Behind The Right-Wing Campaign To Control America's Judiciary
Three words: demographics, issues and elections.
Let’s start with demographics, for which we may as well substitute the word, race: Everyone knows by now that white people are projected to be in a minority in this country within the next 25 years or so. Every time some expert does a study of demographic trends, they move the date back. They were saying “by 2050” even just a few years ago. Now the date is 2045 or even 2040 in some stories I’ve seen. What does this mean? The panic has set in on the right. That’s why Tucker Carlson pushed “the great replacement theory” so relentlessly on his show before Fox News fired him. Carlson’s audience was hugely white, rural, and old – the exact people who have been clutching their pearls about the Browning of America.
It used to be the case that if you lived in the Deep South, or in the rural areas of the Midwest, the only non-white people you might run into as you made your rounds would be Black. In the Deep South, they spent a century after the Civil War to Keep Them In Their Place. The civil rights and voting rights laws of the mid-60’s made it a lot more difficult for the white people who ran things in the Deep South, but they kept hammering at it, and finally they got a Supreme Court that gave them Shelby County v Holder, and we saw what they did then. Within days, Southern states followed by Midwestern states started to impose voting restrictions like photo ID requirements that had been illegal under the Voting Rights Act of 1965. It has gone downhill from there ever since.
But rural areas of the Deep South and Midwest were not able to wall themselves off from immigrants because there were too many shitty jobs white people didn’t want to do anymore, like working the floor in chicken factories and slaughterhouses. White people started wanting to earn more than serf-level-wages, so the big chicken and meatpacking companies went looking around and in some cases began importing immigrants from Mexico and Central America into the communities around the chicken and meat packing plants so they would have cheap labor they could rely on.
That meant brown people moved into areas that had populations consisting only of white and black people. You started to see Mexican restaurants in rural Mississippi and Missouri and Alabama, and Guatemalan restaurants in Iowa and the Dakotas. White people were not being replaced, of course, nor were Black people. But to the rednecks watching Fox News, it seemed that way.
School systems that had never had a foreign-language speaking kid were suddenly teaching in two, three, four languages, and in the cities, in more languages than that. It didn’t take long for The Fear to set in, stoked at first by far-right extremists and actual Nazis like Nick Fuentes, followed by the likes of Tucker Carlson and the rest of the Blonde Battalion on Fox News. The great replacement was happening. Something Had to Be Done.
Then there is the issue of hugely unpopular issues the right has backed itself into a corner by pushing for the last 50 years or so, the anti-abortion movement being the prime example. They beat the abortion drum to gin up votes for decades, and in Deep South states, it worked for them, and even in states like Missouri and Nebraska and elsewhere. They had the big issue of Roe v Wade to use as a cudgel: vote for us, and we’ll take down Roe and abortion will be a thing of the past.
Well, the issue of abortion did work for them for a long enough time that they were able to get some bought-and-paid for anti-abortion justices on the Supreme Court, and low and behold, they finally struck Roe down. What happened next? Abortion became a winning issue not for the right, but for the other side. Even Kansas passed a referendum upholding the right to abortion, for crying out loud! Abortion was such a winning issue in the 2022 midterms that Democrats held onto the Senate and caused Republicans to have the worst out-of-power election results in history, hanging onto the House only by the slimmest of majorities.
Abortion isn’t the only unpopular issue the right has been relying on. Now they’re pushing religion in places like Texas and the Deep South. Because they control state legislatures, we can look for a spate of bills to put the Ten Commandments in classrooms and allow school prayer, already happening in Texas and soon to come in other conservative states. But forcing conservative Christianity down the throats of kids isn’t popular, not even with mainstream Christian churches, and certainly not with people who are not religious and the Jewish and Muslim communities, just to start with.
