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Brooke Gladstone: Millions of dark money dollars are pouring into judicial races across the country, changing the way judges are elected and how they preside.

Janine Geske: Suddenly there were millions of dollars being put in.

Justice Bob Orr: That's bad for the system, it's bad for democracy.

Brooke Gladstone: From WNYC in New York, this is On the Media. I'm Brooke Gladstone. This week, what conservative power broker, Leonard Leo, is doing with one of the largest political donations in American history.

Evan Baehr: After one lunch, you can put different kinds of capital together to go out into the world and basically wreck shop.

Brooke Gladstone: Leo's vision for American society collides with American society.

Bettina Richards: There is Leonard Leo himself with his security guard standing there chalking my name.

Andrea Bernstein: He was writing your name on the sidewalk as you were jogging by.

Bettina Richards: Yes. How completely surreal is that?

Brooke Gladstone: It's all coming up after this. From WNYC in New York, this is On the Media. I'm Brooke Gladstone.

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The first week in October, the liberal majority on Wisconsin State Supreme Court agreed to hear a case about the state's legislative districts drawn up by Republican lawmakers back in 2011. In agreeing to hear one of the most disputed gerrymandering cases in the country, they also reignited a simmering threat.

Reporter 1: Wisconsin Supreme Court Justice Janet Protasiewicz remains under the threat of impeachment by legislative Republicans and Assembly Speaker Robin Voss, who has now created a secret panel of former Supreme Court justices to study the legal issues surrounding the process of impeachment.

Brooke Gladstone: Justice Protasiewicz was elected to the Wisconsin Supreme Court last April and started her term in August. Before she was elected, she'd made some public comments suggesting that the current electoral maps were rigged.

Justice Janet Protasiewicz: Absolutely positively rigged. They do not reflect the people in this state.

Brooke Gladstone: Now?

Reporter 1: Republicans are saying, "If she agrees to hear a redistricting case, but does not recuse herself, that that would constitute corrupt conduct in office.

Brooke Gladstone: This week, two former Wisconsin Supreme Court justices were asked to weigh in on the legality of the impeachment plan. Their opinion? Protasiewicz had not committed a crime or corrupt conduct that would warrant such an extreme measure. State republicans were thwarted, for now, in their efforts to unseat the justice, but the threat of impeachment has loomed ever since her short tenure began. What's happening in Wisconsin is an especially stark example of how state courts are becoming increasingly theaters of political war, but in Wisconsin, the judiciary has long been a partisan battlefield.

In this, the third and final installment of We Don't Talk About Leonard, our series made in collaboration with ProPublica, we examine the corrosive influence of money on judicial races and ponder, what's Leo planning for the future? Reporters Andrea Bernstein and Andy Kroll are our guides for this episode. Andrea's up first with more on the Wisconsin situation.

Andrea Bernstein: Wisconsin was one of the first states Leonard Leo and the Federalist Society got involved with in around 2007. That was the same time they were unsuccessfully trying to upend Missouri's nonpartisan judicial selection plan. It was designed to take politics out of judicial selection. The plan pushed the court to the center, something Leo opposed. Leo lost in Missouri, but he did not give up on state courts. They were too tempting a target. In contrast to the power they wield, for example, ruling on voting districts, on gubernatorial edicts and abortion bans, they're pretty low profile. A little can go a long way when you want to change the composition of the courts.

Take Florida, where Leo did figure out how to influence state judicial selections. As soon as he was elected in 2018, Governor Ron DeSantis, a Federalist Society member since law school, brought in Leo to lead a secret panel that reviewed recommendations by the state's Public Judicial Commission. The Florida Supreme Court now has a 6-1 conservative majority.

Andy Kroll: That's judicial selections. In this episode, we're looking at judicial elections. These are what Pomona College professor, Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, describes as low-information elections.

Amanda Hollis-Brusky: These are ripe for influence from outside parties who would like to see certain decisions go certain ways and can use these judicial elections to populate the state with judges who are going to rule the way they want them to rule.

Andrea Bernstein: Judicial elections have led to results that have helped erode democracy in some states already. According to a University of Washington study that ranks the health of democracies in individual states, in the last two decades, North Carolina and Wisconsin have plummeted from two of the highest-scoring states to scraping the bottom. Leonard Leo played his part in making that happen.

