| When Alex Wagner set out to write her latest book, she knew that she would encounter some major figures in American law today. What she did not expect to find was a full-blown template for the Republican Party’s dominance of the American legal system. |
| Wagner is a longtime political journalist and TV news veteran who is currently a senior political analyst at MS NOW and the host of the podcast “Runaway Country.” Her new book, “The Steal: Four Right-Wing Hard-Liners, One Republican Presidency, and the Raid on America’s Courts,” tells the story of how conservative legal activists used Ronald Reagan’s presidency in the 1980s to reshape American law. Already a New York Times bestseller, Wagner’s book is a clear-eyed, incisive, and illuminating account of a period in American political and legal history that would prove to have extraordinary long-term consequences. |
| As Wagner recounts, conservative political activists like Paul Weyrich were outraged at the time over the passage of federal civil rights laws such as the Voting Rights Act and Supreme Court decisions like Roe v. Wade. “They just were unflinching in saying, ‘We see where this country thinks it’s going, and we’re going to tell you it’s going to go down another path,’” Wagner told me during a recent interview. |
| These political activists and operatives used Reagan’s presidency as an opportunity to install hardline conservative ideologues in positions of power at the Justice Department; to build a pipeline of conservative lawyers through the Federalist Society who would go on to wield incredible influence in the courts (including all six of the Republican appointees on the Supreme Court today); and to create the socially regressive theory of constitutional interpretation known as originalism. There were some stumbles — particularly around the administration’s defense of then-segregated Bob Jones University — but overall, the project was incredibly successful. |
| Wagner and I discussed the striking parallels between the Reagan era and Donald Trump’s second presidency — Attorney General Todd Blanche, for instance, appears to be a more partisan and shameless version of Ed Meese, Reagan’s controversial second attorney general — and what liberals can learn from the success of the conservative legal movement. |
| “Conservatives are incredibly good at seeing raw talent, building a pipeline from the grassroots directly into the institution, and not questioning the fervor and the energy of the grassroots, but harnessing it instead,” Wagner told me. |
| The Reagan-era activists thought big and took risks, too. “They didn’t ask questions. There was not a lot of dithering,” Wagner said. “It really is a story of coalition building at its root.” |
| This interview has been edited for length and clarity. |
|
| There are multiple dimensions of contemporary relevance in your book. |
| There unfortunately are. |
| Your book describes the history, which is valuable in and of itself, but there are obvious echoes of that history today — including Ronald Reagan’s cultural revanchism, the aggressive effort to appoint judges who will rule in favor of conservatives, and the partisanship of Reagan’s second attorney general, Ed Meese, who we’ll come back to. |
| When you started writing this book and chose this period to excavate, did you anticipate that there would be all these parallels? |
| I was interested in the origin story of people and things that began in this period. I knew that I was going to run into [Supreme Court Justices] Clarence Thomas and Sam Alito and John Roberts and the Federalist Society and the Heritage Foundation. |
| But I didn’t realize the degree to which some of the most prominent conservative people and ideas really cut their teeth or were developed in this period. I didn’t expect we were going to meet a young Roger Ailes or Laura Ingraham or Mark Levin. |
| I didn’t realize that the most harebrained elements of the conservative platform would have been seeded half a century ago by this group of people, and that some of the figureheads of the movement really came into their own in this period. |
| A lot of it was surprising. I’m the first person to admit I didn’t go to law school. I’m not a lawyer. |
| The book is of course about the courts, and you intersect a lot with the law, but it’s really a story about politics. |
| That’s why I was drawn to [this period] in particular, because I knew it was going to be a story about a political movement and momentum and strategy. |
| But there were definitely a lot of surprises along the way. |
| Now that you’ve digested this period, do you feel like it’s helped illuminate for you some of the controversies right now under the Trump administration — including how you look at the Trump Justice Department? |
| Totally. I mean, it’s been really — the scales have fallen from my eyes, Ankush. |
| | | “This is a battle that has been fought ever since we started establishing more formally and legally a more inclusive and equitable society in the mid-20th century.” |
|
