Leonard Leo, Natural Lawyer
The Supreme Court majority is built around one man’s personal theology, and that theology sucks.
[if you are reading the email version of this piece, it may be truncated for length and you can link to the full piece on Substack by clicking on the title.]
"Consider Harriet Miers. Of course her nomination is absurd. But the President didn’t say he thought about her selection. He said "I know her heart". Notice how he said nothing about her brain? He didn't have to. He feels the truth about Harriet Miers."
The above quote is from the very first episode of The Colbert Report, in the very first example used to illustrate what “truthiness” was, the idea that you don’t need to know or look up something if you just feel it to be true. This is, presumably, what George W. Bush was doing in 2005 when he nominated a woman to the Supreme Court with no published legal opinions or academic papers, whose highest level of public service had previously been commissioner of the Texas state lottery. While Bush tried to push her evangelical Christian faith as a selling point to the Senate, her nomination eventually fell apart and Sam Alito sits in her seat today, as technically the most progressive Italian-American in the history of the Supreme Court.
The guy who advised Bush against Miers’ nomination, and the guy who plucked Alito out of relative obscurity, is Leonard Leo, probably the most powerful Catholic in American government and maybe the most powerful man in American government overall, which is especially impressive considering that he doesn’t have an actual government job. As “executive vice president” and de facto leader of the Federalist Society, as well as advisor to Presidents Bush and Trump on judicial nominations, Leo oversees the main professional pipeline for Republican judicial nominees, and personally oversees the vetting and confirmation processes for Supreme Court nominations. Justices Alito, Gorsuch, and Kavanaugh, as well as Chief Justice Roberts, are all in their jobs today expressly because of Leo’s work, and would not be in those jobs today if Leo hadn’t signed off on them. Justice Thomas’ confirmation predates Leo’s role in the Federalist Society, but as Leo was friends with Thomas, he also played a big role in shepherding him through his tumultuous confirmation hearings. If Amy Coney Barrett ever gets promoted up to the Court, it will also be with Leo’s approval.
This means that the entire Supreme Court majority - five, maybe someday six Catholics - can be traced back to the actions of one man, a man with his own specific understanding of Catholicism and how judges should bring it into their work. In recent years, there’s been some good investigative work, mainly in the New Yorker and Washington Post, on the reach of Leo and the Federalist Society, and how much hold they actually have over the most powerful branch of the federal government. But I want to investigate Leo’s theology, the way he views humanity’s relationship to God, and how he thinks that should impact the way that judges do their jobs. It’s built on a tradition in Catholicism called “natural law” theology, and it’s...not great. We can find references to natural law across the opinions of our current conservative Court majority, and we need to understand how it works if we want to understand how the Court makes its decisions today. Because natural law, as a field, is not very close to, well, actual law, and it’s a lot closer to the “truthiness” that Stephen Colbert described up above.
CHAPTER ONE - A MONEY-PRINTING MACHINE AND A JUDGE-PRINTING MACHINE
It’s extremely difficult to overstate how successful Leo has been at bringing his vision to life in the federal judiciary. As one of his colleagues put it:
“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...The Christian right has been written about a lot, but hardly anyone talks about the Catholic right. Four Supreme Court justices—they’re more successful than anybody: the NRA, the Israel lobby, Big Pharma, no one else has had that kind of impact.”
