the story shouldn’t begin and end with those politicians; it should be about how they got that power in the first place. 

The New York Times reports: 

In Tennessee, the General Assembly has carved up the state’s more Democratic-leaning cities and all but guaranteed that the majority of political representation is determined in Republican primaries instead of in general elections, leaving lawmakers more responsive to a far-right base.

Funny, but I thought that democracy won the 2022 elections. That was in nearly every post-election headline, and nearly every press release from democracy-defending organizations. 

Most analyses of the latest redistricting round marveled at what was seen as its surprising fairness. And, for the most part, to the extent that reporting about redistricting cases went beyond legal arcana, the only speculation about potential consequences addressed how much Democrats or Republicans might be advantaged – not how those decisions might affect us, the American people. Fairness to the two parties is all that matters. 

But when we pull back from that myopic, granular, DC-centric perspective, we can see that just since 2008, the democracy-busting Federalist Society majority rulings have enabled MAGA Republicans to nearly recreate the same one-party authoritarian grip on the Confederate states that Jim Crow Democrats had after Reconstruction. What is happening in Tennessee is hardly happening in isolation or without precedent. 

Unstated in the Times quote above is that Republicans in Tennessee would not be in a position to expel anyone but for the series of SCOTUS rulings that gutted the Voting Rights Act and threw the door to partisan gerrymandering wide open. Even though Tennessee is a fairly Republican state, Biden won 38 percent of the vote, and in 2022, Democrats won about a third of the votes for the Assembly statewide. Yet Republicans hold 75 of the 99 seats, or at least ten more than they likely would have before Shelby gutted the Voting Rights Act and threw out reasonable constraints on gerrymandering. 

And Tennessee is far from the only gerrymandered, MAGA-controlled legislature to abuse its power in order to revoke the consent of the governed. Ron Brownstein writes:

From Florida and Mississippi to Georgia, Texas and Missouri, an array of red states are taking aggressive new steps to seize authority over local prosecutors, city policing policies, or both. These range from Georgia legislation that would establish a new statewide commission to discipline or remove local prosecutors, to a Texas bill allowing the state to take control of prosecuting election fraud cases, to moves by Florida Republican Gov. Ron DeSantis and Missouri Republican Attorney General Andrew Bailey to dismiss from office elected county prosecutors who are Democrats, and a Mississippi bill that would allow a state takeover of policing in the capital city of Jackson. 

The political class¹ is outraged by the actions of the Republican majority in the Tennessee Assembly because of its astonishing insult to democracy and decency. Whenever MAGA Republicans say or do something that is too clumsily outrageous to ignore, we don’t ignore it. But when they are less clumsy about perpetrating their outrages, our political class is remarkably tolerant of them. Unless a Republican official says something meme-ably buffoonish about it, we very rarely hear about the millions of Americans living in Red states who are denied access to Medicaid, or the untold numbers of women who have been denied urgently needed abortions every day for the more than nine months since the Dobbs decision dropped. 

In this way, the political class’s reaction is not that different from Susan Collins’ professed shock after the Dobbs decision. She couldn’t possibly have been under any illusion that Kavanaugh wouldn’t vote to weaken Roe so badly that it might as well have been overturned. She felt betrayed because she thought she had his commitment to do so with sufficient ambiguity. We must break the habit of only reporting on the volume at which MAGA says the quiet part out loud. 

Wisconsin: We Love Tragedies with Happy Endings 

In Wisconsin last week, as in Michigan in November when Democrats won a trifecta, political class commentary called it a victory for democracy.² However, they celebrate with notably more enthusiasm than they ever expressed concern for the people of Wisconsin being trapped by an undemocratic regime for the past decade-plus. In America, the seriousness of injustices cannot be acknowledged until they are overcome – when we can safely congratulate ourselves for a system so righteous. (And democracy’s “victory” in Wisconsin remains far from complete.)

The full meaning of Janet Protasiewicz has been lost on a media and commenting class that sees nothing other than the lessons it might offer Democrats about the power of the abortion issue, the panic it's causing anonymous Republican insiders, and clues it might offer as to the outcome of the 2024 presidential election. 

It’s worth a deeper look. 

