13 Nov 2023
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You probably know Stephen Miller as an election denier, a perennial Fox News guest, and, most famously, as the Trump adviser who proposed immigration policies so brutal that his own uncle spoke out against him. These days, Miller also helms a hard-right law firm that is bent on eradicating any and all diversity efforts, everywhere from NASCAR to law schools.
You can think of Miller’s “America First Legal” (AFL) firm as sort of a low-rent version of the longtime conservative law firm Alliance Defending Freedom (ADF). Where ADF knows enough to present a professional facade while trying to eradicate abortion, enshrining into law bigotry against LGBTQ people, and undermining public health efforts in the middle of a pandemic, AFL displays no such restraint.
In a world where Trump hadn’t been the vehicle for conservatives to capture the federal courts, America First’s efforts might be viewed as quixotic or comical, a set of right-wing obsessions going nowhere. But now, Miller has a whole host of judges who share his views, and America First Legal keeps racking up wins.
Miller founded AFL in 2021, shortly after President Biden took office. The other high-profile Trumpland denizens associated with the organization at its founding were not exactly people of unimpeachable character. Mark Meadows, Trump’s former chief of staff, currently has a tangled litigation situation of his own. He faces criminal charges in Georgia for his participation in the attempt to overturn the 2020 election while at the same time getting immunity in the DC election interference case, having testified to the grand jury that “obviously, we didn’t win.” (That latter testimony has created a new legal problem for Meadows, who is now being sued by his publisher because his book, “The Chief’s Chief,” has at its core the key claim that the election was stolen, which is contradicted by his grand jury testimony.)
Also on AFL’s board from the start was Trump’s former Acting Assistant Attorney General Matthew Whitaker. Whitaker is known primarily for refusing to recuse himself from overseeing the Mueller investigation and sitting on the board of a company that scammed inventors and ultimately had to pay the federal government $26 million in fines.
Despite assembling such an impressive confederacy of dunces, AFL has found a depressing amount of success in knocking down both governmental and private efforts to rectify historic racial injustices and increase diversity. As soon as the current administration launches a new initiative to address these issues, AFL is there to get it thrown out.
In May 2021, AFL successfully sued the administration over a covid-19 program, the Restaurant Revitalization Fund, which was created to provide funding to help businesses recover from the financial losses of the pandemic. Notably, this program didn’t exclude white business owners — it simply said that for the first 21 days of funding, the Small Business Association had to prioritize applications from women and minority-owned businesses.
Miller’s group also got the courts to throw out a $4 billion deal that would have provided funds for minority farmers. Claiming the program discriminated against white people, AFL challenged it in court and won. This lawsuit was especially egregious, as 95 percent of farmers are white, and Black farmers own less than one percent of the farmland in America. From 1900 to 1997, the number of Black farmers dropped by 98 percent. The administration’s relatively meager attempt to right a historic wrong couldn’t succeed in the face of Miller’s deep commitment to white supremacy and his belief that any attempt at equity “represents one of the single greatest threats to the survival of our constitutional system.”
AFL filed its suit in the Northern District of Texas, a jurisdiction with only one non-GOP appointee, and landed Judge Reed O’Connor, a George W. Bush appointee who has seemingly made it his life’s work to eliminate Obamacare. AFL has also taken to filing many cases in the Amarillo division of the Northern District of Texas, ensuring the case will be heard by the only judge on the bench there, who happens to be Trump appointee Judge Matthew Kacsmaryk.
Kacsmaryk is not just a reliably hard-right judge — he’s an extremely hard-right judge. He threw out the FDA’s approval of the medication abortion drug mifepristone, ruled that Title X, which funds free reproductive health care to lower-income people, violates parents’ rights because minors could obtain birth control without their consent, and significantly rolled back protections for LGBTQ workers. So, when AFL filed a lawsuit against the Biden administration on behalf of conservative doctors who wanted to refuse gender-affirming care for transgender patients, Kacsmaryk was there to ensure those doctors prevailed.
Besides enjoying a friendly lower federal court landscape, Miller also benefits from the recent Supreme Court decision that struck down affirmative action in college admissions. The decision effectively allows him to sue pretty much anyone who may even tangentially be trying to enact diversity measures by complaining that they are promoting “anti-white bigotry.”
