Conservative Judges and Lawyers Detail Their Deregulatory Agenda After Trump Win

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WASHINGTON — Supreme Court Justice Neil Gorsuch was on a roll, seeming to thoroughly enjoy himself as he commanded the stage at the annual black tie dinner gala hosted by the Federalist Society in Washington, D.C. The Nov. 14 dinner came midway through the organization’s 3-day National Lawyers Convention, a gathering of nearly 2,000 conservative and libertarian judges, academics, lawyers, and law students. In the wake of President-elect Donald Trump and the Republicans’ tripartite sweep of the White House and Congress, it was a time not only for celebration, but to preen.

The Federalist Society, the conservative lawyers network, likes to maintain a public veneer of open debate, and retired liberal Supreme Court Justice Stephen Breyer was seated beside Gorsuch on the stage. Justices Brett Kavanaugh and Amy Coney Barrett looked on from the audience.

Gorsuch used the opportunity to launch into an unexpected riff about the late MAGA internet icon, Peanut the squirrel and the porn-heavy subscription website, OnlyFans, where Peanut’s dad is a model.

“You might have seen [a story] in the newspaper, if the newspapers are to be believed, yes, I’m speaking of Peanut the squirrel,” Gorsuch said. Referencing OnlyFans — or “Just for Fans,” as he put it — Gorsuch added with a grin: “My law clerks tell me that there’s maybe a sordid side… I don’t know the details. I’m not aware of any allegation that Peanut was involved in any of those actions.”

The audience needed little help picking up on the jokes, which had previously been largely confined to right-wing media outlets and conservative corners of the internet, responding with applause, hoots, and knowing laughter. Dressed in gowns, tuxedos, and related-finery, they seemed a bit at odds with their surroundings in a large ballroom in the windowless bowels of the Hilton Hotel, known colloquially as the “Hinckley Hilton” ever since John Hinckley shot Ronald Reagan there.

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I was seated with a handful of reporters who were shuttled in nearly two hours after the event began (well after dinner was served) and confined to a short row of chairs lining a back wall.

My first encounter with Peanut the squirrel had come just two days before the election, when I posted a photo on X that I took at the Women’s March in D.C. of an 86-year-old woman holding a sign sharing her excitement about voting for Vice President Kamala Harris. The photo was unfortunately viewed nearly two million times. Among a torrent of misogynist, violent, and otherwise hateful responses from Trump supporters was a video with the heading, “this is for you Peanut.” It was an animated army of muscle-bound squirrels in gladiator gear and “Pets 4 Trump” hats marching in military formation down Pennsylvania Avenue headed to the White House. “Bull Dog” who shared the video, wrote, “nothing is going to stop what’s coming.”

I suppose he was right.

I came to learn that Peanut was a pet-squirrel taken from the home of a couple in New York and euthanized by the New York Department of Environmental Conservation due to concern that he could have rabies. (He did not.) Trump’s campaign posted on TikTok: “Vote Trump for Peanut.” His account wrote that Peanut was “needlessly murdered by Democrat bureaucrats in New York,” adding, “We will avenge you on Tuesday at the ballot box.”

Trump appointed Justices Gorsuch, Kavanaugh, and Barrett to the Supreme Court, helping conservatives build a 6-3 supermajority. His judicial adviser during that time was Federalist Society co-chair Leonard Leo, whose dark money network spent tens of millions to boost their confirmations.

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Mirroring Trump, Gorsuch used Peanut as an example of abusive government overreach. Gorsuch’s second example was what he characterized as a ridiculous effort by government regulators to require that businesses across the country include climate disaster plans in their operations in the wake of Hurricane Katrina, the 2005 storm that resulted in the highest financial costs and one of the deadliest tolls of any hurricane in U.S. history. The city of New Orleans has yet to fully recover.

Gorsuch’s speech outlined what those in attendance firmly plan to deliver upon: the death of the “administrative state.” It’s a bit ironic, as the administrative state — the public-facing rules and actions taken by federal agencies to regulate on behalf of the public interest — is the antithesis to the right-wing conspiracy theory of the “deep state.”

Gorsuch assured attendees that his interest in regulatory reform is not about protecting “big business” or “corporate welfarism,” but rather out of concern that “ordinary Americans have just been swallowed up by the law.” That may have been the biggest joke of the evening.

