Law & the Courts

There Is Nothing Nefarious about Conservative Christians Influencing the Judiciary

Leonard Leo from the lobby of Trump Tower in New York City, November 16, 2016. (C-SPAN)
The movement for conservative legal reform has been open about its ideas and goals.

The Catholic plot is almost complete. At least that’s what you’d think after reading a long, widely shared Daily Beast article about Leonard Leo, the executive vice president of the Federalist Society and a man who’s undeniably influential in Trump’s judicial-nomination decisions. The piece — by Jay Michaelson — reads like it was torn from the pages of The Da Vinci Code.

Mysterious and secretive religious orders? Check.

Dark and shadowy funders working behind the scenes? Check.

Ancient philosophies arresting modern progress? Check.

No, really, the profile is something to behold. It includes paragraphs like these:

Leo is a member of the secretive, extremely conservative Knights of Malta, a Catholic order founded in the 12th century that functions as a quasi-independent sovereign nation with its own diplomatic corps (separate from the Vatican), United Nations status, and a tremendous amount of money and land.

The Knights, which recently have tussled with Pope Francis and resisted his calls for reform, take their own set of vows, as monks do. On the surface, the primary work of the order is humanitarian work around the globe, but it is also home to noted Catholic conservatives including Cardinal Raymond Leo Burke, a frequent foe of the reformist pope.

There it is again — “their own set of vows.” Remember the attacks on Amy Coney Barrett for taking a “loyalty oath” to the group People of Praise? Yes, Michaelson includes a literal “to be sure” paragraph, but it’s hardly enough to remove the stink of religious bigotry:

To be sure, none of this is to repeat the odious claims of anti-Catholicism of papist conspiracies and dual loyalty. But Leo has spent a career shaping the federal judiciary to reflect rigid, conservative religious dogma.

No, of course this isn’t about a papist conspiracy, but note how much he’s advanced papistry.

Please.

Indeed, the entire framing of the piece is found in this key paragraph — a laugh-out-loud summary of the last two decades of conservative legal activism:

“Leonard Leo was a visionary,” said Tom Carter, who served as Leo’s media relations director when he was chairman of the U.S. Commission on International Religious Freedom (USCIRF), in an exclusive interview with The Daily Beast. “He figured out twenty years ago that conservatives had lost the culture war. Abortion, gay rights, contraception—conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.”

This is fundamentally wrong. On abortion, the judicial frameworks established by Roe and Casey quite frequently block laws enacted by elected legislatures. Obergefell (another progressive judicial construct) swept aside dozens of state marriage laws, including laws recently enacted by popular referenda. And contraception? What is he even talking about? The only significant contraception controversy of the last half-century involved the effort of a very small number of religious employers to protect their rights of religious conscience — a position, by the way, that was very popular with GOP voters across the land.

But what do each of these issues have in common? They were “settled” in the progressive mind not by elections but by Supreme Court justices. And in the progressive mind, their legitimacy has nothing to do with their popularity. Otherwise, why object so vigorously to overturning Roe? After all, it would return abortion rights to the democratic process. Where you have nothing to fear, right?

And, by the way, this 20-year project — to have the slightest chance of success — depended on winning a host of elections, including in the Senate and for the Oval Office. And in these elections, the nature of the judiciary was one of the principal issues on the public mind.

So much for the “lost” culture war.

But I will agree with Carter (and Michaelson) in one respect. Leo is a visionary. And so are many others affiliated with the Federalist Society and other organizations who have constructed a conservative legal and judicial network out of virtually nothing. And there was nothing “dark” or “secret” about it.

I remember well the conservative legal desert that existed in 1991, the year I started law school. The legal academy was (and in many ways, still is) an intolerant place. At Harvard, for example, the “crits” — critical legal theorists — were flexing their muscles, and conservative legal scholars were hard to find.

The Federalist Society’s response was open, obvious, and appealing. At a time when law schools were often stifling debate, it went out of its way to bring both sides to campus. At a time when conservative students felt alone and embattled, it created opportunities to network. In fact, Federalist Society events are so omnipresent at American law schools — and originalist and textualist legal philosophies so openly discussed and debated — that the only way you can say that anything is truly mysterious about conservative legal reform is that occasionally donors to organizations that promote it are anonymous. This is the “dark money” that casts its looming shadow throughout Michaelson’s piece.

And who can blame donors for wanting to remain anonymous? We live in the era of economic boycotts, online shame campaigns, and personal confrontation. The right to anonymous speech stretches back to the founding of the republic and has been essential to many of America’s most important social-reform movements, including the civil-rights movement.

In a divided, suspicious, and often downright paranoid nation, it’s always tempting to see if there’s a “story behind the story.” Progressives are often lifting up rocks, looking for the hidden power of “strange” Christian sects. Remember the Dominionism scare from a few years back? Now it’s the Catholics’ turn in the crosshairs.

But the real story is more mundane. Christian conservatives are using the power of their voice, the strength of their intellect, and the assets of their funders to advance ideas in the public square. For the Left, there’s no conspiracy to unmask. There’s only a debate to win, and Christian conservatives are proving to be formidable opponents indeed.