Kamala Harris and Tim Walz have turned the 2024 presidential campaign upside down and galvanized the Democratic Party's base voters, who had become almost resigned to a second term for Donald Trump. Harris now appears to be leading in the polls heading into next week's Democratic National Convention, while Trump — who had orchestrated an entire campaign around attacking the aging President Biden — is visibly flailing and appears determined to sabotage his chances with every public appearance.
But David Daley is here to tell those of you already catering your election-night parties: Don't celebrate quite yet. Daley, the former editor-in-chief of Salon and author of the 2016 bestseller "Ratf**ked: Why Your Vote Doesn't Count" has returned with another chilling account of long-term right-wing dirty tricks, this time — as he told me in our recent Salon Talks conversation — with a title we can actually print. If the title of Daley's new book, "Antidemocratic: Inside the Far Right's 50-Year Plot to Control American Elections," suggests that it makes large claims, it definitely does. But it's not a tale of a secret, sinister conspiracy, and the chaotic events of Jan. 6, 2021, are only mentioned in passing.
Donald Trump was not the architect of the long-term antidemocratic strategy Daley outlines in this book, and was probably barely aware of it before he became its accidental beneficiary. The precarious and damaged condition of U.S. democracy — corrupted from top to bottom by corporate money, large-scale gerrymandering, aggressive voter suppression and the far-right conquest of the federal courts — did not happen by accident or result from a series of ad hoc political decisions. As Daley writes, it's "the product of a deliberate, long-term and extraordinarily patient strategy, some of it behind closed doors though much of it in plain sight."
Most of the major landmarks of this history are visible; engaged liberals and progressives largely understand the pernicious effects of the Supreme Court's decisions in the Citizens United and Shelby County cases, which opened the doors, respectively, to unlimited tides of dark money (now defined as free speech) and increasingly imaginative, if nominally colorblind, forms of racial disenfranchisement or vote suppression. But those court cases didn't emerge from nowhere, and it wasn't simply bad luck that they came before a court with an entrenched majority of Republican-appointed, Federalist Society-endorsed justices.
"Antidemocratic" is less the story of the damaging consequences of those decisions (among others) than the story of how and why they happened — and that story has never been told this thoroughly in a single volume. To boil the narrative down to its essentials, Daley demonstrates that leading conservatives of the 1970s, alienated and scandalized by the increasingly liberal tenure of political and legal reasoning in America, eventually realized they had to build an entire alternative system.
Arguing for their cherished culture-war positions on racial, sexual and religious issues piece by piece, before liberal judges or Democratic state legislatures, led only to defeat. What a few impressively farsighted right-wing thinkers conceived and then created — and it took liberals far too long to notice this — was a new intellectual and political apparatus that would produce well-trained, highly capable lawyers and judges devoted to reframing constitutional law around "originalism" and (as they saw it) redeeming the promise of a white-dominated, overtly Christian nation from the dangerous moral drift of cultural relativism and increasing diversity.
Founding fathers of that movement, like future Supreme Court Justice Lewis Powell and disgruntled ex-liberal lawyer Michael Horowitz, didn't have the word "woke" to rail against. But they were anti-woke before it was cool. Along with many of their ideological followers and fellow travelers, they created our current moment of American crisis, when getting the most votes on Election Day is only part of the story and the pathways to overturning or denying the people's verdict are legion. My former boss joined me recently to talk about some of the hair-raising possibilities raised by his new book.
This transcript has been edited for clarity and length.
“Antidemocratic” is perfectly timed for this contentious election. I have a decent sense of where you fall on the ideological spectrum, and I would assume you agree with the premise that Kamala Harris and Tim Walz have changed the dynamics of this election. But have they changed it enough to address the issues you talk about in this book?
I think that is the $100,000 question as we head into this election season. This is going to be a very tight and very close election. And as we know, the Electoral College is really what matters. In 2020, we're talking about essentially 45,000 votes in three very competitive states that made the difference. Even though Joe Biden won the popular vote by 7 million, it was those 45,000 votes that made the difference. And the kinds of litigation that we saw after 2020 was a clown show. It was Rudy Giuliani in front of Four Seasons Landscaping. It was Cleta Mitchell and a bit of a pile up.
That's not going to be the case this time. I think they're better prepared. I think there's better lawyers working on this. Lara Trump at the RNC has already said that there's about 75 to 90 cases that the RNC is involved in, either as a litigant or filing amicus briefs in about 24 states.
