| As Slate’s Dahlia Lithwick and Richard Hasen subsequently reported, the Federalist Society—which under the leadership of Leonard Leo has become an effective pipeline for conservative jurists—is lurking at the center of this scheme. Formed as a sort of debate society, the organization now sucks down dark money and uses it to fund an elaborate network to seat as many right-wing judges on the federal bench as possible. The ultimate goal is to provide corporate interests with a mighty judicial bulwark against the possibility that something as vulgar as the public will might one day interfere with all the buckraking. “Until recently one might have believed that Leonard Leo and the Federalist Society could at least nominally support … the notion that votes should be counted and that voters should have the last word in a constitutional democracy,” write Lithwick and Hasen. “Apparently not.”
Until recently, it might have seemed that conservatives’ norm-shattering capture of the Supreme Court would preclude the need to worry about elections at all. While the left tends to fixate on the harms that Scotus could perpetrate on matters of identity discrimination and abortion rights—not unimportant by any means—the real action has centered on obscure legal doctrines that don’t make for zazzy headlines but matter a lot to having an administrative state that functions as elected lawmakers intended. One, known as “Chevron deference,” holds that courts should allow an agency’s own interpretation of an ambiguous regulation to prevail. Another, known as “Auer deference,” holds that the judiciary should also stay out of the way of an agency’s own reading of a regulation as long as it means a standard of reasonableness.
As Ian Millhiser pointed out last year at the now-defunct ThinkProgress, these doctrines essentially provide the means by which a liberal president could govern as a liberal. “After all,” he wrote, “if the executive branch can’t regulate—or, at least, if it can’t regulate without getting permission from a Republican judiciary—then conservatives no longer need to worry about Democratic presidents doing much of anything that doesn’t meet the GOP’s approval.” Conservatives now have the 5–4 majority on the Supreme Court and can take the steps necessary to undo these crucial legal doctrines whenever they like. Chief Justice John Roberts, who’s not a pure product of the FedSoc network and who has, in the past, cast the occasional fleeting glance toward keeping the Supreme Court from plunging into a legitimacy crisis, is the only thing standing between us and the Darkest Timeline.
Regardless, no one should be under any illusion that a Biden presidency will be fully restorative. As TNR’s Matt Ford wrote some time ago, “If Democrats retake the White House and Congress, they could rescind any of Trump’s executive orders and rewrite all legislation passed by Republicans. But they won’t have the same power over the justices. Faced with what will likely be a hostile Supreme Court for the next generation, liberals and the American left will have two options: play by the rules set by a judicial body they view as illegitimate, or resort to unprecedented measures to change it.”
Why, having secured these gains, would conservatives pour so much money into keeping Americans from voting? When it comes to possessing and deploying maximal political power, there simply is no such concept as “enough,” especially when there is so much money to be reaped. Right now, the worst-case scenario for them is a President Joe Biden, who has based his entire candidacy on the belief that he can forge compromises with Republicans, and a Democratic-controlled Senate. Republicans could simply wait that scenario out if they wanted to, through delay and obstruction. But when the goal is essentially making it unconstitutional to be a Democrat, why put off till tomorrow what you can get paid handsomely to do today?
—Jason Linkins, Deputy Editor | 