In 2010, Michigan, Minnesota, and Wisconsin were very similar in many ways – demographically, ideologically, and politically. They had all voted for the Democratic presidential candidate beginning in 1992 with Clinton; both Michigan and Minnesota had backed Democratic presidential candidates by an average of 10 points and Wisconsin by only slightly less (6 points). All three were (and remain) much less diverse than the rest of the country, and similar in all the ways that you would expect three adjacent states with fairly similar histories and cultural traditions would be. Michigan was a bit more industrialized, but they were reasonably understood as being very similar Great Lakes states. 

But, on November 2nd, 2010, Michigan and Wisconsin began to radically diverge from Minnesota when Scott Walker and Rick Snyder won the governors’ races. Both Republicans won with the backing of reactionary, revanchist billionaires (the Uihleins, Bradleys, and Merricks in Wisconsin; DeVoss in Michigan) – whose ability to influence the races had been supercharged by the Federalist Society 5-4 decision in Citizens United. But, in Minnesota, where there were no comparable billionaires to lay siege to the state, Mark Dayton eked out an 8,770 vote victory (0.4 percent). Thirteen years later, there are important lessons to learn.

Walker and Snyder, with GOP majorities in their state legislatures, fully exploited redistricting to lock those majorities in with some of the most extreme gerrymandering in the nation. In the next chart, the dark blue lines indicate the percentage of the vote won by Democratic candidates for their respective state houses in each cycle. The lighter blue lines indicate the share of seats Democrats held in their respective state Houses. As you can see, in more than half of the next five cycles after 2010, Democrats won half or more of the votes, but never came close to holding a majority of seats, and in Wisconsin have just barely stayed above the threshold of having a supermajority against them (the dashed horizontal line). 

Those billionaire-backed, MAGA-infused juggernauts wasted little time going after unions, their only organized opposition. Both states passed right to work laws, and Wisconsin gutted public sector unions. Thus, while union density in Minnesota has declined by only a tenth of a point since then, it has dropped by 5.5 points in Michigan and 7.3 points in Wisconsin. 

Here is a sampling of what else those MAGA Republican majorities accomplished: 

• Degrading Democracy. Michigan and Wisconsin made it more difficult to vote, with the intended effect that Black turnout rates declined. Wisconsin went from requiring no documentation to vote, to passing voter ID laws in 2011 that were so strict, they were ruled unconstitutional by a federal court. (The voter ID law is still in effect today due to an appeals court ruling in 2016.³) Michigan and Wisconsin became significantly less democratic as measured by Jake Grumbach’s democracy index. And when Tony Evers and Gretchen Whitmer won in 2018, the Michigan and Wisconsin state legislatures used their lame duck sessions to curtail the powers of those incoming Democratic governors. 

• Restricting Abortion. From 2010 to 2021, Michigan passed 6 restrictions on abortion, and Wisconsin passed 8; Minnesota passed just one.⁴  

• Social Safety Net. Minnesota opted into the ACA’s Medicaid expansion immediately; Wisconsin still hasn’t, and it took Michigan until 2014 to do so. Additionally, Michigan went from spending nearly a quarter of their total TANF funds on basic assistance in 2008, to less than 10% in 2021. Minnesota took the opposite approach, increasing the share of TANF dollars going to basic assistance from 15% to 25% during the same time period. Wisconsin dropped from 17 to 15 percent. 

What did that all add up to for three states that had been so similar in so many ways? 

• Politically. In 2008, Obama did 3 points better in Minnesota, 9.4 points better in Michigan, and 6.6 points better in Wisconsin than he did nationally. Like Obama, Biden did 3 points better in Minnesota than he did nationally, but he did 1.7 points worse in Michigan and 3.9 points worse in Wisconsin than he did nationally. In other words, Minnesota remained exactly as much bluer than the rest of the country, but Michigan and Wisconsin went from being meaningfully more Democratic than the nation as a whole to being less Democratic. 

• Prosperity. Since 2010, median household income in Minnesota increased by $11,155, compared to only $1,682 in Michigan and $5,356 in Wisconsin. The poverty rate in Minnesota has declined by 3 points compared to just 1 point in Michigan and a half point in Wisconsin. 

• Mortality Gaps. Michigan and Wisconsin lag behind Minnesota in life expectancy, and the infant mortality rate in Minnesota is 4.2 per 100k to Michigan and Wisconsin’s respective 6 and 6.8 – a gap that has only widened since 2008. This trend is evident in several other health metrics;  while the rate of chronic lower respiratory deaths has gone down in Minnesota, it has risen in Michigan and Wisconsin, and the difference in the number of deaths from cancer has increased as well, with Wisconsin experiencing 30+ more deaths per 100k than Minnesota, and Michigan 50+ more than Minnesota. 