These involve some of the big white-shoe conservative law firms, Consovoy McCarthy and others in D.C. Rudy Giuliani is not involved. So what I worry about is another replay of Bush v. Gore in 2000. If the margin is anywhere near as close as it was in 2000, where we're talking about maybe 550 votes in one state, we are going to see a six-week period, I would imagine, no matter what, between Election Day and the meeting of the Electoral College in mid-December, that is going to be like a second election period.
Except that 180 million of us will vote on Election Day. If this winds up before the Supreme Court the same way Bush v. Gore does — and there's a million different scenarios you could conjure up that get it there — you will have nine people making that decision. Six of whom have essentially been appointed or trained or are in the pocket of Leonard Leo and the Federalist Society, and three of whom worked on Bush v. Gore as lawyers.
That's remarkable. Who are those three?
Those are John Roberts, Justice Kavanaugh and Justice Barrett, who essentially proved their conservative bona fides in that moment, and were fast-tracked to be trusted by the conservative legal movement for these incredibly important spots on the court. Bush v. Gore, in many ways, was the proof of concept for controlling the court and controlling American elections.
In the book you repeatedly explain that the “50-year plot" you write about is not a conspiracy theory. It's understandable that people are focused on the proximate threat of Donald Trump, but the Trump administration, as you just said, was a clown show. When you have Rudy Giuliani or Cleta Mitchell or Sidney Powell involved, it's all going to go south. Those people were not competent, not well-informed, not good with the law. But that's changed, right? Now there are many people who are competent, well-informed, intelligent and good with the law who have been involved for decades in building for a moment like this.
I think that's exactly right. A lot of people believe that this current antidemocratic moment began when Donald Trump descended the gilded escalator at Trump Tower. Actually, you can trace the roots of this moment back decades earlier than that. The folks who have been plotting this truly antidemocratic moment of entrenched minority rule in so much of our politics have been planning for this for a long time. You can track it back many decades, as I try to do in this book, and there's a really good reason for it. They were and are still, to this day, trying to achieve political policy goals that majorities of Americans disagree with, and the only way to pull that off was by capturing the courts. They learned this time and time again over this entire period, which inspired them to go further into this idea. You don't need 218 members of the House and 51 members of the Senate or the White House, if you can put five people who you know and trust in lifelong unelected unaccountable positions on the U.S. Supreme Court.
Even better if you have six.
Even better if you have six.
There are two headline-making legal cases at the center of your book, one of them being the Citizens United case that basically opened the door to unlimited corporate dark money in the political process, and the other being Shelby County v. Holder, which removed the teeth of the Voting Rights Act. But those two court decisions, as famous as they were, weren't just the result of conservative principles coming to the fore or a new interpretation of the Constitution or some sort of artful judicial compromise. Your argument is that this was literally the culmination of decades of strategy.
Yes. What the conservative legal movement has built in many ways is a hermetically sealed circle. When they bring these cases, they have the Federalist Society doing the research and creating the sort of legal hothouse theories that make up the amicus briefs that they also fund.
They fund the litigators and the expensive law firms. They fund the astroturfed nonprofits that go out and find the litigants that bring these cases. And they are serving as essentially the one-stop shopping transmission belt for installing the judges who will hear these cases.
And then the same funders oftentimes are behind things like ALEC, the American Legislative Exchange Council, that then take the cases, once they're allowed to gerrymander or pass voter ID bills, and bring them back down to the state legislatures and enact them in all these places. So what you begin to see is that the fix is in at just about every single level. And that's certainly the case in Citizens United and also in Shelby County.
You make a persuasive case that the right built a movement over a period of decades to achieve these results. From their point of view, who were the heroes or leaders or key figures in that movement?
I think Salon readers will probably recognize the name of Lewis Powell.
Former Supreme Court justice, although this was before that.
Well, the amazing thing about Lewis Powell on the Supreme Court is that Powell is sort of a classic Southern lawyer, a genteel racist. And he is seen as "the courtly gentleman of the Marble Palace," as Time Magazine described him.
Folks in Richmond, Virginia, where his biographer says he never met a Black man as an equal, might beg to differ. Powell was chair of the school committee in Richmond during Brown v. Board, which he believed to be wrongly decided. He couldn't imagine why the court would reach that decision. He does not engage in the sort of maximal resistance that other places did.
Right, he didn't stand in the schoolhouse door. He would never have used blatantly racist language, in the most obvious sense. He had no affiliation with the Klan. That's what we're talking about, right?
