Can(n)on of Corruption
Federal District Court Judge Aileen Cannon is back in the news and, as always, that means she is once more contorting the legal process to let Donald Trump skate past felony charges of which he is clearly, almost laughably, guilty. (One hopes that never again will we be forced to gaze at photos of classified documents stored in an ex-president’s bathroom.)
Since being assigned the case eighteen months ago, Judge Cannon, flouting both the law and reality, has done everything she can to ensure the trial cannot commence until after the man who appointed her has a chance to reclaim both the presidency and his immunity to prosecution. (Dismissing the charges outright was too much, even for her.)
Back in September 2022, she ignored accepted jurisprudence and granted Trump’s request for a special master to review the material taken from Mar-a-Lago by the FBI. For that, she was roundly ridiculed, one legal scholar observing that she “seems oblivious to the nature of executive privilege.” Her ruling, which Bill Barr, among others, thought “preposterous,” was eventually decimated in circuit court by three conservative judges.
She then set a schedule for the actual trial that, as CNN put it, “has drawn out the case with an unusual, eyebrow-raising approach, delaying rulings on what experts say are routine legal questions that must be resolved before the case can go to trial.”
Special counsel Jack Smith, who once prosecuted war criminals, has been unable to suppress his frustration, finally accusing Cannon of demanding briefs that demonstrated a “fundamentally flawed” understanding of the case, which had “no basis in law or fact.”
Judge Cannon’s behavior has been so egregious that many have questioned her qualifications to sit on the bench, bringing to mind former navy secretary Gideon Welles’ observation after Ulysses Grant nominated mediocrity Morrison Waite to be chief justice that Grant could have done as well nominating his bartender or coach driver.
But Cannon is not a mediocrity. She was born in Colombia to a mother who fled Castro’s Cuba, did her undergraduate work at Duke, then attended University of Michigan law school, from which she graduated magna cum laude with a juris doctor. She clerked for a circuit court judge, worked at a major law firm, and was also an assistant United States attorney in the major crimes division.
But if she is not incompetent, what’s left?
To answer that, it is necessary to put her behavior on the bench in context, which in turn requires incorporating some recent and less recent Supreme Court rulings into the equation. These, of course, are occasions where the Court overturned long-held precedent to advance a conservative agenda.
In DC v Heller in 2008, in a 5-4 decision, Antonin Scalia for the first time ruled that the Second Amendment was not written to enable national defense but rather to ensure private ownership of firearms. In Citizens United, a similar majority overruled previous decisions that limited campaign expenditures by private organizations, thus supercharging the dark money era. In Shelby County v Holder, once more 5-4, the Court disemboweled the Voting Rights Act on the spurious claim that racial discrimination was no longer a sufficient factor in voter suppression to warrant federal oversight. And then, of course, there is Dobbs v Jackson Women’s Health Organization, in which the vote was 6-3, reflecting Mitch McConnell’s greater success in packing the Court than FDR enjoyed.
Finally, we have the Supreme Court dragging out Trump’s ridiculous absolute immunity appeal, thus making his January 6 trial far less likely to begin before the election as well.
And what do all these rulings have in common? Each justice in the majority of every one of them was hand-picked by the Federalist Society, of which Judge Cannon has been a member since age twenty-four. Federalist Society executive vice-president, Leonard Leo, who helped shepherd Clarence Thomas through his “high-tech lynching” confirmation hearing, has been said to have “personally curated” the list of conservative appointments, including of Trump nominees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, as well as Samuel Alito and John Roberts.
The society itself was founded in 1982 by conservative and libertarian law students at Yale, Harvard, and University of Chicago who believed “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.” According to its web site, the society “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” And so, Federalists are committed to “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.”
This last statement bears examination. Setting aside “traditional values,” fraught with subtext as it may be, a “premium on individual liberty” would seem to indicate that unless someone is threatening or otherwise infringing on the protected rights of others, Americans should be free to do pretty much as they please. If some choose to go to the supermarket with Glocks strapped openly to their waists, or even perhaps AK47s slung over their shoulders, they should be free to do so. If on religious grounds, a baker refuses to make a wedding cake for a gay couple, no civil rights law should compel him to apply the icing.
Members of the Federalist Society are free to hold these opinions, of course, regardless of how outrageous they are deemed by others. To that end, the group presents itself as an organization that is both politically and philosophically consistent, holding deep and abiding beliefs, free of duplicity.
In that case, what about abortion?
What could more epitomize “individual freedom” than the right of a woman to decide if she wants to bear a child? No one else, except perhaps the father, is involved, and even then, not always. It would seem the essence of individual freedom that anyone who does not have to carry the child cannot mandate what should be done about it, no more than a fellow shopper in a supermarket has the right to tell the Glock-toter to consider the rights of people who would prefer not to grab their Spaghetti O’s with an armed man or woman lurking nearby.
As such, members of the Federalist Society should be in the forefront of the abortion rights struggle, urging presidents to nominate and the Senate to confirm judges who are on record as defenders of such an obvious exercise of “individual freedom.”
As Dobbs so amply demonstrated, quite the reverse is true. Why, then, would an organization that trumpets its libertarian beliefs, that “takes no public policy positions and does not participate in activism of any kind,” but “focuses on fostering debate and discussion of important legal topics,” be so committed to overturning a right that would seem the quintessence of what they are fighting for?
It is because the Federalist Society is not a political organization as much as it is a religious one, an extension of the most conservative form of Catholicism. Leonard Leo, as well as former attorney general Barr, former White House counsel Pat Cipollone, and many, many others, are members of Opus Dei, a secret, extremely conservative organization that is an arm of the Catholic Church. An investigative article in Monthly Review noted, “The Catholic lay group has been described as one of the world’s ‘most powerful and politically committed’ secret societies, with direct ties to the Vatican as a ‘personal prelature,’ an official status awarded by John Paul II that made sure the group only answers to the Pope himself.”
And so, the United States is currently saddled with a Supreme Court and a goodly number of federal judges, like Aileen Cannon, who are committed to molding a society that hews to their religious beliefs and favors those who share them, in spite of a Constitution that was written and amended to deny any religion the right to impose its dogma on the citizenry at large. They have, therefore, become conservative political operatives, defending the rights of those who would vote for candidates they favor regardless of how their decisions infringe on the rights of those who would not.
Making the situation that much worse, the 6-3 conservative majority on the Court was created in an era in which the Republican presidential candidate won the popular vote only once since 1988.
And while these judges are not motivated by financial gain—although as Clarence Thomas repeatedly demonstrates, they are not averse to enriching themselves as a fringe benefit—this is corruption all the same.
There is no quick fix for a corrupt judiciary, but judicial corruption can be fought the same way as any other form—by an aroused populace determined to root it out.
Let us hope the United States still has one.