Not only did he find a way to inject his worldview into law, but Leo found the best way to ensure that even as public opinion moved and changed, the judicial branch could keep that vision in place. So he runs each Supreme Court nomination battle like a political campaign - and, honestly it is a political campaign, according to Leo in 2006: “As long as courts act as political institutions, confirmations will likely resemble political campaigns. The stakes are just too high...It is sad to see that a judicial confirmation process needs to resemble a political campaign, but that is where we are. We needed to be preemptive, rapidly reactive, and very strategic.” So, preparing for a confirmation includes fundraising and hiring a PR agency. It includes doing all sorts of on-record and background interviews with reporters to kick up a favorable media cloud around the candidate. It includes internal polling to figure out how to frame the candidate’s image most effectively. It includes digging through all of the potential skeletons in a judge’s closet. It includes getting conservative voters to phone zap their senators and push for confirmation. Of course, this isn’t really unique to the Republican Party, this is how the Democrats do it as well. What’s unique to the Republican Party - besides the fact that they’re generally much better at getting all of this done - is that through the Federalist Society, they’ve formally developed this network of attorneys, judges, and law school students to support the process and ultimately feed candidates to the president and senate.
If anything, that failed Harriet Miers nomination from 2005 is one of the best examples to illustrate Leo’s power, because it’s the last time a Republican president tried to get someone on the Supreme Court without his help, and her nomination fell apart within a month. Like everyone else, Leo was caught off-guard by the Miers nomination, but he had also just come off of his success getting Roberts on the Court, and was still working with the White House to fill the other open seat. Was Leo willing to trust Bush on this nomination, and dedicate his substantial resources and network to support her confirmation? Well, as The New Yorker put it:
“Miers had a nonexistent profile in Federalist Society circles. “By the time of the Miers nomination, the Federalist Society had created a signalling mechanism within the conservative movement,” Hollis-Brusky said. “The message Leonard and others had sent was: If you want to rise through the ranks, we need to know you. And that’s what they were all saying about Miers—‘We don’t know her. She is not one of us.’ ”...Leo had taken a leave from the society to help the White House fill the Court vacancy, so he was obligated, at least initially, to support the Miers choice. “I made it clear to people in the White House that I thought her nomination was going to be a heavy lift.”
So basically this was the scene in The Irishman where Leonard Leo - played by Joe Pesci - takes aside George W. Bush - played by I guess Robert DeNiro - and says "look, some people - not me, but some people - are saying that this is a bridge too far. And some people - not me, but some people - think you need to explain this to Harriet Miers and say it is what it is."
And if you want to get a conservative on the court, you need Leo’s help. Getting the Federalist Society involved brings you a deep bench of judges, white papers in law journals to lay out the runway for the nominee, op-eds in the national papers to juice public opinion, and, more important than anything else, a shitload of money from well-heeled donors. The New Yorker quoted Clarence Thomas speaking at one of the Society’s events, and then kind of threw some pretty funny shade at him and the Federalist Society in general:
“Thomas said, “I look at this huge audience . . . and I can only imagine the courage of a few young people who came up with yet one more idea: let’s start something. Let’s start an organization where we can actually talk about ideas, where we can actually talk about the Constitution and its structure, and how that structure is to protect our liberty. . . . Can you imagine the courage that these young people had?” The students did start the Federalist Society from scratch, but it is less clear that tremendous courage was required. Within just a few years, the group was embraced and funded by a number of powerful, wealthy conservative organizations, which eventually included foundations associated with John Olin, Lynde and Harry Bradley, Richard Scaife, and the Koch brothers.”
You don’t really have to have “courage” if you have a money-printing machine and a judge-printing machine, which would eventually grow to over 70,000 members. And between the Federalist Society and a related group, the Judicial Crisis Network - perhaps best known for supporting Mitch McConnell in keeping a Supreme Court seat vacant until Donald Trump became president - you have a ton of money moving around to fund inaugural committees and Senate re-election campaigns, as well as set up polling and media hits to support the confirmation process.
So Leo is certainly conservative and very invested in having a conservative judiciary, but he’s also Catholic, and arguably he’s a Catholic first and foremost. So we also should understand what kind of Catholic he is.
