‘Activist judges’: in the US and Australia, the Right intends to make the law its slave

Atlas interlinked organisations and copycats are working to emulate the destructive US Federalist Society to prevent the law from limiting their actions around the globe.

One of the key strategies used by the transnational authoritarian Right to subvert democratic projects is “playing the refs.” Their strategists work to discredit journalists and media platforms that hold them to account. They tarnish academics, civil servants, agencies and charities that are expert in their inconvenient fields. Fact-checkers are made to look partisan, so nobody is left to call out lies. One target in America and Australia is the judiciary which they disparage with the label “activist judges”.

By teaching the public to disdain the ABC as “socialist” or “leftist” or “woke”, the Australian Right has aimed to undermine any reporting that holds them to account. Their base is now inoculated from any courage the ABC musters to expose disingenuous or deceitful pronouncements. Constant charges of bias by “conservative” politicians has pressured the ABC not to challenge them.

This kind of playing the refs is a feature of the US Right. Recently, judges, as the primary bulwark against unconstitutional and illegal actions by Trump’s executive, were targeted. Trump’s press secretary, Karoline Leavitt, discounted accusations of a constitutional crisis with 70 cases challenging illegal activity. Instead, she declared, the “real crisis is taking place within our judiciary, where activist judges are abusing their power to unilaterally block the president’s basic executive authority and thwart the will of the people”.

This appears to forecast that Trump’s team intends to escalate its disregard for judicial decisions. District Court Judge John McConnell found that the government had “disobeyed a court order” to stop its budget funding freeze.

Monarch-CEO Elon Musk and Vice-President JD Vance have dared the president to show the courts how powerless they are.

Trump’s team is well integrated with both the Atlas Network junktanks, about which Senator Peter Whish-Wilson spoke so eloquently in the Australian parliament recently. They are also affiliated with junktanks of inter-related organisations such as the theocratic Council for National Policy (CNP) and the Conservative Partnership Institute. Together these networks shaped Project 2025, the latest iteration of the Heritage Foundation playbook for Republican presidents.

The body that created the Atlas Network, the Mont Pelerin Society (MPS), worked over decades to manipulate the law to allow corporations to dictate its impact. Leonard Leo, the machiavel leading the Atlas/CNP junktank, the Federalist Society, was motivated by a distaste for “activist judges” from the 1980s. The Federalist Society has now turned the Supreme Court of the US into a Trump-supporting “imperial juristocracy“. The Claremont Institute, one of the elite Atlas brands, has a former law professor and law school dean who drove the illegal playbook for Trump’s 2021 insurrection.

The trope of “judicial activism” has been promoted in Australia since the Wik Native Title decision in 1997, with the intent of undermining judges’ decisions, in particular on resource extraction and climate. The impact is also to intimidate judges away from making decisions the Right will reject. It is not surprising that those promoting it are affiliated with the same junktanks who worked so hard to discredit the Voice to parliament: the mining sector has long obstructed First Peoples’ and environmental claims bolstering each other.

Foundational Austrian School MPS economists such as Friedrich von Hayek were funded by fossil fuel even before the MPS first met in 1947. Fossil fuel money with affiliated interests in finance and consulting have been among the most important interest groups, using the now 580 junktanks in the network to influence climate denial and delay.

The campaign is transnational. In New Zealand, for example, Deputy Prime Minister and careerist Atlas Network affiliate, David Seymour, is decrying “activist judges and bureaucrats” too in his attempt to take rights from Maōri people. The Atlas Institute of Public Affairs (IPA) used the trope in its submission opposing the Voice. In fact, the Australian Financial Review’s legal editor found most of the submissions against the Voice use the trope of “activist judges”.

Australia’s importance to international resource extraction corporations is marked by the over-representation of Australian miners, journalists, politicians, policy strategists and academics on the MPS. Forty-two Australians were listed in 2013. They include John Howard (MPS 2010).

Maurice Newman was invited onto the secretive MPS in 1976 when he co-founded the Centre for Independent Studies (CIS). He was later chair of Deutsche Bank, one of the largest funders of fossil fuel projects. He was placed on the ABC board from 2000, and chair from 2007-2012. Newman has been a noted “climate sceptic”. He, with the IPA and Murdoch’s The Australian, have promoted a “fever swamp of climate denial” attacking the Bureau of Meteorology.

Newman is one of the backers of the Atlas-affiliated astroturf group, Advance. It has spread disinformation against the Voice and is also fighting renewables as well as working to discredit the Climate 200-supported independents, alongside new Atlas-like junktank Australians for Prosperity. That body is heavily coal-funded and, like Advance, linked closely to the Liberal Party.