Amanda Hollis-Brusky: When you have a policy agenda and a policy platform that is not appealing to the majority of Americans, then the courts become a very attractive venue for carrying out your policy agenda.

Andrea Bernstein: Like an abortion.

Amanda Hollis-Brusky: It's not just policymaking through the courts, it's policymaking through the courts that then feeds back into the machinery of democracy in ways that favor Republican electoral outcomes.

Andrea Bernstein: I'm going to describe a recent event, one that looked like a defeat for Leo, and it was, but it was also a victory. Stay with me, you'll see why.

[applause]

The most expensive State Supreme Court race in US history ended the night of April 4th, 2023. At least $51 million were spent, including millions from groups associated with Leo. Because of IRS rules, we won't know how much for years. We may not ever know exactly who gave all that money. We do know that Leonard Leo personally donated $20,000, the maximum allowable, to the campaign of the conservative candidate, Dan Kelly.

Kelly had served once before as a justice, and his opinions fit the profile of the kind of candidate Leo supports, against abortion and same-sex marriage, against restrictions on businesses and gun ownership. Kelly had also aligned himself with those rejecting the outcome of the 2020 presidential election.

Dan Kelly: I wish that in a circumstance like this, I would be able to concede to a worthy opponent-

Andrea Bernstein: That early night in April, the night of the election in Wisconsin, Kelly takes the podium with a tight smile that looks like a frown.

Dan Kelly: -but I do not have a worthy opponent to which I can concede.

Speaker: True that.

Andrea Bernstein: Kelly gives an unusual concession speech, one that accuses his opponent of doing what critics said he had done, threatening the nature of the judiciary and democracy itself.

Dan Kelly: My opponent is a serial liar. She's disregarded judicial ethics. She's demeaned the judiciary with her behavior. This is the future that we have to look forward to in Wisconsin.

Andrea Bernstein: No partisan labels were attached to the candidates, but both the Republican and Democratic parties made clear who they were supporting. It was understood that if Kelly won, he would likely join opinions outlawing abortion, uphold political maps that favored Republicans, and possibly rule for the GOP in a case determining the outcome of the 2024 presidential election, and that if his opponent, Janet Protasiewicz, was won, she would likely do the opposite. Kelly wraps up his speech, sighing and pursing his lips.

Dan Kelly: I wish Wisconsin the best of luck because I think it's going to need it.

[applause]

Andrea Bernstein: For years, Leo had made a project of Wisconsin in general and Dan Kelly in particular. It started when Leo and the Federalist Society launched the State Courts Project and metaphorically put a red circle around the state of Wisconsin. The Federalist Society said in its 2007 annual report that Wisconsin faced an election of some consequence. In early 2008, a Wisconsin conservative named Michael Gableman challenged a sitting justice, Lewis Butler. Butler had voted on a lead paint liability case that outraged a big Wisconsin business group, Wisconsin Manufacturers and Commerce.

Justice Janine Geske: I just thought it was an awful race. It was so different than what we had seen.

Andrea Bernstein: This is Justice Janine Geske. Now, she's a professor at Marquette University Law School. Back in the '90s, she served as a Wisconsin State Supreme Court Justice.

Janine Geske: I'm conservative in the sense that I don't think we should be uprooting laws and changing precedent unless there's a huge reason to do it, and we should do it carefully and slowly.

Andrea Bernstein: Like many Wisconsin justices, Geske was named to fill a vacancy, in her case, by a Republican governor. She says the Gableman-Butler race was a real turning point for Wisconsin.

Janine Geske: Suddenly, there were millions of dollars being put in. That was new.

Andrea Bernstein: The race was fraught, racially charged. Gableman's supporters targeted Butler, who is Black, with a barrage of ads suggesting he was soft on crimes.

Political Ad 1: Louis Butler worked to put criminals on the street.

Andrea Bernstein: One commercial run by Gableman's own campaign, showed the mugshot of a convicted rapist next to a picture of Justice Butler.

Political Ad 2: Can Wisconsin families feel safe with Louis Butler on the Supreme Court?

Janine Geske: To have those two pictures of Black men right next to each other, one sex offender, one of Justice on the Wisconsin Supreme Court, took our breath away. Most of us looking at that thinking, "What have we descended to?"