CHAPTER TWO - THE BAD KIND
Leo was a lapsed Catholic in his early life, and then his daughter, who suffered from spinal bifida, convinced Leo to start going to Mass again right before passing away at a young age. Not only did he start attending Mass again, but he really went all-in on Catholicism and joined the Knights of Malta, a Catholic lay religious order dating back to, well, actual knights, and involved in medical relief projects throughout the world, similar to the Red Cross. The Knights of Malta have existed for a millennium, enjoy special diplomatic status where they have their own seats at the UN and can issue their own passports, and are only occasionally suspected to be a pure evil network of black-robe-clad new world order operators, as detailed in this 2011 profile in Foreign Affairs:
“Because of its secretive proceedings, unique political status, and association with the Crusades, the order has been a popular target for conspiracy theorists. Alleged members have included former CIA Directors William Casey and John McCone, Chrysler Chairman Lee Iacocca, and GOP fixture Pat Buchanan, though none have ever acknowledged membership. Various theories have tied the Knights to crimes including the Kennedy assassination and spreading the AIDS virus through its clinics in Africa...In 2006, a newspaper article in the United Arab Emirates claimed that the Knights were directly influencing U.S. policy in Iraq and Afghanistan, reprising their role in the Crusades. Following the article, Islamist websites in Egypt urged followers to attack the order’s embassy in Cairo, forcing the organization to issue a statement denying any military role. To be fair, the Knights have been involved in their fair share of political intrigues. In 1988, the charge d’affaires at the order’s embassy in Havana confessed to being a double agent, reporting to both the CIA and Cuban intelligence.”
The article goes on to clarify that these are mostly all rumors, and that the Knights really do just work on medical relief projects nowadays, and I’m sure if I just took a look at the photo that Foreign Affairs ran with I’ll...oh, come the fuck on:
Look, I don’t actually think the Knights of Malta are trying to rule the world. The most interesting political intrigue they get involved in is when they butt heads with the Vatican, with whom they’ve often had trouble balancing their allegiance and independence. The Vatican’s official patron for the Knights is notorious archconservative pissant Cardinal Raymond Burke, but he’s in that largely ceremonial role because Pope Francis demoted him from an actual job in the Vatican Curia, so Burke now spends most of his spare time blogging about how coronavirus is a hoax and hanging out with Steve Bannon.
So while Leo likely isn’t plotting to overthrow African governments, I don’t think he’s driving ambulances in disaster zones either. He’s more likely just hanging out with other rich conservative men and soaking up their theology and politics, including ideas about “natural law”, which, as we’ll see, have heavily influenced his picks for the Supreme Court. Natural law theory dates back to antiquity, but became a bigger part of the Catholic tradition when Thomas Aquinas wrote about it in the thirteenth century. How did the Daily Beast explain natural law in a 2018 report on Leo?
“Those include the notions that human life begins at conception and that homosexuality is immoral. The reason is that the moral “natural law” is as part of the fabric of the universe as the laws of nature, and it trumps any secular law that humans (or legislatures) might dream up. As developed by St. Thomas Aquinas and a millennium of subsequent philosophers, everything has its “natural” function and its “unnatural” misuse. Food is for nourishment, not gustatory delight; sex is for procreation, not pleasure; sensual enjoyment is luxuria, a sinful diversion of pleasure from its intended purpose of reproduction. Moreover, men and women are “complementary” to one another; heterosexual marriage is part of the structure of the universe. Thus the Catholic catechism teaches that “homosexual acts are intrinsically disordered. They are contrary to the natural law. They close the sexual act to the gift of life.” And life begins at conception, making abortion and even contraception acts of murder. And since God has decided all of these facts, individuals have no rights (secular or religious) to decide them for themselves.”
The Daily Beast piece asserts that natural law theory is a key part of what the Knights of Malta believe, although it’s not unique to them. And if you’re a person who believes that as your personal philosophy, that’s not particularly noteworthy, but if you have judges, and especially Supreme Court justices, who subscribe to this way of thought, it means that they can ignore the Court’s own precedent, or existing case law, or federal law as written, or the Constitution itself, if they believe it conflicts with “natural law”. And it’s not like they’d be referencing a collection of “natural laws”, natural law isn’t referring to a specific document, it’s just the sense of morality that they believe that all of humanity has coded deep within itself. So they can - and, as we’ll see, they have - just rule however they feel is right, citing natural law, and use that to override, you know, the actual law that they’ve taken an oath to protect and interpret. And this way of thinking got dragged into the spotlight during one justice’s particularly contentious confirmation hearing.
