amicus brief friend of ct

919 art'l on weaponization

SEE TWO

no merri

see legal arm

see leo lnrd tag

see bak

see legal suppression

see KICKASS WHITEHOUSE

badish guardian code

---

-=-=

NAOMI REMINDS US OF KICKASS: THE PT IS FIND CLERK TO TAYLOR PRECEDENTS, TRUSTED SRC/ PAL 9 26

-=-=

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUITArgued September 5, 2024Decided January 24, 2025No. 23-5173AMERICA FIRST LEGAL FOUNDATION,APPELLANTv.UNITED STATES DEPARTMENT OF AGRICULTURE,ET AL.,

APPELLEESAppeal from the United States District Courtfor the District of Columbia(No. 1:22-cv-03029)Daniel Epsteinargued the cause for appellant. With him on the briefs were Reed D. Rubinsteinand Michael Ding.Jay Alan Sekulow, Jordan Sekulow, Andrew J. Ekonomou, Benjamin P. Sisney, and Nathan Moelkerwere on the brief for amicus curiaethe American Center for Law and Justice in support of appellant.Jeremiah L. Morgan and William J. Olson were on the brief for amicus curiae Citizens United in support of appellant.Jeffrey E. Sandberg, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were...

---

KICKASS 4 26

IF YOU GO BACK TO THE ORIGINAL BUG YOU ALSO SEE THE HONEST ELECTIONS PROJECT.

3:27

3 minutes, 27 seconds

THIS WAS USED TO FILE AN AMICUS BRIEF IN THE SUPREME COURT WITHOUT DISCLOSING ITS AFFILIATION WITH THE JUDICIAL CRISIS NETWORK, WHICH SPENT

3:35

3 minutes, 35 seconds

MILLIONS OF DOLLARS TO GET THREE LEONARD LEO-SELECTED SUPREME COURT JUSTICES APPOINTED TO THE COURT.

an 2 24

four House Republicans have sent a letter to Department of Justice special counsel Jack Smith challenging his standing to prosecute former President Donald Trump.

The letter — which was co-signed by Reps. Eric Burlison (R- Missouri), Michael Cloud (R-Texas), Marjorie Taylor Greene (R-Georgia) and Anna Paulina Luna (R-Florida) — asserts that there has not been appropriate congressional oversight of Smith's office or his investigation into Trump. The letter's signatories are asking Smith to provide them with "all documents and communications concerning your authority" to empanel grand juries in the two federal court districts where he's prosecuting the former president, as well as Smith's authority to have those grand juries return indictments, and his authority to offer immunity in exchange for testimony as well as documents pertaining to DOJ oversight.

"We respectfully request a response from you on or before 1pm [on] February 9, 2024," Burlison, Cloud, Greene and Luna wrote.

:{:{Conservatives have argued that because Smith was not formally appointed by the president of the United States and confirmed by the US Senate, he is merely a private citizen and does not have the Constitutional authority to prosecute Trump.}:

Ed Meese, who was attorney general under President Ronald Reagan, filed an amicus curiae ("friend of the court") brief before the DC Circuit Court of Appeals last month arguing that Smith's appointment was improper and that his prosecution of Trump is therefore null and void.:}:

"Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor," Meese's brief read. "Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyoncé."

Meese further argued that the statutory authority Attorney General Merrick Garland claimed gave him the power to appoint Smith as special counsel did not authorize "the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel," adding that "there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel."

However, the DC Circuit is unlikely to take that argument seriously, as there have been three special counsel appointments not confirmed by the US Senate. In 1999, then-Attorney General Janet Reno appointed John Danforth as special counsel to investigate the siege of cult leader David Koresh's compound in Waco, Texas. Then in 2003, then-Deputy Attorney General James Comey — following the recusal of Attorney General John Ashcroft — appointed Patrick Fitzgerald as special counsel to oversee the Valerie Plame affair. And in 2017, Robert Mueller was appointed special counsel by then-Deputy Attorney General Rod Rosenstein to look into alleged Russian interference in the 2016 presidential election after Attorney General Jeff Sessions recused himself.

---

west va v epa koch CTT

7 22 intercept

...Today’s Supreme Court decision marks perhaps the biggest payoff yet for Koch’s decades of plotting against environmental regulations — and the most devastating loss for everyone else. Three of the extremist judges who joined the decision — Gorsuch, Barrett, and Kavanaugh — wound up on the Supreme Court in large part because of Koch’s activism and contributions.

Americans for Prosperity, an astroturf political group founded by Charles Koch and his brother David, conducted extraordinary campaigns to put all three judges on the highest bench. To support Kavanaugh’s nomination, the group reached out to more than 1.2 million Americans through mail, phone calls, and knocking on doors, according to a flyer released by the organization. The group also pushed hard for Barrett, whose father worked for Shell and the American Petroleum Institute, a powerful trade group for the oil and gas industry. And it campaigned for https://americansforprosperity.org/afp-key-vote-yes-on-the-nomination-of-judge-neil-gorsuch-for-associate-justice-of-the-u-s-supreme-court/ disastrously — over the EPA under President Ronald Reagan. Charles Koch is also closely connected to Leonard Leo, co-chair of the Federalist Society, a conservative organization Koch has supported directly and through his family foundation.