The gun issue isn’t popular either. Seventy percent of Americans think there should be more laws controlling the sale and use of firearms. The Republican Party is pushing gun rights because it appeals to their gun-owning base, but the issue doesn’t have much appeal beyond that. As more schoolchildren are killed in more classrooms, and more kids and moms and dads at shopping malls and Walmarts and grocery stores are shot down as they push their carts, the gun issue is going to lose more and more support.
These are loser issues for the right, long term. They’re stuck with them because they used them for so long to get votes, they can’t abandon them now. But even in gun-happy states like Tennessee, the site of yet another recent school massacre, the governor has called a special session of the legislature to do something about guns, even if the bills that are on the agenda are really weak tea, like a red flag law they already should have had in place. They won’t touch background checks or gun shows, not yet, anyway, and forget about banning the sale of mass-murder machines like the AR-15. That means the gun issue is going to bedevil them for the next decade at least and maybe longer as more and more Americans begin to call for some commonsense controls on these deadly weapons.
That brings up the thing that ties it all together: elections. The Republican Party is already losing elections on the abortion issue. It’s only a matter of time before they start losing elections because the far-right controls the party and won’t give any ground on guns. I won’t go down the list of elections they lost recently – I pointed out a few yesterday – but Republicans are going to have a hell of a time hanging onto the House and the Senate in 2024, and the way their candidates for president are behaving about abortion, including Trump, DeSantis, and even lily-livered Niki Haley, they’re going to have a hard time dislodging Biden from the White House. With time, this is going to get worse, not better, for Republicans.
Their issues are unpopular, the Browning of America proceeds apace and they’re losing elections. So, what has the right-wing decided the problems is? Elections themselves. We’ve seen it with Trump and Trumpism, that elections aren’t legitimate unless Republicans win them. But even that doctrine, if you can call it that, isn’t enough to protect them and their interests, because the other problem with elections is that they are temporary. Elect people to a legislature, and you’re just renting their votes as long as they serve in office.
But put someone in a lifetime appointment to a federal judgeship? That’s not renting, that’s buying. So that has become the far-right solution: Control the judiciary. The Federalist Society was formed to put right-wingers on the courts, and with the right-wing justices they’ve been able to put on the Supreme Court, well, they’ve taken care of that. Trump managed to put many judges on lower courts in the mold of Judge Matthew Kacsmaryk in Texas, who practically wrote a New Ten Commandments in his decision against the use of the drug Mifepristone for abortions. The right-wing judges are expected to rule on cases seeking to overturn laws that are passed by Democratically controlled state legislatures and the Congress, if the Democrats take back the House, and hold onto the Senate and White House.
And now the likes of Leonard Leo and his billions are moving on to state judgeships, especially on state supreme courts, to kill liberal legislation and uphold right-wing free-for-all laws on guns and state bans on abortion. To further lock-in their control over abortion laws, Republican-controlled legislatures are now trying to pass laws around the country to restrict or eliminate altogether the referendum power of the citizenry to write their own laws or even pass amendments to state constitutions like Kansas did with abortion.
So, that’s what they’re reduced to: Put some droolers on the bench in courts, both federal and state, who will hang onto whatever is left of the right-wing agenda as doom of the demographic flood washes over them. I used to have some hope that the right-wing judge thing would begin to peter out because of the young age of many of the judges Trump and other Republican presidents put on the lower courts. These people are Republicans, remember. Like the rest of their ilk, they want to live in nice suburban mini-mcmansions and drive nice cars and belong to the country club so they can golf on weekends, and they want to send their brilliant off-spring to Ivy League schools some of them even went to. But federal judges don’t earn the kind of money that pays for that level of lifestyle, so Republicans ensured that at least some of their appointees to the bench had family money, guaranteeing they wouldn’t have to worry about sending little Jack or Jill to Harvard when the time came.
As the rest of the Republican young judges get older, however, the day will come when they’ll have to pony up the money for private school and college, so some of them will indeed quit and go into a big law firm or cushy corporate counsel job that will pay the bills and keep them out there on the Back Nine betting money on each hole.