CHAPTER THREE - THE CLARENCE THOMAS CONTROVERSY NO NOT THAT ONE
If I asked you about the controversy during Clarence Thomas’ Supreme Court confirmation hearing, you’d probably think that I was talking about the obvious one, but what’s wild is that the Anita Hill testimony ended up overshadowing a completely different controversy that was also part of Thomas’ confirmation hearings, much like Brett Kavanaugh's alleged assault of Christine Blasey Ford overshadowed his six figures of debt that mysteriously disappeared after his nomination, I would still like somebody to look into that please.
Thomas, pictured above in the most 1991 headshot of all time, had a history of citing natural law as one of the benchmarks he used in his work as an appellate judge, and it raised a few eyebrows in the Senate. He was the first Supreme Court nominee in decades that had natural law theory in his paper trail, and as he was facing a Democratic-controlled Senate, was the youngest Supreme Court nominee in the modern era, and was replacing a revered civil rights icon on the Court, this prompted a debate on whether putting him on the court would be dangerous to goals of American progressives, before that other thing came to light and prompted a debate on whether putting him on the court would be dangerous to goals of American progressives.
Harvard Law professor Laurence Tribe wrote a column in the New York Times demanding that “Before the Senate decides whether to confirm Judge Thomas, they should explore the implications of his views about natural law as the lodestar of constitutional interpretation.” Tribe was on to something, if you look at the history of natural law as applied by the Supreme Court, since “the last time a Supreme Court majority invoked natural rights theories, some 80 years ago, the Court held that the Constitution protects such economic rights as the "liberty" of employers to conduct business free of health and safety regulations and minimum wage laws,” and “the Court 120 years ago relied on the law of "nature" and "the law of the Creator" to deny a woman the right to practice law, deeming it the "paramount destiny and mission of woman . . . to fulfill the noble and benign offices of wife and mother."” Even in more recent years, natural law theory had been used to “justify moralistic intrusions on personal choice -- as illustrated by Chief Justice Warren E. Burger's appeal to "Judeo-Christian moral and ethical standards" in Bowers v. Hardwick, a 1986 case condemning oral and anal sex between consenting adults.”
But today, Republican senators would write off the Times opinion page as pussy liberals afraid of a Supreme Court that actually respected the Constitution. But there were conservative arguments against Clarence Thomas bringing his natural law reasoning to the Court as well; to read them, we have to once again return to the official journal of Catholics who think they are the religious intelligentsia but are actually huge dipshits, First Things.
Coming out of this confirmation hearing, of all people, Robert Bork - the man too conservative to get on the Supreme Court in the 80s, and author of a real book titled Slouching Toward Gomorrah: Modern Liberalism and American Decline - actually wrote a lengthy argument in First Things against judges using natural law to evaluate constitutionality, which ended with this:
"The proper question in judging under the Constitution is not political conservatism or liberalism but the legitimacy of authority: who has the right to decide particular issues?...Should these gentlemen persuade judges that natural law is their domain, the theorists will find that they have merely given judges rein to lay down their own moral and political predilections as the law of the Constitution. Once that happens, the moral reasoning of the rest of us is made irrelevant.”