The case itself can also be tied directly to Koch. The challengers are27 Republican attorneys general, who were supported by the Koch-funded Republican Attorneys General Association. At least four Koch-funded entities have filed amicus briefs in the case: the Cato Institute, which was co-founded by Charles Koch; the Competitive Enterprise Institute; the ; and Americans for Prosperity. Another foundation that filed an amicus brief, the Landmark Legal Foundation, denied receiving Koch funding, though Jane Mayer reports in her book “Dark Money” that Koch helped subsidize it....

DN 6 30 sackett v epa alito wife property lease;singer HEAD of manhat amicus; website gay marriage fake doc adf; missouri loan no $ 15 yrs, no intention, no knowledge used by AG for standing; KBJ scathing dissent let them eat cake obliviousness; change law no change life

https://www.alternet.org/otomayor-military-academies-arbitrariness-ruling/

===

an 9 22

Rep. Alexandria Ocasio-Cortez of New York City hasn’t been shy about calling for U.S. Supreme Court Justice Clarence Thomas to either be impeached or resign, arguing that the activism of his wife — far-right MAGA Republican and conspiracy theorist Ginni Thomas — presents a major conflict of interest. After the 2020 presidential election, Ginni Thomas was heavily involved in MAGA efforts to get the election results overturned and promoted the Big Lie in a series of text exchanges with Mark Meadows (who served as White House chief of staff under President Donald Trump). Justice Thomas, AOC has argued, has no business serving on the High Court in light of his wife’s unwillingness to accept democratic election results.

Another conflict of interest for Justice Thomas, according to abortion rights activists, is his wife’s extensive involvement in the anti-abortion movement. That involvement goes way beyond attending or helping to organize anti-abortion rallies. In an article published by The Guardian on September 9, journalist Ed Pilkington reports that Ginni Thomas was extensively involved in lobbying efforts to get the High Court to overturn Roe v. Wade.

On June 24, those lobbyists got their way when the High Court’s radical-right majority overturned Roe v. Wade with its ruling in Dobbs v. Jackson Women’s Health Organization. Clarence Thomas was one of the Republican-appointed justices who voted to overturn Roe, along with Samuel Alito and all three of Trump’s High Court appointees: Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett.

“Ginni Thomas, the self-styled ‘culture warrior’ and extreme right-wing activist, has links to more than half of the anti-abortion groups and individuals who lobbied her husband Clarence Thomas and his fellow U.S. Supreme Court justices ahead of their historic decision to eradicate a woman’s right to terminate a pregnancy,” Pilkington reports. “A new analysis of the written legal arguments, or ‘amicus briefs,’ used to lobby the justices as they deliberated over abortion underlines the extent to which Clarence Thomas’ wife was intertwined with this vast pressure campaign. The survey found that 51 percent of the parties who filed amicus briefs calling for an end to a federal abortion right have political connections to Ginni Thomas, raising concerns about a possible conflict of interest at the highest levels of the U.S. judiciary.”

Pilkington notes that Dobbs v. Jackson Women’s Health Organization “attracted an almost unprecedented 130 amicus briefs from both sides of the legal argument.” The analysis of those amicus briefs was carried out by the group Advance Democracy, Inc. and shared with The Guardian.

“Of those, 74 were filed in favor of overturning the right to an abortion, enshrined in 1973 in Roe v Wade,” according to Pilkington. “In turn, the new analysis shows that 38 of the 74 anti-abortion amicus briefs — 51 percent — were produced by entities and individuals with links to Ginni Thomas. They included right-wing groups, religious interests, prominent conservative individuals and lawyers…. The revelation that there is substantial overlap between Ginni Thomas and the anti-abortion lobbying effort focused on her husband and the other conservative justices will intensify the growing sense of unease surrounding her hyper-energetic conservative activism.”

Pilkington continues, “In recent years, she has placed herself in the thick of some of the most bitterly contested political controversies that have come — or could come — before the Court…. Thomas has been dubbed a ‘radical insurrectionist’ for her role in backing Trump’s attempt to subvert the 2020 presidential election. Yet her husband has refused to recuse himself from cases relating to the insurrection, including one in January in which he became the only justice to dissent in an 8-1 decision over allowing hundreds of documents held by the National Archives to be reviewed by the House committee investigating the January 6 storming of the U.S. Capitol.”

Melissa Murray, a New York law University law professor and co-host of the Supreme Court-related podcast “Strict Scrutiny,” believes that there is a major conflict of interest where the Thomases are concerned.

Murray told The Guardian, “The Thomases are normalizing the prospect of too close an association between the Supreme Court and those who litigate before it. This isn’t the first time that Mrs. Thomas has had dealings with those who come before the Court and seek her husband’s vote.”

When the Dobbs ruling was handed down, Justice Thomas urged the High Court to “reconsider” rulings that offered protections for contraception and gay rights — and the cases he specifically mentioned were 1965’s Griswold v. Connecticut, 2003’s Lawrence v. Texas and 2015’s Obergefell v. Hodges.