Andrea Bernstein: Among Gableman's backers, Leonard Leo. These were early days for Leo. He was just building his network and it was years before Citizens United unleashed rivers of money into campaigns. According to a person close to Gableman's campaign, Leo had a big influence. This person told me Leo had a list of wealthy donors passed along to the campaign. The list came with instructions to call the donors and, "Tell them Leonard told you to call." Each donor on the list, this person said, gave the maximum. When we asked him about this, Leo declined to comment. Gableman won. This was the first time a state Supreme Court challenger had unseated an incumbent in Wisconsin in 40 years.

Reporter 2: Louis Butler blames his loss in part on the negative attack ads from third-party groups.

Justice Louis Butler: It's my hope and my prayer that Wisconsin never has to see a race like we just went through.

Andrea Bernstein: In 2010, Republicans turned to Leo again, according to emails. This time it was to help elect a Justice who could back Governor Scott Walker.

Political Ad 2: We've heard it before, liberal judges letting criminals off on technicalities.

Andrea Bernstein: Here's an ad from that race for judge.

Political Ad 2: This man had a long criminal history, including beating his wife in front of their two-year-old daughter. Then--

Andrea Bernstein: The conservative judge won. Walker stayed in power. Leo declined to comment on his involvement in this race. By this time, Democrats are responding in kind, running their own attack ads.

Political Ad 3: What did David Prosser call one of America's most respected judges? He called her a total [bleep].

Andrea Bernstein: The year after that race, records show, money from Leo-related groups finds its way to Wisconsin. The Judicial Crisis Network, JCN, the dark money group that's been so closely tied to Leo's ambitions gives hundreds of thousands of dollars to conservative and business groups that spend heavily on Wisconsin court fights. Leo says he doesn't remember this happening.

Around this time is when Dan Kelly enters the scene, a graduate of the devoutly Christian Regent University Law School, and an attorney for an anti-abortion group, and the Republican Party. Kelly becomes President of the Milwaukee Lawyer's Chapter of the Federalist Society. He travels to Washington for Federalist Society conferences. He becomes close to Leo and his team. When we asked Leo about this, he said, "I have known Dan Kelly for a number of years."

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Andrea Bernstein: In 2016, there's a vacancy on the Wisconsin Supreme Court and Republican Governor Scott Walker gets to choose who fills out the term. There are three finalists, two Court of Appeals judges, and Kelly, who at the time had never been a judge. Then Leo stepped in and said, "It's going to be Dan Kelly," a person familiar with the selection process told me, adding, "There is zero question in my mind the Federalist Society put the hammer down." Two other Wisconsin Republicans who learned of the intervention at the time confirmed this account to me.

Walker told me in a voicemail message that he never discussed judicial appointments with Leonard Leo while he was governor. Leo says he doesn't remember if he urged Walker to appoint Kelly. Kelly did not respond to request for comment. Dan Kelly gets the job.

Dan Kelly: Thank you, Governor Walker, specifically for the appointment. This is an exceptional honor.

Andrea Bernstein: In 2017, 2018, 2019, really big money from Leo's judicial crisis network starts to flow into multiple Wisconsin Supreme Court races, millions of dollars. Some of it ends up in TV ads aimed at swaying Wisconsin voters.

Reporter 3: Radical out-of-state special interest groups are pouring millions into Wisconsin trying to buy--

Andrea Bernstein: JCN did not respond to our questions.

Trump: Go vote for Justice Daniel Kelly to defend the rule of law in Wisconsin. Daniel Kelly.

Andrea Bernstein: In April of 2020, it's time for Kelly to run for election for the seat he was given by appointment. It's a complicated political year. Kelly loses then he goes to work for the state Republican Party as their attorney. When Trump loses his second run for the presidency, Kelly gets involved in Trump's efforts to overturn the election.

Reporter 4: Wisconsin's 10 Republican electors secretly met at the Capitol in December 2020, trying to submit false paperwork claiming Donald Trump won Wisconsin instead of Joe Biden.

Andrea Bernstein: Then, Kelly starts running for Supreme Court Justice again. He boasts openly about being the conservative candidate who can pull in tens of millions of dollars in money from outside the state. Money that translates to ads.

Political Ad 4: Justice Kelly supports enforcing the rule of law and keeping our community safe. As a Milwaukee judge, Janet Protasiewicz has a long history of letting dangerous criminals off easy.