| What’s amazing about the right-wing movement is how consistent it has been over the course of a half century, how tenacious and disciplined they have been about keeping their eyes on the prize. |
| It’s a real contrast, I think, to what we think of as knee-jerk Trump. I think a lot of us think the Trump movement and MAGA generally is a confection of the 21st century, when in reality it is very much the inheritance of the movement that began, I would argue, probably after Reconstruction, but more specifically after the civil rights period in the 1960s. |
| This is a battle that has been fought ever since we started establishing more formally and legally a more inclusive and equitable society in the mid-20th century. |
| In that way it’s given me — I don’t know if “respect” is the word — but it has shown me what it is to create a political movement, to create a winning political movement in this day and age: the patience, the organization, and the discipline that’s required. |
| And the risk-taking. That comes through very clearly in your book, over and over and over again — these conservative figures, many emerging out of nowhere, taking these big risks by launching an initiative or creating an organization that ends up paying these tremendous long-term dividends. |
| Totally. The catalytic moment happens — in particular, I think a lot of people think the right-wing movement and the right-wing battle for the courts was supercharged by Roe, but really it’s desegregation. It’s the Bob Jones University case. |
| I didn’t realize the degree to which the new right had some of its foot soldiers in place, but they needed to get the grassroots. They needed to get the coalition primed to really take on a fight, and they needed a social issue that they could use. And Bob Jones — the question of race-segregationist academies and whether they deserve tax exemptions, even though they were really running afoul of civil rights law — was that element. |
| | | “It is the Rosetta Stone in understanding what animates this faction of American politics.” |
|
| For me, that was just an extraordinary teachable moment. |
| The idea that in the 1980s, you are saying, “We don’t want to allow Black people into our school, and we are going to keep trying to claim tax exemptions for our school because we determined that it is God’s plan to have a segregated faculty, to have a segregated student body.” That was an outlandish position to take. |
| Yet it’s the thing that brought Christian evangelicals into the new right, conservative movement, and it really supercharged the debate. It is the Rosetta Stone in understanding what animates this faction of American politics. |
| In retrospect, the idea that we were going to be living in any kind of post-racial America after the election of Barack Obama completely ignores the battle that was very much still unfolding and has been waged since 1965. It’s unbelievable. |
| But anyway, to your point, they staked out positions — in the last days of disco, they’re out there already opposed to civil rights, opposed to Roe v. Wade, opposed to an Equal Rights Amendment to the Constitution. |
| They just were unflinching in saying, “We see where this country thinks it’s going, and we’re going to tell you it’s going to go down another path. We’re going to turn this ocean liner of a society 180 degrees to the right.” |
| I didn’t realize how similar many of the arguments were. When Republicans today discuss efforts to enforce anti-discrimination protections, they often say that this is just discrimination against white men. These are the exact same arguments from 40 years ago. |
| Or just saying that any infringement on this subset of the public is an assault on freedom of religion or freedom of speech. I mean, this is like the ACA debate and the Hobby Lobby case. |
| Christian fundamentalism has allowed them a banner under which the conservative right marches. It is a marriage of convenience in a lot of ways. When you think about the other aspects of the Trump administration and Trump himself, they’re so at odds with Christian values. |
| Nonetheless, they figured out, both through originalism and through their coalition building, two Trojan horses that have proved useful to them. |
| Any assault on these values, regardless of whether they’re racist or sexist, is an assault on Christianity. We are going to ostracize you by saying you are outside the bounds of Christian norms and you are godless liberal masses. |
| Or if [the conduct at issue] does not comport with the [supposed] vision of the Founding Fathers, then therefore it should not have federal protection. |
| They built these two vehicles through coalition building and legal theory that were incredibly elastic and have been so useful [to them]. |
| The use of religious freedom arguments as a cudgel against anti-discrimination protections has been very successful under this Supreme Court. Now, if you can claim that some anti-discrimination protection is infringing upon your religious views — you have to be a Christian, but you’re “religious” — |