He was not Bull Connor, but he simply didn't do anything to change. Five years after Brown, when Powell steps down as school board chair, you can count the number of Black students in white schools on one hand in Richmond, Virginia. All of which is just a buildup to say this is not a nice man. In the 1960s, he calls Martin Luther King Jr. a totalitarian. He talks about the civil rights movement in horrific ways, and he writes a memo for the Chamber of Commerce in the early 1970s that effectively says, "We on the right are besieged." I mean, the idea of this kind of white-right grievance is not new to us.
It wasn't invented in 2016.
Precisely. Powell writes a memo for the Chamber of Commerce that says, "We are going to lose to the consumer movement and the environmental movement and the radicals in the media and on campuses if the right does not get involved in a big way. And the best opportunity for us would be to take advantage of our chances in the courts and to try and take over the courts." Well, he writes this memo and three months later, Richard Nixon appoints him to the U.S. Supreme Court, which is quite a career ladder.
As a Supreme Court justice, his rulings in some of the key campaign finance cases of the 1970s helped pave the way for Citizens United. There's also a big voting rights case that very much influences a young John Roberts. So Powell's memo, I think there's some on the left who probably overstate its influence and I try not to do that here, but it's undeniable that it inspired the Koch brothers. The Koch brothers wrote about it and gave speeches about it in the early 1970s. It inspired the big conservative founders on the right, the folks at the foundations like Scaife, Olin and Coors, to do things like build the Heritage Foundation. They built an entire network of conservative public interest law firms that they tried to use in the same way that the left was using law firms to fight DDT and support Ralph Nader's consumer movement and the like. But much of what the right built at first didn't really work or prove super effective.
It took a second really smart conservative, a man named Michael Horowitz, a former liberal from New York City, who I don't think people really understand or know about. Horowitz comes in about almost a decade later and does a memo for the Scaife Foundation. That's Richard Mellon Scaife, the big conservative funder, probably gave a billion dollars to conservative causes over the course of his lifetime.
What Horowitz argues is that the structure and the framework that Powell has described doesn't make a lot of sense anymore, because Republicans don't have the bright young lawyers in order to staff it. They have mediocre legal minds, he thought. What had to be done was Republicans had to win hearts and minds in law schools. They had to build this from the ground up, not as Powell wanted to from the top down.
I have to say, I find this guy's vision impressive.
It's brilliant.
He understood that what they lacked was the intellectual bench, and the actual training, background and educational framework. That seems like such a central aspect of the whole story.
It's an absolutely huge part. Because he introduces a handful of young conservative law students in the early 1980s to the conservative funders, and they would together launch and fund something called the Federalist Society, which is probably the biggest ROI that any conservative investment has ever built.
Horowitz, who was really an unknown lawyer in New York prior to writing this report, ends up as chief of staff at Reagan's Office of Management and Budget, a really big job at the center of the Reagan administration where he brings in young Republicans and begins putting good, proper conservatives on the career track. The same thing happens at the Department of Justice where all of these young Federalist Society folks come in, along with a young John Roberts, who was not a member of the Federalist Society at the time but clerked with [Chief Justice] William Rehnquist, who essentially had an early version of the Federalist Society in his chambers, and you begin to see how the transmission belt works and functions.
I was interested in Horowitz's critique of the left-liberal legal establishment of the time. He describes them as something of an ideological insider's group that was in this self-congratulatory loop, of pushing policies and legal agendas and court decisions. Obviously he thought the right should emulate that, and they did. But I also wonder to what extent he was correct: Did the arrogance of the left-liberal establishment of that time undermine itself?
It's a great question. Horowitz goes to a conference at Yale that Charles Halperin, who was one of the geniuses of the liberal public interest law movement of the '60s and '70s, runs. Horowitz is horrified by what he sees, but he's also amazed by it because it's right out in the open. It's sort of everything he imagined. It's the folks who work at the government agencies under Jimmy Carter. It's the public interest law firms. It's the law professors. They're all just hanging out together. And he's saying, "Well, they're all friends. And they all had built an iron triangle that helped further all of their policy goals."
I think he might have imagined that this was the case, and then he got there and saw it and said, "This is what we need to do." He's like, "You can't have a regional system of public interest law firms out in the mountain states or the Pacific Northwest or wherever. You need to be in Washington. You need to be with the people who are making these decisions. You've got to be in the room with them." He thought that was the model that conservatives needed to build, rather than the one that Powell had suggested. And he was right.
This is a leading question, but are you frustrated to see the Democrats playing emergency politics once again in this election? They are always concerned with the immediate crisis — "How do we defeat this dangerous person?" — rather than addressing the underlying causes that made Trump possible and got us here. As long as we keep repeating that fire-alarm pattern, is anything fundamental going to change?