The Federalist Society is heavily underwritten by some of the nation’s largest corporations and business lobbies, including ExxonMobil, Chevron, Koch Industries, and the United States Chamber of Commerce. These interests are also among the most vociferous opponents of government regulations. Such regulations force companies to do things like curtail the amount of pollution they emit from chemical plants and oil refineries, ensure equity for their employees, and test drugs before selling them to the public.

As former Justice Breyer explained in his remarks, government regulations have not only helped save whales from near-extinction (to the joy of his daughter), but also countless human lives. “There are quite a few people who are alive today, and who recovered from pretty serious illnesses, because we had a system of putting new drugs on the market,” he said. He stressed that the people who work in government agencies are experts in their fields who can be trusted to make decisions in the public interest with knowledge that generally surpasses that of people like himself (aka judges). Gorsuch thanked Breyer and then led the audience in a toast to Peanut, before sending everyone off to the open bar.

The Federalist Society convention laid bare, in great detail, the deregulatory, legislative, and judicial priorities of members and supporters of what may be one of the most influential organizations in the nation. Gorsuch was among many speakers who noted how many of those in attendance were already involved in the Trump transition, on their way to joining the new administration, or advising it.

Speakers included Republican Sen. Eric Schmitt of Missouri; former Trump Environmental Protection Agency (EPA) Administrator Andrew Wheeler; appellate lawyer Paul Clement; and O.H. Skinner of the Leo network group, Alliance for Consumers. Among the topics of conversation were plans to curtail implementation of the U.S. Civil Rights Act, stymy climate litigation, shut down campus protest movements, and put a halt to environmental, health, and climate protections.

Trump made solidifying conservative control of the Supreme Court and lower courts a priority in his first term, and he succeeded in naming 234 federal judges. Many Trump judges were at the conference and spoke on panels, including several believed to be auditioning for the Supreme Court, amid speculation that Justices Samuel Alito and Clarence Thomas could soon retire. These include Judge Andrew Oldham and Judge James Ho — both of the ultra-conservative Fifth Circuit Court of Appeals, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi — and D.C. Circuit Court of Appeals Judge Neomi Rao, appointed in 2019 by Trump to the seat previously held by Justice Kavanaugh.

The convention attendees were predominately white men, which was not surprising given a central theme of the conference was ending policies and regulations meant to address issues such as systematic racism, inequality, environmental injustice, discrimination, and more. Overtly mocking and demeaning these efforts gave several panelists quite a thrill.

With conservatives having already succeeded in striking down college’s affirmative action policies at the Supreme Court — and leading a frontal attack on Diversity, Equity and Inclusion (DEI) policies and practices — the next legal target, highlighted by several speakers, is Title VI of the U.S. Civil Rights Act, which seeks to address not just intentional discrimination, but also laws or practices that have a discriminatory impact, such as when communities of color are disproportionately burdened by industrial pollution.

The work to take America backward is just getting started.

Toast to the Coming End of the Administrative State!

The champagne literally flowed at one mid-afternoon panel. Law professor Philip Hamburger of Columbia Law School gleefully popped the cork on a glistening bottle, unable to contain his joy after a lifetime of work committed to eliminating the administrative state. He stood to fill the glasses of fellow panelists, including a beaming Judge Rao, who passed the bottle along to fellow-Trump appointee, Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida. She passed it on to George W. Bush’s Solicitor General, Paul Clement. They raised their glasses, bubbles overflowing, as Hamburger led a toast to the slew of recent Supreme Court decisions attacking government regulation.

“I have a toast to Jarkesy, to Axon and Cockran, to Corner Post, to Loper Bright, to Relentless, and to all the other wonderful cases, Bravo!” Hamburger exulted, adding that “all of this amounts to the greatest setback to administrative power since at least 1935 and perhaps ever!” The panelists clinked their glasses while the audience cheered.

Panelists mentioned several other recent Supreme Court rulings, including West Virginia v. EPA and Sackett v. EPA, curtailing the agency’s regulatory power to address greenhouse gas emissions as well as air and water pollution. But the ruling that grabbed the greatest attention was the one this summer overturning the high court’s landmark 1984 decision in Chevron v. Natural Resources Defense Council, which gave rise to “the Chevron doctrine.” The new ruling, in Loper Bright Enterprises v. Raimondo, cut back sharply on the power of federal agencies to interpret the laws they administer and found that courts should rely on their own interpretation of ambiguous laws.