| Right. You cannot be a Muslim in a certain way. |
| Exactly. This is a one-religion exemption. |
| If you do that, then Samuel Alito and other Republican appointees will say, “Well, freedom of religion is the key thing here, and it gets to override these anti-discrimination protections.” |
| Let’s shift gears a little. You described your work as a book about politics, and you have an unusual vantage point as someone who’s been a political journalist for a long time. Do you feel like people understand — as well as maybe you do now — how closely intertwined law and politics really are? |
| I think so. We have the most lawless president in American history, so we’ve all had to go to television law school on that. |
| “Granting cert” is now something that I understand in a way that I did not. Legal terms that were previously just indecipherable Latin are now common parlance. I think both Trump’s lawlessness and his pushing against the very bounds of what is constitutional have made us all legal scholars in our own right. |
| But it’s also that the courts themselves have just amassed so much power, both for bad and good. You see the lower courts often acting as a bulwark against the administration’s worst impulses. |
| But the Supreme Court — I mean, we’re recording this on a day when the Supreme Court is allowing the Department of Homeland Security to create a massive federal database, including Social Security numbers, to just check whether people are eligible to vote or not. I am not a libertarian. I am not an expert in civil rights law or civil liberties law, but it seems plainly, on its face, not constitutional. |
| Having said that, because the Supreme Court has so unilaterally managed to reshape so much of American society in the Trump years — in part because Trump depends upon the Supreme Court to validate his worst and most unlawful impulses — I think everybody has gotten a quick crash course in law and the courts and the importance of them both: the high court and the lower courts and the dynamic. |
| So, yeah, I think people have a much keener understanding of the intersection of law and politics these days. |
| I certainly always thought it was a little sus that nine berobed elders were making decisions without any input from the American public, and often completely at odds with the desires of the American public, but that’s been supercharged in the Trump years. |
| Legal liberals are keenly aware of the success of the conservative legal movement and conservative legal pipeline. There have been efforts to replicate that success, but they have largely failed. |
| Now that you’ve dug in on this period of time, do you have an assessment of why that is, or any lessons you think the left could learn from the political organizing here and the successful effort to use these political tools to reshape the judiciary and American law? |
| Well, again, I am not a constitutional scholar, nor am I a Supreme Court reform advocate, although I do think it needs to be reformed and possibly expanded, with some term limits. |
| But I do think one of the most instructive parts of the book is the relationship between this nascent law student group called the Federalist Society and the Reagan administration. |
| You may know the origin story: The Federalist Society begins as a debate society, effectively, for disaffected conservatives on law school campuses. |
| But overnight, they have input and they are being shepherded through American politics by leading lights of the administration. |
| Their professorial advisers are Robert Bork and Antonin Scalia, which is like — jackpot. Good job, guys. Way to pick the right professors to help advise you on your student group. |
| | | “Conservatives are incredibly good at seeing raw talent, building a pipeline from the grassroots directly into the institution, and not questioning the fervor and the energy of the grassroots” |
|
| But when they have their first symposium, there are already members of the Reagan administration who are either in attendance or aware of it. |
| It’s a law students’ group symposium happening on a campus — Yale. I mean, it’s an Ivy League and all, but it’s not like they’re renting out the convention center in Washington, D.C. |
| Conservatives are incredibly good at seeing raw talent, building a pipeline from the grassroots directly into the institution, and not questioning the fervor and the energy of the grassroots, but harnessing it instead. I think that’s probably the biggest difference. |
| The left needs to find a way to capture the energy and the momentum at the grassroots, whether it’s in a university group or an advocacy group, and somehow harness that and channel it into building that pipeline and that ladder into the DOJ and onto the bench and up to the high court. That is exactly what the conservatives did. |
| The reason we have Clarence Thomas is because the Federalist Society helped indoctrinate him into a sort of radical right-wing politics while he was bouncing around Washington, D.C., trying to figure out his identity. He is this test case. He is a success story for the pipeline. |
