On the latest Last Week Tonight, John Oliver looked into how hard-right conservatives, aided by Donald Trump, have reshaped the US judiciary, from district courts to the supreme court.
“Extremity seems to be the standard now for this court,” said Oliver of the current supreme court, “which has been aggressive in applying hardline conservative views to reverse established law,” from overturning Roe v Wade, to reversing 45 years of precedent on affirmative action, to discarding the Chevron doctrine this June.
The court was able to do so thanks to a 6-3 conservative majority secured by three appointees from Trump, who promised to install conservative judges if elected in 2016. “Trump delivered on that promise,” said Oliver. “And not just at the supreme court level. He’s reshaped the judiciary from top to bottom, in ways that are only starting to be felt.”
Oliver then looked into the impact of Trump’s appointees on the 94 district courts and 13 regional appeals courts across the country. There are more than 900 active federal judges and, as president, Trump appointed 234 of them, rivaling the number appointed by presidents who were in office for twice as long as him.
Though Trump portrayed the vacancies that allowed him to appoint judges as a stroke of good luck, they were in fact the result of Senate Republicans, led by Mitch McConnell, stonewalling Obama’s judicial nominees for years. “Those vacancies weren’t gifted so much as stolen,” Oliver explained. “Which is clearly different – Oprah’s car giveaway wouldn’t have seemed nearly as fun if she spent the previous night carjacking everyone in Chicago.”
McConnell had long been a proponent of bending the judiciary to political goals. Appointing federal judges “makes the longest-lasting contribution to making this the kind of country it ought to be”, he told Hugh Hewitt in 2018.
“He’s not lying there,” said Oliver. “During the Trump years, you couldn’t whisper the words ‘court vacancy’ anywhere in Congress without McConnell suddenly bursting through the wall like the fucking Kool-Aid man.”
The other, more shadowy figure behind conservative court appointments is Leonard Leo, co-chair of the Federalist Society, which Oliver called “an organization that he turned from a student club into an incubator and pipeline for conservative lawyers to become public officials and judges”.
Leo also created a dark money network to funnel cash to conservative causes, groups and politicians, having received a huge $1.6bn donation to boost his work. And he recommended Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett to the supreme court. “Leo’s had a huge amount of success implanting hard-right judges throughout the federal court system, and that has enabled conservative groups, some of which he funds, to effectively go judge-shopping,” Oliver explained.
As in, they write a lawsuit designed to achieve a specific policy end, bring it before a district court judge who came up through the Federalist Society, appeal it through circuit courts stocked with the group’s alumni and “maybe even get it in front of the supreme court, a full third of whose members came off a list from the Federalist Society’s own Leonard fucking Leo,” said Oliver. Leo is “putting out new conservative judges the way Apple puts out new TV shows – constantly, and basically silently”.
Oliver used the example of last year’s case targeting mifepristone, the drug used in most medication abortions. Activists formed a group, the Alliance for Hippocratic Medicine, and filed a lawsuit in Amarillo, Texas, to specifically draw the Trump-appointed judge Matthew J Kacsmaryk, a former lawyer in the Christian legal movement.
Oliver described the group’s arguments as “laughably weak”. Yet Kacsmaryk, unsurprisingly, sided with the plaintiffs in a ruling upheld by the notoriously conservative fifth circuit court of appeals, where a third of the judges are Trump appointees.
The supreme court ultimately overturned the ruling, saying the plaintiffs “hadn’t convincingly proved that they were being harmed” – “because they fucking weren’t”, said Oliver. Yet in drafting his opinion, Kavanaugh explicitly left the door open for plaintiffs to try again in the future with “a hint so broad, it might as well have had a winking emoji at the end of it”.
Oliver also considered a more “under-the-radar” yet dire example of the Loper Bright decision, which undid four decades of precedent allowing regulatory agencies to do their jobs. The lawsuit was filed by groups supported by Leonard Leo, and “at this point, finding out Leonard Leo had a role in a major conservative court case is like finding out a ventriloquist dummy has a hand up its ass”, Oliver quipped. “It’s basically assumed.”
The decision will in effect let judges issue “one-man vetoes of entire agencies in real time based on personal opinion”, said Oliver, citing a Georgetown review. “Which is just not how the government is supposed to work!”
Congressional Democrats have tried to undo some of the damage with laws that have not passed Congress, as Republicans control the House. So “the only way of undoing some of the harm that’s been done and preventing even more happening is by keeping Trump out of the White House and Republicans out of Congress in November”, said Oliver.
It can feel depressing to “live in a world where rich, anonymous interests can install friendly judges to hand them whatever rulings they want, and where the government’s ability to keep us safe is hamstrung by some dork’s B-minus standup routine”, he concluded. “But that situation only persists if we let it. If we can elect people who value an independent judiciary and the rule of law, then Leo and his backers won’t able to so easily buy the justice system.”