Justice Elena Kagan’s strongly-worded dissent was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. The Chevron doctrine supports “regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest,” Kagan wrote. By overturning Chevron, Kagan concluded, the court had engaged in a massive power grab, shifting authority from federal agencies to the courts.

The doctrine and deference to agency decisions used to have bipartisan support — including from Justice Thomas. Clement, who regularly argues cases before the Supreme Court, described how when he worked for the Bush administration, he was a fan of the Chevron doctrine. Only later, during the Obama and Biden administrations, when he was representing clients before the Supreme Court, did he come to see problems.

Clement said that he’d tried in various cases to “take a whack at Chevron.” But “most of my experience had been in the context of representing the Chevrons of the world, or Amalgamated Chemical, and other litigants that don’t create a huge amount of sympathy,” Clement said. Then, one day, “out of the blue” a friend alerted him to the perfect case, a group of small fishers harmed by costly regulation. He argued the now infamous Loper-Bright case before the Supreme Court and won, describing the doctrine he once championed as now “hopelessly ambiguous.”

The fall of Chevron is a boon for anyone in Clement’s line of work. It’s likely to not only have a chilling effect on new regulations but also open the door to a potential swarm of corporate litigation challenging existing rules. In Corner Post, the court separately allowed for challenges to older laws. Of course, the incoming Trump administration is committed to eviscerating as many government regulations as it can.

Andrew Wheeler, who served as Trump’s second EPA administrator, is now the head of federal affairs at Holland & Hart. He’d been rumored as Trump’s likely pick to once again head the agency, before former New York Republican Congressman Lee Zeldin received the nod.

“My advice to the transition team is to triage.” Wheeler said. While there is a massive wish list for regulatory cuts, there’s only so much that can get done in four years. He predicted that on “day one” he’d expect to see an executive order instructing the EPA to rewrite Corporate Average Fuel Economy (CAFE) and fuel efficiency standards, followed by “the fall” of the Biden administration’s suite of new standards to reduce pollution from fossil fuel-fired power plants, which he called, “the Clean Power Plan 2.0.”

The EPA estimates that, annually, the net benefits for the rules increasing efficiency and regulating tailpipe emissions will be $99 billion. The pollution rule is expected to avoid 7.2 billion tons of climate damaging carbon emissions through 2055, roughly equal to four times the emissions of the entire transportation sector in 2021. It will also reduce fine particulate matter and ozone, preventing up to 2,500 premature deaths. The efficiency rules are expected to save car and passenger truck owners an average of $600 on fuel costs over the life of their vehicle, and save heavy-duty pickup truck and van owners an average of $700.

The rules implementing tighter regulations on the emissions from power plants include a focus on environmental justice communities and are estimated to provide climate and health benefits nationwide resulting in 1,200 avoided premature deaths and 57,000 lost workdays in 2035, according to the EPA.

An analysis of Biden administration rules implemented since 2021 estimates that the EPA’s increased clean air and pollution standards will save more than 200,000 lives through 2050.

“If I were advising companies looking at potential consent agreements under the [power plant] initiative, I would push back particularly because of Loper and say, ‘You don’t have the authority to move forward on this enforcement action,’” Wheeler said. It’s not just regulations that are now at risk, but also the ability of the EPA to take enforcement actions against companies, Wheeler argued. “I’m looking in particular at the enforcement program, the mitigating climate change enforcement initiative against the oil and gas industry,” he said.

How to Kill an Alligator

Republican Senator Eric Schmitt is an imposing figure, standing well over six feet tall, and a favorite of the Federalist Society. The former chair of the Republican Attorneys General Association, he launched a barrage of lawsuits against the Biden administration, attacking policies on Covid-19 vaccinations, student loan forgiveness, immigration, oil and gas leasing, and climate change, among other things. As he sat on the dais as the featured speaker in a “fireside” chat, it was not the man, but his shining black cowboy boots — emblazoned with the white seal of the state of Missouri — that grabbed everyone’s attention.