No. As long as we keep repeating that pattern, every election is going to be the most important election of all time and democracy will always be on the ballot. We will always have to rush $15 to Nancy Pelosi because she'll be alive forever through our ActBlue accounts. No, nothing will change. You begin to almost wonder if they like it that way.
Biden recently made various reform proposals about the Supreme Court, which are not going to go anywhere in the near term. But in the context of all the crazy and obvious headline news, I wonder if you think it was an important moment for the actual president of the United States to say those things.
Amen. Because we need to start this conversation. It needs to be mainstreamed and it needs to be a part of Democratic politics and platforms.
Listen, a lot of us said this back in 2020. A lot of us have been saying things like this for a long time. Without serious structural fixes to American politics, there's going to be this entrenched minority rule for a period of time, and it's only going to get worse over time if we don't do anything about it. So Joe Biden commissioned a blue ribbon panel, and he stuffed the result in a drawer back when Democrats had a trifecta in Washington and might have been able to do something about this. It would have required blowing up the filibuster, it would have required Manchin and Sinema, but when they had the numbers, the report was stuffed in a drawer. And what happened? Well, the Supreme Court blew up Roe v. Wade in the Dobbs decision.
They continued tearing the Voting Rights Act in half, and half again and half again. They gave Trump immunity for crimes that he committed in office and essentially turned him into a king and placed him above the law after slow-walking that case for so long that it pushed it off until after the 2024 election.
There's a piece of me that says, I'm glad we've started this conversation, but it's a little too late for the moment that we're in. But it's an important conversation to start, because what we have is a runaway hijacked U.S. Supreme Court loaded with a conservative supermajority appointed by presidents who lost the popular vote, and confirmed by a U.S. Senate that has not actually represented a majority of Americans during those years. They are unelected, given lifetime powers and appointments. They are totally unaccountable to Americans. They have no ethics standards. They deliberate in private.
Abraham Lincoln, in his first inaugural, said that if we give unfettered power over public policy decisions that affect all the people to the U.S. Supreme Court — I'm paraphrasing slightly, but I'm not paraphrasing this: "The people will cease to be their own rulers." I would suggest that that is the moment that we are in. That in many ways, the people have ceased to be their own rulers.
So what Biden is talking about is a solid start. Term limits seem like a very wise idea. Americans back them, right? Anytime you start talking about a court reform, people get afraid. There's a Fox News poll that shows 78% of Americans back term limits for the U.S. Supreme Court. This is extraordinarily popular.
I'm sure they'd find a way to game the system but, regardless, it's a pretty good start, and also an actual code of ethics with teeth. If we're going to have this unaccountable lifetime panel making these decisions for us, I would like to know who is funding their lavish luxury vacations. I would like to know who's buying their mother's house for them. I'd like to know who's paying their friend's tuition to fancy private schools, and I'd like to know what kind of business these people have before the U.S. Supreme Court. The idea that we can't have hearings into this — I mean, this court has been corrupted.
You do your utmost in this book to demolish the reputation of Chief Justice John Roberts as this institutionalist, middle-road, compromise-seeking justice. But you and I know we will read a column in the Washington Post or the New York Times in the next five days that recycles those clichés, arguing that Roberts is a moderating influence on the hotheads like Alito and Thomas. Why does that keep happening?
I have no idea. This idea that John Roberts will save us, when John Roberts has shown again and again that not only is he not going to save us, he's not your friend, he's not on your side. Listen, John Roberts is the most successful Republican politician of the last 25 years. He is hardly an institutionalist centrist calling balls and strikes. He's calling balls and strikes like Leslie Nielsen did in “The Naked Gun.” The pitch is halfway down the plate and he's called a ball or a strike, based on which side wins.
Here's what John Roberts has delivered for conservatives and Republicans over the course of the last 20 years: Citizens United and the unlimited ability of billionaires to flood dark money into our politics; the continued destruction of the Voting Rights Act, which has resounded to the benefit of the Republican Party nationally; in state after state, he has blessed their partisan gerrymanders; he has overseen the end of Roe v. Wade; he has overseen the end of the regulatory state, he has overseen the birth of the major questions doctrine. Look at what has happened on gun control.
And what is the truth about all of these cases? None of them, none of these results, could have been won by conservatives or Republicans through the political process. John Roberts delivered all these things for them. John Roberts is not a moderate. John Roberts is not a centrist. John Roberts is the most important conservative politician of the last 25 years.