Surprising from Bork, perhaps, but it strikes me as a sound argument - you don’t want judges just deciding that some body of moral principles that isn’t democratically decided and which nobody can actually reference supersedes the law that they’re supposed to be interpreting. But, because this was First Things, they had to dedicate another issue to this particular essay and have three different conservatives rebut Bork. Notably, Catholic constitutional law scholar William Bentley Ball wrote this in response:
“Bork says that...I want the Supreme Court (and presumably all benches) to be filled with judges who share our moral views. Speaking for myself, he is exactly right. But I well realize what nags Bork. That is the fact that, for example, seven justices in Roe v. Wade reached out into the realm of fantasy to summon a “right of privacy” as a basis for killing people. But these were his brother legal positivists. They can scarcely be accused of having resorted to Higher Law. They resorted to what one can properly call Lower Law or Unnatural Law. I agree that, under their reading and my reading of “due process,” they could do that. But the answer is not to constrict due process to procedure (thus leaving us largely at the mercy of majorities). Instead it is to labor for the seating of judges who, respectful of the legislative will, nevertheless embrace the saving concept of a transcendent order.”
I'm not super thrilled with early 90s Catholic intellectuals, upset though they may be about Roe, arguing that we have to get away from majority rule and install judges who will install a "transcendent order" into a presumably pluralistic American society. It's even an idea that Thomas seemed to disown during his own confirmation hearings, stating:
"I do not think that you can use natural law as a basis for constitutional adjudication, except to the extent that it is the background in our Declaration, it is a part of the history and tradition of our country, and it is certainly something that informed some of the early litigation ... it is certainly something that has formed our Constitution, but I don't think that it has an appropriate role directly in constitutional adjudication.”
So that quelled the controversy and got the confirmation hearing back on track until, you know, that other thing happened. But not only was that comment a poor predictor of how Thomas would conduct himself on the Court over the next three decades, it was also a poor predictor of how the overall majority would rule on the Court. Because Leo's friend Thomas got onto the Court, and then Leo sent some other natural law fans to the Court to join him.
CHAPTER FOUR - NATURAL LAWFUL EVIL
The debate over Supreme Court justices citing natural law in their decisions did not begin with Thomas' confirmation hearings. Justice Oliver Wendell Holmes wrote an article on this exact topic for Harvard Law Review in 1918 - 1918! - that was very critical of this judicial philosophy, as he wrote “Certitude is not the test of certainty. We have been cocksure of many things that were not so...The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by all men everywhere.” Holmes was writing on the tail end of the first world war, and in the same year that...uh, a massive global pandemic had torn through the world and killed tens of millions. And I can’t speculate on what was in his head, but when I see how people across the country react to the public health crisis we have today, it’s very hard for me to accept that all of humanity has the same common understanding of right and wrong intrinsically built within each of us. It’s hard, today, to accept that everyone is born knowing that all of the people around them have dignity and worth. I can only imagine, after the horrors that Holmes had seen, how difficult it was for him to lean on the idea that there were obvious, sound moral principles guiding society. And Holmes didn’t think that a responsible judge could do that, especially if it conflicted with the law or the Constitution.
The debate also didn’t end with Thomas’ confirmation hearings, mainly because some of Thomas’ coworkers also explicitly draw from natural law in their work. The Atlantic made an even more pointed argument than Holmes in 2014:
“The threat lies in the use of natural law by courts in judicial decisions. Invoking it in construing the Constitution and statutes raises an obvious question: If natural law exists, what is in it? Is it a blank slate on which anyone may write subjective beliefs? Does it include religious dogmas? If so, of what religions? Importantly, neither Jefferson nor any of the other Founders claimed that the Declaration’s natural-law concepts were incorporated into the Constitution. Indeed, the Constitution explicitly rules out any such suggestion. The Supremacy Clause of the original 1787 document provides that the Constitution and the laws and treaties made “in pursuance thereof … shall be the supreme law of the land.” It doesn’t say that they shall be supreme unless countermanded by a “higher law.””