Later, he told me how he’d joined Louisiana Governor Jeff Landry on one of his famed annual alligator hunts. The fundraisers are known to attract government and corporate leaders, including Donald Trump Jr. Schmitt clearly enjoyed himself, though he noted that “it’s actually pretty unfair to the alligator.” He trekked out into the Louisiana swamp in a boat, where the alligator was lured above water by a chicken dangling on a hook. Once it was caught on the hook, Schmitt took out a .22 caliber gun and shot the alligator in the back of its head. The result? Schmitt’s shining black alligator boots.

Back on stage, Schmitt noted his conversations with Leonard Leo about what the Republican AGs’ response to the Biden administration could look like. Now in the Senate, Schmitt has founded a “post-Chevron working group,” and has a long to-do list. First up is likely fossil fuel leasing and permitting reforms that he argues can be moved through the budget reconciliation process, via a simple majority rather than the 60 votes required to pass most legislation under Senate filibuster rules. He and Wheeler both mentioned the need to swiftly pass and implement Joe Manchin and John Barrasso’s Energy Permitting Reform Act of 2024.

Environmental law firm Earthjustice describes the bill as “a fossil fuel giveaway” that would “increase oil and gas extraction on public lands, undo the Biden administration’s liquefied natural gas pause, and facilitate the construction of more fossil fuel infrastructure that would lock us into decades of fossil fuels use.”

Schmitt also spoke of prioritizing passage of legislation modeled on the Regulations from the Executive in Need of Scrutiny Act, which would require congressional approval of all major regulations issued by federal agencies before those regulations could come into effect. The consumer-advocacy group Public Citizen calls it, “one of the most radical threats in generations to our government’s ability to protect the public from harm,” and says it “will only benefit those corporations that wish to game the system and evade safety standards.”

It Starts in January

The real “fireworks” of the convention were lobbed by a seemingly unlikely fire-starter, unless of course you already knew her. Judge Edith H. Jones is a petite woman of advanced years from Texas. Appointed to the bench by Ronald Reagan, Jones is less well known than her fellow Fifth Circuit contemporaries, Trump-appointees Judges Ho and Oldham. But her actions and comments at the convention stole the show as an ominous indication of what the next four years could mean for the judiciary under Trump.

The Fifth Circuit is considered one of the most radical in the nation, and has been described by Vox senior correspondent and lawyer Ian Millhiser as exercising “casual cruelty” and a “disregard for law, precedent, logic, and basic human decency.” Millhiser adds, “The Fifth Circuit is where law goes to die.” It has become a favorite forum of right-wing lawyers who wish to rewrite laws via the courts. These lawyers often bring cases in Amarillo, Texas, knowing they will be heard by a radically right-wing Trump-appointed judge, before they go to the Fifth Circuit, where they expect a favorable hearing.

While many of the so-called debates at the conference really weren’t debates at all, the panel attempting to tackle the vital topic of ensuring judicial independence featured Judge Ho, Judge Jones, and one of the Fifth Circuit’s most vocal critics, constitutional law scholar and professor Stephen Vladeck of Georgetown Law School.

Judge Ho, arguably one of the most extreme judges appointed by Trump, opened the panel with what appeared to be a very thinly-veiled audition for a job on the Supreme Court — reassuring attendees (and anyone who might be interested) of his commitment to originalism, attacking “cultural and academic elites” who call for judicial reform, and slamming those who think “the views of half of the country are garbage” — an apparent reference to a comment from President Joe Biden. Just days earlier, Ho had given an interview in which he walked back his support for birthright citizenship — a constitutional guarantee that Trump campaigned on ending.

After Vladeck offered his remarks (you can read his blog post about the panel), Judge Jones pulled out a manilla folder overflowing with papers and held it above her head, declaring, “I’ve studied Professor Vladeck, and this is a file of his articles, amicus briefs, and tweets regarding the process of judge picking that he is criticizing.” She proceeded to read off several tweets one by one, which were intended to reveal what she claimed was “a pattern” of “relentless attacks by Vladeck” on her judicial colleagues.

Vladeck defended himself and his positions, describing the harms of judge picking and forum shopping. “When you have the state of Texas filing 60 lawsuits against the Biden administration in district courts,” most of them in Amarillo, despite the lack of geographic connection, “that’s a pattern worth talking about,” said Vladeck. “If you disagree, fine, we can have that conversation. But the notion that describing behavior is attacking judges I think is a very dangerous road to go on.”

He went on to say that he looked forward to continuing both the conversation and to raising awareness about these issues.