Joe Gaeta is the Director of Oversight and Engagement at Democracy Forward. Joe has over twenty years of experience as a lawyer in state and federal government. Most recently, he was Deputy Assistant Attorney General in the Department of Justice Office of Legislative Affairs, serving as DOJ’s liaison to Congress on oversight, nominations, and legislation. This Q&A was taken from a recorded interview and has been edited for clarity.
Q: The right-wing movement’s effort to take over the judicial system is well-funded and well-documented. Can you tell us a bit about how this movement came to be?
This story goes back at least 50 years. And it’s important to recognize that, as we think about where we are now and what can be done about it. Most people consider the conservative legal movement starting with the so-called “Powell memo,” which was written by Lewis Powell, who shortly after writing that memo was appointed to the Supreme Court. The Powell memo urged the corporate community to invest in courts at a time when they were expanding rights and protections for individuals as a result of the New Deal, the Great Society and the Civil Rights Movement. The Powell memo argued that that expansion was a threat to corporate America. And in the 50 years since, the corporate community has built an ideological movement to capture the courts and to control them. That’s really what we’re seeing come to full fruition today.
Q: Did the Trump administration impact the movement’s progress at all?
The Trump administration has really made this project come to fruition faster probably than at any other time. There was so much going on in the Trump administration, that people were distracted – there was a crisis literally every day. But there were also many in his administration who were focused like a laser on the judicial confirmation process, stacking the bench to a degree and with the means that have never been used before. These nominees came of age in a culture of legal theories that the right had been building for decades and we’re seeing that play out in decisions at all levels of the judicial system.
Q: Let’s dig in a little bit deeper. Why focus on the judicial system? Is this not a social and economic agenda they could achieve legislatively?
Exactly. This is not an agenda that is popular or could be achieved through the democratic process. Helping the environment, implementing sensible gun control measures, and supporting civil rights are all broadly popular across the United States. This Court has rolled back progress on those and more at every turn which is why it has been such a good strategy for the right to invest in the courts. Not only are they getting the outcomes that they want on policy, but the courts have also allowed the right to rig the rules of the game. If you look at decisions like Citizens United or Shelby County, these are not just policy outcomes, they are decisions that influence the entire political process. That’s why the money that is flowing into the judicial selection process and the conservative right wing legal movement is the same money that’s flowing into the political process. The political and judicial strategies operate in lockstep.
Q: You mentioned the flow of money from the right as a means to influence the judicial system. Can you talk about the role of outside donors or party affiliated organizations and the nomination and appointment process?
There’s money at every stage of this process, and there’s definitely a political side to it, which focuses on the Senate confirmation process. Historically, judicial nominations were largely not controversial. They were a Senator’s prerogative. They were often a way for a Senator to reward supporters or acknowledge leadership within the local legal community. That’s classic local politics. With Trump in the White House and Republicans holding the majority in the Senate, the right was free not just to fill Supreme Court vacancies, but to stack the federal circuit and district courts. But there was only one thing stopping them from filling every existing and new vacancy with a member of The Federalist Society: the “blue slip.” This longstanding senatorial courtesy is actually a blue slip of paper that the Chairman of the Senate Judiciary Committee sends to Senators from the state where a judicial nominees would sit. If one of the Senators didn’t return the blue slip, the Chairman would not advance the nomination. The nomination would die in committee. The blue slip forced some degree of cooperation between the President and Senate regardless of party.
Republicans scrapped the custom during the Trump administration to push forward ideological circuit court nominees despite Democratic objections. That act wasn’t in Senators’ self-interest: they gave up their power to influence judicial nominations. When I see someone not appearing to act in their self-interest, it makes me wonder why. And that’s where the political influence and spending comes in. The funders and proponents of the conservative legal movement, supporters of the groups that are developing radical legal theories and appearing in courts, are also making political expenditures to influence the nomination process in the Senate.
So it’s a soup to nuts strategy.
Q: What are some of the harmful legal theories that you’re keeping a particular eye on?
We see in this court that there is an outright hostility to doctrines that have developed over decades to give Congress the ability to legislate and choose, if it wishes, to delegate to administrative agencies the ability to use their expertise to make specific rules and address emerging policy challenges. Just this last term in West Virginia v. EPA, the Supreme Court has given the right-wing movement a new tool to wield against the administrative state and against Congress: the Major Questions Doctrine. After this decision, if a question is, in the opinion of a court, of “significant political and economic consequence,” then Congress has to have spoken with exacting precision to authorize an agency to issue a rule in that area.
Why is the court looking at the political significance of a rule that an agency is doing as part of a legal test? It’s another way for judges to inject their own political views about a particular regulation into the judicial process. That only works in that direction; it doesn’t work in the direction to support agency regulation, only to strike it down. In the four or five months since that decision, Republican Attorneys General and right-wing litigants are raising Major Questions Doctrine in litigation on existing regulations and in rulemaking as a matter of course.
Q: What, if any efforts are underway to address and reverse the trend?
It’s important to remember that Congress has broad authority to structure how the courts operate, what kinds of cases they hear, and who sits on the bench. I am not naive, and I don’t expect congressional action soon. But if there is any sliver of a bright side to a decision like Dobbs, it is the clearest signal to the American people that rights they thought were guaranteed can be taken away by an activist judiciary. There are remedies to that. There’s a lot of talk about the personnel on the Supreme Court, term limits and expanding the numbers. Those are valid ideas worth talking about. There are also ways to limit the kinds of cases the Court hears, limiting it to cases that really do address disputes in the lower courts that need a definitive resolution. Too often, this Court hears cases, indeed encourages cases, that certain Justices want to decide to advance their personal views of the law and policy.
Q: What else gives you hope?
Our judiciary is very broad, and very deep. We have circuit and district courts, we have state courts. The vast majority of lawyers do not practice for the Supreme Court. The vast majority of judges are not Supreme Court justices. The rule of law and equal justice under the law, as imperfect as we have been in making that aspiration a reality, are deeply ingrained in what it means to be an American. Most lawyers work hard every day to represent their clients, meet their ethical obligations, and maintain the integrity of our legal system. It is an affront to their professionalism when the Supreme Court ignores precedent and operates in a blatantly political manner. We’re seeing them speaking out more and more. We’re seeing more and more Americans realize that a political Supreme Court lacks legitimacy in our constitutional system. Right-wing efforts to control the court and subvert democracy are more exposed than ever. Ultimately, how we fix the courts is a political question. It’s whether there is enough will make a change, but I really have faith that there will be and we can get that change over time. And in the meantime, organizations like Democracy Forward, have to be litigating in courts around the country, building up good progressive ideas, and fighting back against ideas that are really harmful to democracy.