Grim reports have emerged from volunteers at Victoria’s recent by-elections regarding disturbing behaviour by Advance’s people around booths.

Janet Albrechtsen was revealed to be a member of the MPS from 2011 on rare leaked membership lists. She was also the director and chair of the IPA between 2016 and 2020. Her invitation followed her influential work on the ABC board from 2005-10.

Albrechtsen has been the leader of the spurious fight against “judicial activism” in Australia for decades, although she praises “conservative” activist judges. This work appears particularly in the pages of The Australian. Albrechtsen’s employer, Rupert Murdoch, has a lifelong connection to the Atlas junktanks, in particular the IPA. Isabelle Reinecke, who wrote Courting Power: law, democracy and the public interest in Australia has recounted the nature of the insidious campaign.

Miner Ron Manners (MPS 1998) regularly illustrates the connections between Australian junktanks, the international circuit and the MPS in his newsletters. His Mannkal junktank profile boasts that he is “an active board member of the Mont Pelerin Society and is on the Advisory Council of the Atlas Network (Washington, DC)”.

Mannkal sends West Australian “conservative” students to Atlas Network junktanks around the world on scholarship, and the Atlas head office itself. It sends scholars to the Samuel Griffith Society conference. In her report back to Mannkal, one of the youthful 2023 scholars regretted the uniform argument for “No” in the Voice referendum featured at that older forum.

Hugh Morgan became chief executive of Western Mining at 36 in 1976. In 1979, he mustered the financial support, largely from mining corporations, to turn the hobby of Greg Lindsay (MPS 1982) — the Centre for Independent Studies — into a full-time job. Morgan was treasurer of the IPA from 1982. The Australian Institute of Public Policy was set up with support from Morgan as well as seed funding from Atlas itself in 1983. (It merged with the IPA in 1991.) Morgan co-founded the HR Nicholls society to break labour strength.

Morgan’s speechwriter and Western Mining executive officer Ray Evans (MPS from 1988) explained: “My role was to engage in the culture wars and provide [Morgan] with feedback.” Evans was secretary of the Bennelong Society which worked to manage the Aboriginal problem for mining. Warren Mundine and Jacinta Price Nampijinpa’s mother, Bess,received a medal from the Bennelong Society for their work. Both Mundine and Price Nampijinpa work with the CIS now. Evans was also president of HR Nicholls. He was, furthermore, secretary of Lavoisier which fought climate science.

In 1992, the Samuel Griffith Society was founded, as a conservative legal body. Its founders were Hugh Morgan, John Stone (MPS from 2008), Greg Craven (CIS) and Chief Justice Sir Harry Gibbs. Ray Evans was the body’s secretary.

The ABC’s Business Reporter Gareth Hutchens used Dominic Kelly’s words from his account of these junktanks’ history: "These four organisations did much more than argue for specific policy reforms — they set out to change the way Australians thought." As one metric of their success, Hutchens pointed out that in 2022, Australia’s Reserve Bank (RBA) had two CIS figures on the RBA’s board and in 2020 had been granting money to the CIS and the Atlas Sydney Institute (formerly Sydney’s IPA branch) since 2006. The RBA was not granting to thinktanks representing the opposite point of view. The 2020 reporting caused a change in policy: in 2021, the RBA cancelled its sponsorship of the Sydney Institute beyond 2021, and converted its “sponsorship” of the CIS to “corporate membership.” It also added some other thinktanks to its roster.

The founders’ intent doesn’t necessarily shape these bodies permanently. Employees and “fellows” may well not know the original intent and connections. MPS members, many the heads of these junktanks, however, continue to meet, where one might mix with “a mining magnate, the chairman of a prominent think-tank, a famous TV presenter and an ex-CIA agent”. It’s worth inspecting membership lists to see which academics, particularly legal in this context, are affiliated.

Samuel Griffith Society intends to maintain freedom for the states in a federalised system. This is not least to allow mining-dependent states to maintain their independence from Canberra. As our climate catastrophe escalates, our captive politicians seem unable to act; the Griffith goal will be to prevent climate litigation such as Sharma making law around those golden handcuffs.

And Griffith is stepping up its game. While it isn’t named on the official Atlas partner lists, the group was reported as setting up offices with the revivified HR Nicholls society in 2023. (Nicholls was being revived by Louise Staley, a former Victorian Liberal Party politician. Atlas partner HR Nicholls is intended to make sure there is no resurgence in labour rights.) (1) The Executive Director of Griffith for the last four years is the scandal-plagued Xavier Boffa.