| That’s one part of it, but it also is a story in patience. I was stunned by the way in which the conservative right managed the aftermath of the Bork nomination, insofar as it became a recruitment bonanza. Can you imagine a similar loss on the left, and the left looking at it and making a martyr out of the person? |
| There’s a lot of hand-wringing that happens on the left, and conservatives are just not plagued by that same sense of, I don’t know, self-reflection, I guess we’ll call it. |
| I don’t want to belabor this, but you and I know each other’s views about former Attorney General Merrick Garland, who I think is the personification of the impulse you’re describing on the left — this timidity. |
| One big lesson from your book is that political will — just political will — can do a lot. The story you lay out about these political officials cultivating this group and pulling people in is a story about people who just wanted to do it and decided that they were going to do it. |
| Totally. They just did it. They didn’t ask questions. There was not a lot of dithering. It really is a story of coalition building at its root. |
| In the Bob Jones case, Paul Weyrich understands that Christian evangelicals can be brought into this fight because he’s going to make it a fight about freedom of religion. He goes to pastors and says, “You guys need to get on board.” |
| The pastors are really reluctant. They say, “This isn’t a fight that our churches want us to get into.” Weyrich says, “I’m going to give you the polling. I’m going to tell you, this is your fight, and you’re going to fight it.” |
| Just through sheer force of personality, I think — or probably more, some facts and some data — he creates the Moral Majority, and he creates this coalition that exists so powerfully 45 years later. |
| Let’s talk about Ed Meese. There’s this crazy anecdote in your book I had never even heard of, where he’s talking to the press about hungry children, and he says that some of the allegations of hunger are “purely political.” Hungry children. |
| This is around Christmastime, too, and he’s invoking Scrooge as maybe not such a bad guy after all. It takes cojones to be that hardline, doesn’t it? |
| It does. I also thought immediately that this reminded me of Todd Blanche, who will just go up and say whatever on behalf of President Trump, even if it’s totally false. |
| Your book actually reminded me of a story that I haven’t publicly told before. |
| When Trump won in 2016, I was at the Justice Department. I had been there only for a few months, but the morning after his election, I got an email from a lawyer who I was very friendly with — someone who I considered a mentor and professional role model — who had worked at the Justice Department decades earlier and had risen to a very senior position in the U.S. Attorney’s Office in Manhattan. They knew me very well, and they helped me get the job at the Justice Department. |
| That person emailed me out of the blue and basically said, “I’m sure you have a lot of thoughts running through your head right now, but I was at the Justice Department when Ed Meese was running it. It’ll be difficult, but it’ll be fine. Just keep your head down and do your work.” |
| So these parallels are not coincidences or artifacts of the writing. I feel like I learned more about Todd Blanche reading about Ed Meese. |
| | | “Todd Blanche actually knows better. He’s just so relentlessly and shamelessly hungry for power that he’ll do anything.” |
|
| I learned all about the fealty and, I guess, discipline, the shamelessness. But I mean, Meese is a true believer. He really believes this shit. |
| The only difference between Todd Blanche [and Meese], which makes it maybe even worse, is that you sense that Todd Blanche still has part of his frontal lobe left. |
| Not that Ed Meese was stupid or in any way incapacitated. But Todd Blanche actually knows better. He’s just so relentlessly and shamelessly hungry for power that he’ll do anything. |
| They are willing to go out there and defend anything because their pledge of allegiance to the president of the United States is greater than their pledge of allegiance to the Constitution. Meese creates that mold of an absolute loyalist, a hardline loyalist that has personal connections to [the president]. |
| One of the indicators of that is when Meese’s son Scott dies in a car crash, and the people who console him, who hold him, who he weeps to, are the Reagans. And I’m not saying — |
| That’s a remarkable story. I did not know that before reading your book. |
| It is a very tragic story. His 19-year-old son, who’s very much the inheritor. He’s a conservative, he’s engaged in politics. |
| Blanche is, of course, Trump’s personal lawyer. They’ve proved their personal allegiance to these men. And that’s why they entrust them with — for both Reagan and Trump — arguably one of the most, if not the most, important cabinet positions in the administration. |