AFL has gone on a tear in the few short months since that decision (Student for Fair Admissions v. Harvard) came down. Just last month, AFL filed a lawsuit against New York University behalf of a first-year white heterosexual male law student who claims that how the school selects students for law review violates his civil rights. Before the Students for Fair Admissions case was decided in June, the law review stated it selected 15 students based on grades, 15 based on a writing competition, eight on a combination of grades and writing, and 12 chosen by a diversity committee.
The law student behind the NYU suit is anonymous, but he definitely hasn’t been discriminated against in any fashion because he has not yet applied for a spot on law review and won’t until summer 2024. Further, after Students for Fair Admissions was issued, the law review removed any reference to a diversity committee and now says it will select its 55 members based on a combination of writing competition entries, grades, and a statement of interest from the student.
That’s not enough for AFL, which insists the change to the website was simply to “obscure the details of the membership selection process” and that the website “makes clear that ‘diversity’ remains a prime consideration in the selection of members.” But the website’s only mention of diversity is an anodyne statement that the school seeks a “committed, accomplished, and diverse staff of editors.” So, to recap: the anonymous plaintiff has not yet tried to get on law review and the website no longer really talks about diversity, but AFL is pursuing the case nonetheless. Even having NYU preemptively knuckle under wasn’t enough.
Last week, AFL wrote to the Equal Employment Opportunity Commission demanding it investigate NASCAR, which has several diversity initiatives for drivers and pit crew members to increase the participation of women and minorities in the sport. AFL claims that those initiatives constitute an unlawful employment practice because they discriminate against white male drivers.
In NASCAR’s top level of competition, the Cup Series, there is one Black driver, one non-American Mexican driver, and zero women drivers. As Mike Freeman, writing in USA Today put it, “So instead of its drivers being 99.999999 percent white, we need them to be even more white. Is it possible, Miller might ask, for NASCAR to be 2,000 percent white?” Much like the lawsuit against NYU, the fact that NASCAR has already changed its selection criteria to the vague statement that it seeks people with “diverse backgrounds and experiences” is not enough for AFL, which insists that any such language change is a fig leaf and that NASCAR continues to discriminate.
AFL has also asked the EEOC to investigate Activision and Kellogg’s because those companies have diversity and equity programs that AFL alleges violate the law because they discriminate against “white, Asian, and Jewish males.” AFL is generally careful to include Asian and Jewish men along with white men in its charges of discrimination, an absurd touch given Miller’s willingness to work for Trump, a blatantly anti-Asian and antisemitic person. Miller even believes companies shouldn’t be allowed to have employee network groups — groups that are typically, but not always, affinity groups for women and minorities in the workplace, because “no such group exists for heterosexual white males.”
So, there’s no way a company can seek to diversify its workforce and no way in which workers can affirmatively come together based on shared status that will satisfy AFL.
Not content to limit itself to pushing a white supremacist agenda, AFL also wants to push a conservative Christian one. The group has also requested that the EEOC investigate Lyft and Dick’s Sporting Goods over policies to provide travel funds for people who have to leave their state to get an abortion. Their logic? Such travel benefits are not available for pregnant people who don’t want abortions. AFL hasn’t explained how it would benefit someone who doesn’t want an abortion to get money to travel to a state where abortion is legal.
In another era, this would be clownish behavior, the 2020s equivalent to Obama-era weirdos like Orly Taitz, the conservative attorney/dentist/birther, or Larry Klayman, who famously sued his own mother along with railing against Obama and his “leftist Jewish government comrade and partners in crime.” These days, however, AFL should be taken seriously as a dedicated, well-funded legal group that has the ear of the federal courts and a track record of success.
Meanwhile, Miller is also helping lead the effort to recruit attorneys for a 2024 Trump administration — attorneys that would make the Federalist Society denizens with whom Trump stocked the courts look liberal by comparison. Stephen Miller thinks America faces a constitutional crisis whenever an entity makes the merest nod toward the importance of a workforce that isn’t just white and male. But the real crisis is Miller himself.
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