In addition to Thomas, who wrote in a 2005 decision that laws separating church and state were counter to natural law, writing “Congress need not observe strict separation between church and state or steer clear of the subject of religion. It need only refrain from making laws ‘respecting an establishment of religion.’”, the Atlantic piece also quoted an Antonin Scalia quip from oral arguments, regarding the display of the Ten Commandmens outside of a courthouse, in which he said that “law—and our institutions—comes from God...[the Commandments are a] symbol of the fact that government derives its authority from God.” If that wasn’t enough, Scalia also wrote an essay in First Things (it’s always First Things) in which he asserted that “government carries the sword as ‘minister of God’ to execute wrath upon the evildoer.” Two apostles of natural law heard oral arguments and decided cases for decades, and seeing their worldviews laid out like this is unsettling.
It doesn’t end with Scalia and Thomas, though. Sam Alito cited natural law as the basis behind the individual right to own a firearm in McDonald v. Chicago, calling it “necessary to our system of ordered liberty” and building off of Scalia’s same reasoning in DC v. Heller. Neil Gorsuch began doctoral studies with a natural law theorist at Oxford and wrote a book applying natural law principles to questions on physician-assisted suicide, in which expressed his desire that more judges would adopt more guidance from natural law in order to “rule out assisted suicide and euthanasia”. His opinion as an appellate court judge in the Burwell v. Hobby Lobby case - in which Hobby Lobby successfully argued that they shouldn't have to fund health insurance plans that covered contraception, presumably because they were too busy funding ISIS instead - was especially impressive to Leo. I know that because Leo brought it up at a banquet shortly after Gorsuch was confirmed to the Supreme Court, as part of his acceptance speech for an award from the religious freedom lobbying organization that funded the Hobby Lobby case in the first place.
Actually, Leo's whole 2017 speech to the Becket group is very instructive, revealing his love for the hard-right wing of the Republican party as well as expensive DC restaurants, since he opens by shouting out someone in the audience and saying “I still fondly remember our first meeting together. Lunch at La Chaumiere in Georgetown. It was my first encounter with your plan to help our side weaponize litigation in pursuit of justice. You were visionary.” And expressed his relief that Donald Trump was president and able to fill the empty Supreme Court seat, saying:
“In the protection of religious freedom, we’re used to making the best of adverse circumstances … lighting candles in the darkness. It sure felt that way a year ago after...America lost Justice Scalia, a peerless defender of freedom of religion and so much else as our Framers understood it. Staring at that vacancy, fear permeated every day in that countdown to November 8th. And what an amazing turn of events, thanks to our 45th president. Who could have imagined that the author of the Hobby Lobby decision in the Tenth Circuit would become the newest member of the U.S. Supreme Court?”
Leo may be a devout Catholic and intelligent attorney, but he’s still a Republican, and Trump’s election, to him, was nothing but good news. As he said about the 2016 election, “not everyone had access to [evil right-wing woman who owns Breitbart and introduced Steve Bannon to Donald Trump] Rebekah Mercer’s crystal ball...Sometimes, in a good cause, your breaks take you by surprise as much as your setbacks.”
So with Gorsuch, Leo got another natural law disciple on the Court in 2017. As The Atlantic put it, “A government that tries to invoke divine law ceases to be of, by, and for the people...the moment a judge turns to natural law, democracy vanishes.” But of course Leonard Leo would be on the lookout for judges who were willing to lean on natural law. Leo doesn’t need democracy; if he did, he would be working on one of the other branches of government. He works with the federal judiciary precisely because they can act counter to public opinion, without consequence. Scalia writing that the government executes the wrath of God upon evildoers is, at the very minimum, not great. But because there are so few checks on the Supreme Court's power, Scalia knew that he could say something like that and nobody could do anything about it. That's what Leo is really looking for: not only his reactionary Catholic understanding of natural law, but the willingness to wield the power that justices have, without hesitation or apology, to bring that about. And the current presidential administration is more than happy to let him find judges with those qualities.