I was convinced my theory about Republican judges quitting the bench for better lifestyles would work until recently, when we saw how a right-wing billionaire, Harlan Crow, has been greasing the luxo-skids for Clarence Thomas by slipping money to his wife Ginni through the Heritage Foundation and some alleged non-profit she founded. Leonard Leo jumped in there, too – remember, he slipped Ginni some cash laundered through Kelly Anne Conway with the admonition to “keep Ginni’s name out of it.”
We don’t yet know the total amount of money Leo and Crow slipped to Ginni Thomas to keep their pet justice Clarence happy and voting the right way, and we may never know how much it was. But we can now see what they’re up to. Leonard Leo will doubtlessly use some of his $1.6 billion nest egg to feather the nests of lower court judges as well, and there are probably other billionaires and other funding sources out there figuring ways to funnel money to lower court judges as we speak.
The Supreme Court has thrown open the door to the kind of corruption exercised by Crow and Leo with its decisions stripping anti-corruption laws of their power. Famously, in 2016, Virginia Gov. Bob McDonnell was convicted on several counts of corruption for secretly accepting gifts from a wealthy businessman in return for helping to promote a dietary supplement he owned. You’d think that would be pretty straightforward, wouldn’t you – hosting the businessman at a state luncheon in the governor’s mansion so he could meet with health officials from state universities, in return for some $175,000 in luxury gifts.
Not for the Supreme Court, which unanimously overturned the jury verdict because what McDonnell did for the dietary supplement guy didn’t amount to “official acts” on his behalf, a requirement of the bribery law.
Is any of this sounding familiar? Justice Thomas apparently believes that under previous Supreme Court decisions what Harlan Crow did with all the expensive gifts he gave and the Heritage Foundation cash he slipped to Ginni didn’t amount to bribery either, so it was peachy-keen okay to go on those trips on yachts and private jets and get Crow to pay for his grand-nephew’s education, buy his momma’s house, and let Ginni not show up for all her no-show jobs around Washington, too. Just his due as a humble Walmart-loving servant of the people, that’s all.
They’re going to try to hang onto whatever control they have over judges as long as they can, and they’ll figure out ways to get money, services, luxury vacations, and country club dues to them somehow. According to what we may as well call the Thomas Doctrine, it will be okay for wealthy businessmen to pay for the education of the children of federal judges as well.
Corrupting federal judges and even Supreme court justices is just a fact of life we’re going to have to learn to live with, even as we use everything we have at our disposal to hang onto the White House in 2024 and elect another Democrat in 2028 and on into the future.
What else can we expect from these thieves and fools? Well, be on the lookout for white Americans, beginning with the wealthier among them, to wall themselves off from the Encroaching Hordes in more and more gated communities with walls or fences around them. It’s already happening in wealthy areas. Developers are attempting to build gated communities in the Hamptons and on Martha’s Vineyard, believe it or not, and they are already legion in places like Beverly Hills and other monied enclaves.
It's going to trickle down to the middle class, you just wait. They’ll start putting all-white encampments in the exurbs and move out from there. It’s just a matter of time before there are enough non-white people in states like Mississippi and Alabama and Kansas and Missouri that you’ll start to see gated communities outside small towns in rural areas.
There have always been two Americas – white and non-white, wealthy and poor, urban and rural, and especially the Old Confederacy and practically everywhere else. The way the two Americas structure themselves is what’s going to be interesting. There was a trend story this week about how young college graduates are moving away from coastal cities, probably out of economic necessity, so trends like that will begin to even things out geographically and demographically.
But for the time being, we’re stuck with the Leonard Leo’s and the Harlan Crow’s of the world trying to buy judges and put them in their back pockets so they can hang onto what’s left of the America they think they remember – the one that was run by white males who had all the land and money, and to hell with everybody else, women included.
Get ready: We’re going to have to fight them every step of the way.
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.
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