Wikidworld (#149) / The Rule of Law or the Law of Rule: Leonard Leo and the Legal Conservative Moment
I agree with those who would say that Leonard Leo is the most dangerous threat to democracy in America. But for the legal conservative movement, threatening democracy seems to be the point.
On October 11, ProPublica published a 10,000-word article (and podcast) about Leonard Leo, the squat, penguin-like, bespoke-suit-wearing, large-living consigliere of the legal conservative movement in America. The article was based on interviews with more than 100 people close to Leo and a deep dive into thousands of pages of court documents, tax filings, and emails.
THE ITALIAN JOB
Like Supreme Court Justices Antonin Scalia and Samuel Alito, Leonard Leo was raised in New Jersey by Italian-American parents. A devout Catholic, Leo from an early age was cognizant of the interplay between financial wealth, religious faith, and political power. He reported to ProPublica – clearly with pride – that “he was so effective at raising money for his senior prom and class trip that his classmates nicknamed him ‘Moneybags Kid.’”
The ProPublica piece chronicles Leo’s role in his 40-year career as a backroom strategist, networker, fundraiser, and coordinator on behalf of the Federalist Society and its web of right-wing — largely Catholic — businessmen, intellectuals, lawyers, and politicians committed to the ultimate political heist: the transformation of the American judiciary into a greased political machine operating at every level of the nation’s court systems. As the executive director of the Republic Attorneys General Association stated, “Leonard Leo has done more to advance conservative causes than any single person in the history of the country.”
In a sense, however, the ProPublica story concluded where it should have begun. The tail paragraph noted that Leo’s vision for the future of the American legal system extends well beyond a judiciary packed with Federalist Society conservatives. His vision comprehended a country guided by higher principles. “That’s not theocracy,” he recently told a conservative Christian website. “That’s just natural law. That’s just the natural order of things. It’s how we and the world are wired.”
In this final paragraph, the ProPublica story referenced “natural law” for the first and only time.
THREATENING DEMOCRACY MIGHT BE THE POINT
I thought this lapse was hilarious, because of course natural law is actually the center of the story, intellectually speaking at least. But the piece also confirmed me for how angry and punitive Leonard Leo and his cohort of fellow Catholic conservatives are at their marrow. It's a dark portrait. They're incredibly effective, of course, but there's no sense in which they fit into any model of American history or American traditions that I'm aware of.
Which likely helps to explain the remarkable success of the legal conservative in transforming the foundations and the culture of American politics and American law in the last five decades. The liberal opposition has routinely and naively assumed some consensus on process-driven rule — that in the United States, even if we disagree on legal interpretation, we all agree that no one is above the law. We all remain humble before the law.
But as the lavish displays of wealth and consumption among members of the conservative judiciary indicate, humility is perhaps the attribute most scorned and pitied by legal conservatives. As a result, their liberal counterparts only continue to get punched in the nose. I agree with those who would say that Leonard Leo is the most dangerous threat to democracy in America. But for the legal conservative movement, threatening democracy seems to be the point.
THE STATE OF AMERICAN LAW
Around the world, the shattering of liberal norms concerning the social and cultural function and meaning of the law has accompanied challenges to democracy from a rising wave of autocratic regimes that have to varying degrees claimed control in countries such as Russia, Poland, Hungary, Turkey, Israel, Tunisia, India, Brazil, Nicaragua, and Venezuela.
Much as we historically have imagined ourselves to be immune from such challenges, the rule of law is also in danger of collapse in the United States. The World Justice Project publishes a global “rule of law index” that ranks every nation’s commitment to and enforcement of the rule using to eight specific measures (pertaining to fundamental rights, open government, absence of corruption, order and security, civil justice, criminal justice, etc.).
Between 2017 — when Donald Trump became president — and 2021, the U.S. ranking fell precipitously, corresponding this these years to declines in Myanmar, Nicaragua, and the Philippines. While the United States had recouped some of these losses by 2022, polls indicate an alarming decline since 2016 in the trust of U.S. citizens in its legal institutions and legal norms.
The United States currently ranks 26th among nations on the Rule of Law Index — just ahead of Portugal and Costa Rica and just behind Uruguay and Latvia. Among the 140 ranked nations, Denmark and Norway score highest.
Americans do remain committed the principle that no one is above the law. Polling numbers here are consistent across party lines, with 78 percent of Democrats and Republicans stating that one should obey the laws of the government irrespective of the party in power and 86 percent agreeing that the president should always obey the law and the courts.
However, Leonard Leo’s amazingly successful efforts to seed the federal and state judiciaries with right-wing stalwarts committed to the substantive, “common good” precepts of Catholic natural law are fully aligned with the autocratic playbook of nations such as Poland (#36), Hungary (#73), Russia (#107), and Turkey (#116), for whom the law is not an instrument of justice, fairness, and democratic rule. According to the authoritarian playbook, the rule of law is merely an instrument for organizing, maintaining, and exercising power. In this grand inversion, the rule of law transforms into the law of rule.
PROGRESSIVE KU KLUX KLAN
We’ll let Leonard Leo have the last vituperative word here. In 2022, Leo was the recipient of the John Paul II New Evangelization Award from the super-creepy Catholic Information Center — previous recipients had been Scalia and Princeton scholar Robby George.
As often happens in these cloistered settings, rather than strike a celebratory tone, Leo went deep and dark, collapsing into a diatribe about the current threat to Catholics from what he called “vile and immoral current-day barbarians, secularists and bigots,” which he termed “the progressive Ku Klux Klan.”
These opponents, he said, “are not just uninformed or unchurched. They are often deeply wounded people whom the devil can easily take advantage of.” In the aftermath of the Dobbs decision, he announced, these barbarians were “conducting a coordinated and large-scale campaign to drive us from the communities they want to dominate.”
THINGS YOU MIGHT WANT TO READ
We Don’t Talk About Leonard: The Man Behind the Right’s Supreme Court Supermajority (ProPublica, October 11, 2023)
The Resurgence of ‘Natural Law’ Theories Should Scare Us All (Current Affairs, March 2023)
New Challenges Threaten U.S. Rule of Law Recovery (American Constitution Society, July 31, 2023)
Trump, Wisconsin and the Eroding Trust in the Rule of Law (Washington Post, April 6, 2023)
Wisconsin Republicans Retreat From Threats to Impeach Liberal Justice (New York Times, October 12, 2023)
Poland Begins to Look Beyond the Vote, to Unwinding an ‘Illiberal Democracy’ (New York Times, October 16, 2023)
The Rule of Law (Stanford Encyclopedia of Philosophy)