CHAPTER FIVE - FEELING THE LAW AT YOU
I'd assume that if Leo had his way, the Federalist Society would fully own the picks for the federal bench and just give the White House a list of approved judicial candidates to use for nominations. But in order for that to happen, the President of the United States would have to be a man so dumb, old, and ignorant that he possessed no interest in the judicial branch at all, and certainly no interest in doing the work of vetting judges. Well, guess what.
In his first term as president, Donald Trump has governed extremely closely to the Republican party line on essentially every single issue. When it comes to judicial nominations, he has been indistinguishable from any other presidential hopeful in his party, and he has explicitly outsourced the entire nomination process to Leo and his team. And we're not just talking about the two Supreme Court justices, we're also talking about the additional two hundred and fifty federal judges that he’s nominated to district and appellate courts, all of whom will serve for life. One quarter of the entire federal judiciary are Trump nominees. That so many seats were open in the first place was due to the Republican-controlled Senate blocking Obama's judges from 2015-2017, cheered on by the Judicial Crisis Network, a separate fundraising organization run by a protege of, you guessed it, Leonard Leo, and often coordinating with, you guessed it, the Federalist Society.
When Trump campaigned in 2016 with a list of potential judges to replace Scalia on the Court, the list was overwhelmingly made up of Federalist Society members, and former White House Counsel Don McGahn all but confirmed that Leo and the Society put the list together themselves, which you've kind of already guessed by now.
Okay, but why the fuck are so many of the people on that list Catholic? Harriet Miers would probably have voted to overturn Roe, right? Why was she not good enough in 2005?
In 2013, Dan Crane wrote for Law And Religion Forum, trying to get to the bottom of why Evangelical Protestants were underrepresented in the legal elite. Every time he got to an answer, he had to peel back another layer; for example, the most obvious reason is that Evangelical Protestants are underrepresented at Ivy League law schools (plus Stanford and Chicago, please don't send me angry letters), which is the key gateway to the legal elite. But then you'd have to try and figure out why Evangelical Protestants don't go to Ivy League law schools, and I don't think the theory from this commenter on Crane's piece is correct:
Crane made some good points about the geographic distribution and socioeconomic status of Evangelical Protestants, who don't generally live near these schools or make enough money to cover the obscene tuition. He also made some shakier points about Evangelical Protestant attitudes towards institutions and individualism, which strike me as very difficult to generalize to an entire family of religions. There was also an interesting, although hard-to-prove, point in his piece about Evangelicals being willing to cede seats on the Court to Catholics since the Catholics were going to rule the way they wanted on all of their pet issues anyways.
But I think the answer has more to do with natural law and the natural lawyer himself, Leonard Leo. If you want to be a Republican and in the legal elite, you have to be in Leo's good graces. And if you really want to be on the fast track to a seat on the federal bench, you need to impress Leo with your ability to make sweeping, anti-majority, anti-democratic decisions with some appearance of intellectual justification. Natural law is that justification, and it’s been in the Catholic church for centuries.
That’s not to say that natural law isn’t an acceptable way to engage with the world, and it’s certainly not to say that I haven’t used self-serving and contradictory justifications for things I’ve done and said, but I’ve definitely never done it while I was a Supreme Court justice in an ostensibly pluralist society making decisions that affect hundreds of millions of people. And the justices in the current majority have. Because Harriet Miers might have voted to overturn Roe, but Leo wanted someone like Sam Alito who would also use flimsy justification from his religious tradition to gut public sector unions. He wanted someone like John Roberts to gut ballot access for minorities. He wanted someone like Neil Gorsuch to gut healthcare. He wanted someone like Brett Kavanaugh to gut the rights of immigrants and death row prisoners. He wanted someone like Clarence Thomas to, I guess, write winding dissents making the case for gutting every other part of the law. To paraphrase Colbert when he first defined truthiness: anyone can interpret the law for you. But it takes a Catholic justice, one vetted by Leonard Leo and on board with the philosophy of natural law, to feel the law at you.