Andrea Bernstein: Kelly does pull in the money, including from Leonard Leo, but the candidate backed by the Democrats also raises big bucks.

Reporter 5: The airwaves are flooded with ads from liberal candidate Janet Protasiewicz, who's outspending conservative candidate Daniel Kelly.

Andrea Bernstein: After the Supreme Court Dobbs decision sent abortion rights to the states, there's a 19th-century law banning abortion that could go into effect in Wisconsin. Abortion rights groups and voters rise up. Judge Janet, as she's called, wins handily. Leo's candidate lost twice but the idea that Leo had all those years ago, that idea is winning, that judges could be a prize for a political party rather than an independent branch of government. Former Justice Janine Geske says it's like the candidates were running to be, "super legislators" rather than independent arbiters of the facts and the law.

Justice Janine Geske: Third branch was losing its judicial hat and putting on a legislative hat. They were making legislative decisions and that's not what they do. I know that's not what they do, but I think that's what many voters think.

Andrea Bernstein: Current and former state Supreme Court Justices that I spoke with from all around the country, are deeply disturbed with the overt partisanship and boatloads of money that was spent in Wisconsin.

Justice Bob Orr: That's bad for the system, it's bad for democracy, it's a very dangerous path to tread down.

Andrea Bernstein: This is one of those judges.

Justice Bob Orr: My name is Bob Orr and I was the Justice on the North Carolina Supreme Court.

Andrea Bernstein: When he was elected, Orr was the first Republican to serve on the bench in North Carolina for almost a century. He joined the Federalist Society for support.

Justice Bob Orr: It was a sense of if you're the underdog, it's us against them.

Andrea Bernstein: Justice Orr left the North Carolina High Court before Leonard Leo got to work on state Supreme Courts. You can trace Leo's interest in North Carolina through the money that starts coming in around 2012. The Judicial Crisis Network was using the same playbook they were using in Wisconsin and just like in Wisconsin, JCN was part of a first wave of big outside money and negative ads coming into the state.

Justice Bob Orr: All of a sudden, we started seeing these what I would consider misleading and distortive traditional political ads we all know in politics, but we'd never seen those in judicial races.

Andrea Bernstein: Over the next decade, JCN, the group that Leo launched and raised money for, kept sending money to another organization, the Republican State Leadership Committee, or RSLC. Some years, Leo's JCN was RSLC's biggest donor, and that group spent more and more money on state judicial races. Staggering amounts according to the legal institute the Brennan Center for Justice. Bob Orr says all of this money coming in has had a clear impact.

Justice Bob Orr: If I don't rule a certain way in certain cases, this is going to come back to really hurt my career.

Andrea Bernstein: Like Justice Janine Geske in Wisconsin, Justice Orr told me that the rank politics in court races confuses the public about the role of the justice system in civic life, about what judges are supposed to do.

Justice Bob Orr: The whole confidence in the judiciary is critical in the sense of that's supposed to be the umpire, but if you have no confidence in the courts, then you undermine the whole process.

Andrea Bernstein: He says that's what the ads are doing.

Justice Bob Orr: Well, the ads are going to be judge so-and-so voted to release a child molester who did this or that.

Andrea Bernstein: There was actually an ad about child molesting?

Justice Bob Orr: I'm trying to remember. After a while, you want to put them out of your mind.

Andrea Bernstein: Negative ads have long focused on Democratic judges being soft on crime. In 2020, Chief Justice Cheri Beasley was running to retain her seat.

Chief Justice Cheri Beasley: I felt powerless to fix the trajectory of my race. I could do the very best I was going to do, but I also understood that the impact of outside money in my race was going to be determinative in so many ways.

Andrea Bernstein: Unlike in Wisconsin, judges run on party lines in North Carolina. Beasley ran as a Democrat and for a long time, her party controlled the majority in North Carolina Supreme Court. Beasley says even though she raised a lot of money and even though Democrats are now spending in judicial races, conservatives have had a huge headstart.

Chief Justice Cheri Beasley: Democrats and moderate-leaning groups long delayed being informed around the importance of judicial elections and why it was important to make sure that the electorate is informed about these races.