| Certainly for Trump, Blanche is and will be the most important cabinet official — although you could argue that the secretary of men’s grooming and war, Pete Hegseth, is playing a critical role. |
| I think the relationship between Blanche and Trump is much more intimate and more nefarious than even the know-nothing Department of Defense secretary. |
| Having produced this work, do you have a little bit of a different perspective on this theme that you often hear from legal analysts and commentators about how the attorney general and the Justice Department should be independent from the White House? |
| Should liberals embrace something like the conservative model — not the Blanche model per se, but a model where they’re more comfortable putting someone in charge at the Justice Department who understands politics, who’s willing to engage in politics and to understand the legal system and the Justice Department’s work in a broader political context? The anti-Merrick Garland, if you will. |
| I genuinely think that you need someone who is going to be a fighter, but I don’t know that a fighter is the same as a partisan. I think that there’s an important distinction there. |
| Merrick Garland was the wrong choice because he wasn’t a fighter. |
| It’s not that they needed a partisan. They needed someone who was going to correct the wrongdoing and rebalance the scales, which isn’t about tilting all the way to the left. It’s just getting back to lawfulness. |
| I’m not sure that you need a partisan warrior the way Meese was, but I do think you need someone who’s a warrior, who’s really going to go out there and shake shit up and rebuild institutions in a way where we’re not just dependent on protocol or tradition to be bulwarks against the degradation of democracy. |
| I think lessons have been learned. Someone was asking me, “Well, Democrats appoint partisans to the bench just like Republicans do.” And I was reminded of the fact that Barack Obama nominated Merrick Garland to replace Antonin Scalia, a Republican member of the Federalist Society. |
| What did liberals get for that? First of all, Merrick Garland never got his day in the Senate. But also, we got Amy Coney Barrett for Ruth Bader Ginsburg. Give me a fucking break. |
| I think the left has learned from that. There can be no more capitulation to the feelings of the right when it concerns justice. |
| What’s most important is that you have someone who has a clear-eyed and principled understanding of the Constitution — which, unfortunately, because the right has so bastardized its own position, means that they’re going to be seen as more leftist. |
| It’s important to find someone who’s steeped in lawfulness rather than capital-D Democratic Party politics. |
| One fear I think that some people have, looking at the grand sweep of American political history, is that the politics from Richard Nixon to Reagan to George W. Bush to Trump reflect a sort of inexorable trend. |
| Do you see more of a push and pull in history, or are we doomed? |
| No, I don’t think we’re doomed at all. I do think there’s a push and pull. I think what we are seeing now is really a reaction to significant progress 50 years ago and incremental progress in the interim. |
| I think that there’s naturally a pendulum swing, although I do think right now, in our political landscape, we’ve tacked way right. |
| Just bringing us back to the center is going to take some heave-hoing. I don’t think it’s inevitable that we continue on a trend line of Donald Trump. |
| I do think we’re in a dangerous place in terms of the degree to which he can damage the systems and institutions that keep us a free and fair democracy. |
| That’s actually the thing that I worry about the most: What does the rebuild effort look like afterwards, to allow for some course correction? |
| But first, you have to shore up the institutions themselves, make sure we’re still having fair elections. We have to figure out the information vortexes, the silos that people put themselves in. |
| There are so many structural issues that, if not fixed, lend themselves to a more fascist, authoritarian-style government. We need to fix those, but I don’t think it’s an inexorable decline by any means. |
| I’m really hopeful about the fact that we have a gigantic presidential election process coming up in 2028. It’s going to be a real time for the left to figure out what its principles are, who it’s choosing to be its leader. |
| It’s been so long — since the George W. Bush years — since there’s truly been an open primary process. The field is wide. It’s going to be a time for big ideas and big debate. |
| There’s a lot of heat on the moment, but I think that’s exciting, and I think a lot can come from that. |
| So I’m choosing, Ankush, to be optimistic about what’s possible. I believe that democracy is elastic, and that it can expand and contract. We may be in a moment of contraction right now, but expansion could be on the horizon, too. |
