Pipeline to Power: The Forty Year Plan to Capture The Supreme Court
My New Podcast Series Drops Tomorrow On Audible!
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Monday morning a friend texted me a story in the New York Times about Steve Calabresi, a renowned constitutional law professor and the co-founder and de-facto leader of the Federalist Society, the Conservative debate club that wields outsize influence and, which Donald Trump has publicly declared, hand-picked the three Supreme Court Judges nominated on his watch. Approximately 90 percent of the federal bench in the Trump era were either in or had been in Fed Soc.
According to the Times, Calabresi has now flip-flopped on the important question of whether or not the Constitution says Trump can be on the ballot for the 2024 election. Last month Calabresi said, in a blog post, Trump is ineligible. (The argument is, basically, that Section Three of the Fourteenth Amendment bans officials who then cause insurrections).
But then the professor changed his mind, arguing essentially that the Constitution says there’s a difference between those elected to office and those appointed to office.
He’s not the first legal thinker to change his mind about to how interpret the Constitution. And he’s a bit mystified that the Times bothered to put his thoughts on the front page. “Must have been a very slow news day,” he told me on the phone with a chuckle.
But the Times is right to care what Calabresi thinks. He’s a man of much greater political influence than most people realize. He’s the intellectual backbone and curator of the Supreme Court.
Truthfully, this change of heart feels minor compared to some of the other changes of heart Calabresi has experienced recently — and which he has shared with me in my new deep-dive podcast series, Pipeline to Power, that launches on Audible tomorrow.
(As an aside, I thank you all for bearing with me while I disappeared these past weeks to write it, record it, fact-check it, and wrap it. You’ll be hearing a lot more about it in coming days…for better or worse I will be back in your inboxes.)
I knew nothing about Steve Calabresi before embarking on this series. But his intellectual journey is the heart and soul of Pipeline to Power which tells the remarkable story of how our current Court and its 6-3 Conservative supermajority is the fruit of the seed planted when Calabresi was a student. He and two close friends felt disenfranchised at their respective law schools (Yale and Chicago) when Ronald Reagan became president. They formed a debate club to protect Conservative legal thinking in their liberal, elite academic bastions. It was called the Federalist Society. Calabresi was their leader. Protecting “free speech,” he says, was the club’s guiding mantra. “We didn’t set out to become powerful,” he says. And you can tell that that’s true.
Calabresi is nothing if not guileless. When I first encountered him, he’d botched setting his alarm on his iPhone and had slept through his morning. He got muddled as to whether we were doing audio or video and said he was uncertain of what to wear. He was, I might add, charming in his confusion. He reminded me more of Forrest Gump than of Voldemort, and I mean that as a compliment. I like him.
But, he told me he recognizes that over the past forty years Fed Soc HAS become powerful. It’s become a great deal more than a debate club oriented around defending the First Amendment. It’s become a sort of pod from which the ideas and the personnel — and, indirectly, the money — around the Court springs.
In 1985, with the help of Reagan’s Attorney General and consigliere Edwin Meese, with whom I spent a riveting few hours, the group institutionalized Originalism — the legal theory that guides the six Conservatives on our Supreme Court (it’s the idea you interpret the law according to the original intent of the framers — who, bear in mind, were not around to see the evolution of things like the Civil Rights movement, women voting, gay marriage, and so on).
And after Calabresi’s former law school mentor Robert Bork, who’d argued, among other things, that there is no Constitutional right to contraception, was rejected by the Senate as a Supreme Court Justice in 1987, the Fed Soc founders kicked into high gear to ensure that a “catastrophe” like this never happened again.
So, as Calabresi tells it, the club hired a guy called Leonard Leo as a sort of networker who fund-raised and treated Judicial nominations like political campaigns — albeit “unofficially.” Calabresi told me that Leo spent 20 percent of his time on Fed Soc work and 80 percent moonlighting on political stuff that Steve says — a bit stiffly — he both knew and didn’t know about.
It’s a convenient hedge, that allows Calabresi to distance himself in the following way from the influence he may have had in the selection of John Roberts and Samuel Alito to the Court.
Steve Calabresi: When Leonard was appointing judges for George W. Bush he never ever picked up the phone and asked me for suggestions. Now, if I made a suggestion to him, and he liked a suggestion, he sometimes acted on it…..
Most American voters have probably still not heard of Leonard Leo, who is reportedly under investigation by the DC Attorney General around his dark money groups, but he was critically involved in the successful fund-raising campaigns behind the nominations of John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Court. He also worked on the confirmation of Clarence Thomas, with whom he is close friends.
Just as critically Leo was involved with dark money groups that spent millions of dollars on successful campaigns to block efforts to confirm Supreme Court nominee Harriet Miers, George W. Bush’s close friend who could not be counted on to overturn Roe v. Wade, and Merrick Garland, while Barack Obama was still President, because, the self-serving argument went, it was too close to an election.
And when Donald Trump became the Republican nominee for President, Leo became the key selector of Trump’s Judicial candidates. Trump viewed Leo’s role as vettor as synonymous with Fed Soc, telling Pat Robertson on the Christian Broadcast Network: "The Federalist Society vetted very carefully great scholars, pro-life, very very fine people.”
But in my podcast Calabresi — somewhat sensationally — winds up questioning whether these negotiations — the “deal with the devil” — as he describes the machinations with Trump — was worth it to “produce good results.”
When Trump started to talk about moving the 2020 election, Calabresi tells me he started fearing that Trump was a fascist, reminiscent of Mussolini, from whom Calabresi’s Italian grandparents fled. Ok, so, yes, he conveniently wondered this AFTER the Conservatives had a majority on the Court that will likely remain for years. Nonetheless he said:
We have never before in American history, not even during the Civil War, moved a presidential election. Abraham Lincoln thought he was gonna lose in 1864, but he never thought he could cancel the 1864 presidential election.
As we know, instead of moving the election, Trump tried to overturn its results.
The events of January 6th and the role of then Fed Soc leader John Eastman in particular caused Calabresi a second change of heart around the philosophy he’d believed in all his life, ironically the very philosophy around which he’d created the Federalist Society: Free speech.
Here’s a snippet of our dialogue:
Steve Calabresi: I think there are ideas about which people can reasonably disagree and points where you can't reasonably disagree. And I consider Eastman's conduct in the events leading up January 6th is being beyond the pale.
Vicky Ward: Right.
Calabresi: I mean, I, I think that, you know, I think they incited a riot, basically. Five people died.
Ward: There is a line.
Calabresi: There's a line. Yeah.
Fed Soc is at the heart of the raging current debate about free speech on law school campuses around the country, especially Yale and Stanford, where the club has invited controversial speakers who have been shut down by furious protesters. Recently, Fed Soc has said it supports a proposed accreditation rule being studied at the legal education arm of the American Bar Association which would mandate law schools to protect free speech.
So, for Steve to come and out say “there is a line” is a very big deal.
Whether or not you agree with the perspectives in my podcast series, the overriding backstory of how this Supreme Court came in to existence is not well known and has never been more important. Supposedly we live in a Democracy. The role of the Supreme Court is an intrinsic part of that — and yet most voters have no idea of how the Justices are selected and all the money, influences and shenanigans behind that. Hopefully my new series will play a small part in shedding light on all this.
I will look forward to getting your feedback.