Andrea Bernstein: In 2020, Chief Justice Beasley lost her race to Republican Justice Paul Newbie by 401 votes. Then more money comes in from Leo's groups. In 2021, according to tax returns, nearly all of JCN's funding came directly from a group Leo controls. JCN donates millions to RSLC. RSLC spends record-breaking amounts on state court races. In November of 2022, a year that was generally unfavorable to Republicans, RSLC and JCN and Leo win big. The North Carolina court is flipped from four to three Democrat to five to two Republican.

Speaker: All rise. The Honorable Chief Justice.

Andrea Bernstein: In early February of 2023, the newly Republican-controlled court did something extraordinary. It said it would rehear two voting rights cases that the court had decided just two months earlier when it was controlled by Democrats. Same court, same facts, same law, different partisan makeup. This is the logical outcome of the court system Leonard Leo helped create. After the first hearing in a wind-swept plaza between the court and the capitol, voting rights advocates looked grim staring at the ground.

Sam Hirsch: Good afternoon. My name is Sam Hirsch, H-I-R-S-C-H.

Andrea Bernstein: I traveled to Raleigh to watch the hearings in the two cases which were held on two unusually cold mid-March days. The first to be heard was Harper v. Hall, which just a few months earlier had greenlit electoral maps that more closely reflected the state's roughly even partisan division. The lawyer for the plaintiffs in that case didn't even pretend things had gone well.

Sam Hirsch: In the state of North Carolina and in the United States of America, collections are supposed to matter. They're the way that we translate the popular will, the sovereignty of the people into government power. If the Supreme Court of North Carolina overrules the Harper decisions from last year, it'll be saying to the people of North Carolina that only one election matters. That's the election for the seven members of that court. That's not our democratic system.

Reporter 6: Can you tell us how it felt to be in the court today?

Sam Hirsch: Quick. [laughs] Some of the justices did not seem to want to spend time hearing about the key issues, including whether--

Andrea Bernstein: The next day, it wasn't any better for the plaintiffs. This case was over whether voter ID laws discriminated against Black voters. Plaintiff lawyer, Paul Brockman, cited case law showing that to prove voter ID laws discriminate, you don't need to have someone explicitly saying they're meant to discriminate.

Paul Brockman: We are fortunately well past the time where we expect to find blatant statements of racially discriminatory motive in the legislative record. I hope we [crosstalk] back there.

Justice Phil Berger Jr: I'm sorry, counsel. If I understand you are indicating that there is no direct evidence of racial animus in Senate Bill or the Legislative Bill 824.

Andrea Bernstein: This is Justice Phil Berger Jr., a Republican. He disregards what Brockman says. He wants the direct evidence Rockman tries again.

Paul Brockman: We hope in 2023 that we are well past the point where legislators are going to stand up on the floor of the general assembly and proclaim an intent to disenfranchise African-American voters.

Justice Phil Berger Jr: You agree that the legislation on its face--

Andrea Bernstein: In April, Berger Jr., wrote the five to two decision overturning a precedent that had stood for just five months. He wrote, "Plaintiffs here have failed to prove beyond a reasonable doubt that SB 824 was enacted with discriminatory intent, or that the law actually produces a meaningful disparate impact along racial lines. The prior opinion is withdrawn.

Reporter 7: Major victories for the state Republicans today.

Reporter 8: Yes, The State Supreme Court issuing big rulings with major implications on how North Carolina votes.

Reporter 9: The North Carolina Supreme Court has reinstated the voter ID law.

Reporter 10: This five-to-two decision likely means that a photo ID mandate will be enforced in the 2024 election.

Andrea Bernstein: Neither the Judicial Crisis Network nor the Republican State Leadership Committee nor Justice Phil Berger Jr had any comment. Leonard Leo wrote an answer to our questions, "I think the state Supreme Courts are more independent and impartial today than they were when trial lawyers and unions dominated state judicial races without any counter." If the name Phil Berger Jr. is ringing a bell, here's why. He was among the justices who attended the big party in Leonard Leo's mansion in June of 2022.

The one by the cove protected by US Marshals and the Coast Guard, the one where the mood was jubilant, where guests drank champagne and whiskey and consumed a three-course meal. The party that came at the end of a US Supreme Court term where conservatives made gains on gun rights, on religious rights, and the day after the party, abortion. Now, there was something else to celebrate, decisions that could protect Republican majorities in the North Carolina state legislature for years to come.

Brooke Gladstone: Coming up, Leo is hard at work building the quote, "Federalist Society for Everything." This is On The Media.