EPILOGUE
If there's one thing I want you to take away from this piece, it's that Hobby Lobby funded ISIS by paying for smuggled artifacts that were looted from Iraq. If there are two things to take away, it's that very rich Republicans have been working for years, successfully, to “weaponize litigation” and stack the federal courts with guys who will do what they want, although you probably already knew that. And if there are three things to take away, it's that Catholicism, culturally and theologically, is part of this strategy.
Catholics have been around long enough to build generational wealth and produce privileged young men and women - well, mostly men - who attend the best law schools in the country and get connected in elite circles, more easily than some other parts of the Republican coalition. The church has very well-known public teachings on classic conservative culture war issues like abortion and gay marriage, so these Catholic judges are an easy sell to the rest of the conservative movement. And for everything else where Catholic teaching might conflict with the conservative movement, like labor rights, immigration, or health care? Well, you have Thomas Aquinas and natural law to weasel out of that, just say that you feel like the secret moral code inside all of us is telling you differently. That’s how Leonard Leo picked his five Catholics to sit on the Court and make the majority decisions that will advance the conservative agenda for the next generation, even if it’s clearly against the will of the majority of Americans.
That’s kind of a bleak note on which to end, so I will say that there is a sixth Catholic on the court who is notable for being, by far, the best justice on the Court in terms of jurisprudence, and definitely the best justice in terms of recognizing the conservative wing of the court for what it is. Sonia Sotomayor, most notably in her dissent in Trump v. Hawaii, has called out the bullshit of her colleagues, especially when it comes to their uniform deference to Trump and the Republican party at the expense of any case law, precedent, or ideas of human decency, concluding that “Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments...the Court’s decision today has failed in that respect.” While someone like Scalia would throw out these official “fuck you and you’re destroying America”s to his colleagues all of the time in his dissents, it’s rare to find them coming from the liberal wing of the Court. I hope that we see more of it in the future, or even better, we get to a point where we don’t need them anymore.
Grift of the Holy Spirit is a series by Tony Ginocchio detailing stories of the weirdest, dumbest, and saddest members of the Catholic church. You can subscribe via Substack to get notified of future installments. The current series covers Catholics connected to the United States Supreme Court.
Sources used for this piece include:
The New Yorker - “The Conservative Pipeline to the Supreme Court” (2017)
UVA Lawyer - “Confirmation of High Court Justices Akin to Political Campaign, Leo Says” (2006)
Daily Beast - “The Secrets of Leonard Leo, The Man Behind Trump’s Supreme Court Pick” (2018)
The Tablet - “Cardinal Burke In Office But Out of Power as Job Handed to Papal Delegate” (2017)
America - “Dust Up With Order of Malta Ends Not With a Bang But a Reinstatement (2017)
Foreign Policy - “Who Are the Knights of Malta, and What Do They Want?” (2011)
National Catholic Reporter - “Ancient Order, Modern Times” (2017)
New York Times - “Clarence Thomas and Natural Law” (1991)
Regent University Law Review - “Natural Law and Justice Thomas” (2000)
Harvard Law Review - “Natural Law” (1918, archived at Teaching American History)
First Things - “Natural Law and the Constitution” (1992)
First Things - “Natural Law and the Law: An Exchange” (1992)
The Atlantic - “When Judges Believe in Natural Law” (2014)
Vox - “Neil Gorsuch’s Natural Law Philosophy is a Long Way From Scalia’s Originalism” (2017)
Richmond Journal of Law and the Public Interest - “Appellate Judges and Philosophical Theories” (2011)
Becket Law - Leonard Leo’s Canterbury Medal Gala Acceptance Speech (2017)
United States Supreme Court - “Trump v. Hawaii” (2018)
Law and Religion Forum - "Why Are Evangelicals Underrepresented Among The Legal Elite?" (2013)
Law and Religion Forum - “Does It Matter That Evangelicals Are Underrepresented Among The Legal Elite?” (2013)