Boffa was a prominent actor in outraged reporting about behaviour in Young Liberals groups earlier in the last decade, with disturbing tales emerging from the organisation.(2) Luckily Boffa was able to gain a visa in 2019 to travel to the US to enjoy a congressional internship.

Boffa travelled to Washington again with former Liberal Senator and UN Ambassador Mitch Fifield late in 2024. The two men took part in the Federalist Society’s 2024 National Lawyers Convention. Fifield was attending as President of a Law and Liberty Society. Boffa was attending as that body’s Executive Vice President. The International Law and Liberty Society is a body that aims to help “conservative” lawyers gain Federalist Society help to replicate Federalist’s work at home. This is the explanation by the Hungarian branch.

Boffa’s LinkedIn also lists him as current board member for HR Nicholls, and a Non-Executive Director of a Ray Evans Institute. That organ describes itself as “Located in the historic Alcaston House at the 'Paris End' of Collins Street, The Ray Evans Institute is home to a diverse group of independent think tanks dedicated to facilitating and contributing to meaningful public discourse around significant contemporary public policy issues.” Boffa has served under ousted Victorian Liberal Premier, John Pesutto, and is president of the Camberwell Liberal Party Branch.

Fifield was regularly associated with the IPA during his years as a politician. During his time as Minister for Communications from 2015, Crikey reported, the ABC became “the all-but exclusive creation of one man — the Institute of Public Affairs-aligned Senator Mitch Fifield.” The figures involved in these influence operations don’t just “play the refs.”

Janet Albrechtsen celebrated Boffa and the Griffith Society’s efforts to emulate the Federalist Society in an article entitled “US-style legal conservatism is needed here” (The Australian 26/10/2024).

The Federalist Society is, on the surface, a debating club that meets to foster “conservative” young lawyers’ careers. In fact it is an Atlas Network and Council for National Policy (CNP) powerhouse that uses its immense treasury to ensure ultra-conservative policy is enforced. Its appointments on the Supreme Court licensed bribery, as long as the bribes were paid after the favour, placed itself over agency experts to decide which chemicals, for example, you can safely breathe, and enabled Trump’s team to rule ultimately without legal check, all in the final day of the last term. The benefits of these decisions for the corporate and Dark Money figures around the Trumpist Project 2025 ought to be obvious. They removed access to abortion with the Dodds decision and have flagged their willingness to re-examine access to contraception, marriage equality and the legality of homosexuality. They might even accept a right to block women’ interstate travel. Federalist’s Leo is an ultra-conservative Rad Trad Catholic.

When Albrechtsen and her colleagues attack courts for unwelcome decisions as “activist judges,” the American example of a legal system on the brink of losing its authority — both with illiberal leaders and a disgusted public — must be viewed as a dire warning.

These are not the only entities with the intent to impact Australia’s legal system. There is also the Rule of Law Institute of Australia, and its Rule of Law Education Centre. Board members are key people in the fight against an integrity body monitoring Australian politicians and public servants, in particular Chris Merritt of The Australian. In June 2024, Walter Sofronoff KC gave the Robin Speed Memorial Address. It was Sofronoff whose communications with Janet Albrechtsen created a scandal in the Lehrmann inquiry. Hugh Morgan is on the Governing Committee.

Legal academic Mehrsa Baradaran published The Quiet Coup: neoliberalism and the looting of America in 2024. She explains how it was controlling the law - and the MPS/Atlas role in that process - that handed near unlimited power to corporations and Dark Money donors.

The New York prosector, Danielle Sassoon, just resigned on being instructed to drop corruption charges against a Trump ally. She was both a member of the “conservative” Federalist Society, and was a former clerk for a judicial icon for the Right (including for Albrechtsen who labelled him a “conservative intellectual gladiator”), Justice Scalia.

It is near impossible to control the trajectory of such system-breaking once it is unleashed. Australia’s actors intent on shackling our legal system should take heed.

(1) Noel Towell & Kishor Napier-Raman CBD section of The Age 14/6/23

(2) Farrah Tomazin “Anger erupts in Liberal Party over treatment of women” The Age 19/10/17; Christopher Scanlon “Yearning for a safe space to vent bigotry” The Age 2/5/17; Farrah Tomazin “Young Liberals’ fight causes young woman to seek intervention order from the police” SMH 12/10/17; Paul Sakkal and Samantha Hutchinson “Flak as Libs lay out five-year plan” The Age 1/7/20. There was also an ugly public dispute at a Young Liberals gathering in South Australia in 2019.

A briefer version of this essay was first published at Pearls and Irritations.

This research is supported by an Australian Government Research Training Program Scholarship.