• Gun Deaths. In the decade between 2008 and 2010, Wisconsin’s firearm deaths per 100k increased double what Minnesota’s did, and, during that same period, Wisconsin’s state legislatures received nearly 8 times the NRA donations that Minnesota did. 

Conclusion: Fruits of the Poisoned Tree

The nearly inevitable consequences of letting politicians regulate themselves are no different than the consequences of letting bankers, insurance companies or chemical companies regulate themselves – a disaster for the rest of us. At each juncture we are told not to worry – the market or elections will hold them accountable. But, of course, the first thing the newly deregulated entities do is change the rules so the market and elections won’t constrain them or hold them accountable. Thus, we should look at Tennessee – and the many other GOP legislatures engaging in similar abuses of power – through that lens.

Our country is flummoxed by what I’ll call the fruit of the poisoned tree. In this case, the fruits of the poisoned tree is the damage done by illegitimate regimes. Even in the unlikely event that Thomas is impeached, it would be of no moment to Harlan Crow; his investment has already paid off. The poisoned tree has borne its fruit, and the rest of us have to keep eating it. Read through the list of 5-4 decisions that have radically changed this country; that’s the toxic world we live in. I’m right there with everyone else who wants to see Thomas held accountable, just as much as I believe we need to hold Donald Trump accountable. But even if Clarence Thomas, and Donald Trump for that matter, are held fully accountable, we have very little chance to repair the damage they’ve done to our country already, let alone the cancers they’ve unleashed that have already metastasized in the federal judiciary, state legislatures, law enforcement, the media, and the military. It is far more difficult to dismantle structures of oppression and privilege than it is to establish them. 

That some object that decisions like Citizens United have helped both parties – after all, billionaires are supporting Democrats too! – merely reflects the extent to which our sense of democracy has been degraded. We, American citizens, not the Democratic or Republican Parties, are supposed to be the sovereigns. “Governments are instituted among Men, deriving their just powers from the consent of the governed.” The string of 5-4 Federalist Society decisions have shredded the notion that manifold actions taken by manifold billionaire-backed MAGA governments have anything like the consent of the governed.    

Remember that the media that now celebrates the victory for democracy in Wisconsin covered efforts to enact the Freedom to Vote Act as a partisan fight that would help Democrats, even though its provisions would have substantially reduced (if not eliminated) the kind of gerrymandering that can now be clearly seen as so antidemocratic. And, among Senate Democrats, concern for Michigan’s, Wisconsin’s and other states’ capture by gerrymandered majorities was not sufficient to make an exception to overcome a Republican filibuster which succeeded in protecting not just gerrymandered state legislatures, but the rash of legislation those legislatures enacted within months of January 6th to make it more difficult for people of color to vote and easier for MAGA to interfere with the election process in their states from beginning to end.

Misguided democracy advocates, political analysts, and journalists have long campaigned for greater disclosure as an antidote to corruption like Thomas’s, because “sunlight is the best disinfectant.” But for the unelected lawmakers on the Supreme Court, ethics rules aren’t binding, and avoiding the appearance of impropriety is optional. As for the elected lawmakers in MAGA-gerrymandered states, they often simply change the rules to keep themselves in power. 

“Accountability at the ballot box” has become an empty deterrent for politicians in safely gerrymandered districts. But with only two partisan “teams” with such diametrically opposed values to choose from, accountability is also an empty deterrent in competitive districts where no transgression is large enough to justify votes for the opposing side. 

The sunlight streaming in reveals the fundamental corruption of the system – but it also reveals how powerless we are to do anything about it under the status quo, reinforcing our learned helplessness. This may sound bleak, and it is. But James Baldwin put it best when he said: “Not everything that is faced can be changed, but nothing can be changed until it is faced.”

1. By “political class” I mean reporters and commentators in the mainstream media as well as others with important positions in government and elsewhere.

2. It should be emphasized that the only reason that Michiganders were able to rid themselves of a MAGA state legislative majority is that they were able to win a ballot initiative that transferred legislative line drawing to an independent commission. 

3. See NSCL’s Voter ID Laws for more detail.

4. Thanks to Elizabeth Nash at the Guttmacher Institute for these numbers.