“Ginni Thomas’ ties with groups responsible for the whirlwind lobbying campaign over abortion could have serious ramifications in future cases that come before the Court,” Pilkington notes. “Clarence Thomas made it clear, in his concurring opinion in Dobbs, that he intends to use exactly the same arguments that were deployed in overthrowing Roe v. Wade to challenge the constitutional right to same-sex marriage, same-sex relations and contraception. Many of the interests to which Ginni Thomas was connected who filed anti-abortion amicus briefs have a parallel track record of anti-LGBT agitating.”

ref

https://yyy.theguardian.com/us-news/2022/sep/09/ginni-thomas-abortion-roe-v-wade-supreme-court

no lnx

Analysis of ‘amicus briefs’ shows how closely Clarence Thomas’s wife was entwined with rightwing effort to reverse 1973 ruling

Ed Pilkington in New York

@edpilkington

Fri 9 Sep 2022

Ginni Thomas, the self-styled “culture warrior” and extreme rightwing activist, has links to more than half of the anti-abortion groups and individuals who lobbied her husband Clarence Thomas and his fellow US supreme court justices ahead of their historic decision to eradicate a woman’s right to terminate a pregnancy.

A new analysis of the written legal arguments, or “amicus briefs”, used to lobby the justices as they deliberated over abortion underlines the extent to which Clarence Thomas’s wife was intertwined with this vast pressure campaign.

The survey found that 51% of the parties who filed amicus briefs calling for an end to a federal abortion right have political connections to Ginni Thomas, raising concerns about a possible conflict of interest at the highest levels of the US judiciary.

[The abortion rights movement can learn from the Aids activism of the 80s and 90s

Moira Donegan

The six-to-three rightwing majority of the court, supercharged by Donald Trump’s three appointed conservative justices, in June overthrew the constitutional right to an abortion. Clarence Thomas was among the six who voted for the hotly contested ruling, Dobbs v Jackson.

The ruling was one of the most consequential in the supreme court’s 233-year history. It has triggered the lightning spread of partial or total abortion bans across Republican-controlled states, affecting almost one in three women aged 15 to 44.

The Dobbs case, brought by Mississippi which sought to ban abortions after 15 weeks of pregnancy, attracted an almost unprecedented 130 amicus briefs from both sides of the legal argument. Of those, 74 were filed in favour of overturning the right to an abortion, enshrined in 1973 in Roe v Wade.

In turn, the new analysis shows that 38 of the 74 anti-abortion amicus briefs – 51% – were produced by entities and individuals with links to Ginni Thomas. They included rightwing groups, religious interests, prominent conservative individuals and lawyers.

“The Thomases are normalizing the prospect of too close an association between the supreme court and those who litigate before it,” said Melissa Murray, a law professor at New York University and co-host of the Strict Scrutiny podcast. “This isn’t the first time that Mrs Thomas has had dealings with those who come before the court and seek her husband’s vote.”

The revelation that there is substantial overlap between Ginni Thomas and the anti-abortion lobbying effort focused on her husband and the other conservative justices will intensify the growing sense of unease surrounding her hyper-energetic conservative activism. In recent years she has placed herself in the thick of some of the most bitterly contested political controversies that have come – or could come – before the court.

Earlier this year, the New Yorker published an investigation into the mounting evidence of possible conflicts of interest under the headline: ‘Is Ginni Thomas a threat to the supreme court?’

Thomas has been dubbed a “radical insurrectionist” for her role in backing Trump’s attempt to subvert the 2020 presidential election. Yet her husband has refused to recuse himself from cases relating to the insurrection, including one in January in which he became the only justice to dissent in an 8-1 decision over allowing hundreds of documents held by the National Archives to be reviewed by the House committee investigating the January 6 storming of the US Capitol.

Five weeks after that decision, it was revealed that leading up to January 6 Ginni Thomas exchanged 29 text messages with Trump’s White House chief of staff, Mark Meadows, urging him to block Joe Biden’s victory. It is very possible that those text messages were among the documents that the committee had been seeking, with Clarence Thomas the sole justice opposing disclosure.

The January 6 committee has said it wants to interview Ginni Thomas over her anti-democratic antics around the 2020 election. Last week the Washington Post revealed that she applied pressure on lawmakers in Wisconsin to block Biden’s win, having previously done the same in Arizona.

The analysis of the amicus briefs was carried out by Advance Democracy Inc, a non-partisan organization specializing in public-interest research and investigations. It shared its findings with the Guardian.

They show an intricate web of connections between many of the most influential groups and figures on the conservative hard right, with Ginni Thomas at the centre of it. Several of the links run through her consultancy, Liberty Consulting, which she set up in 2010 and which brags that it can “give access to any door in Washington”.

Another major route is through the Council for National Policy (CNP), a secretive Christian conservative networking group that the New York Times described as a “little-known club of a few hundred of the most powerful conservatives in the country”. The binding mission of the members is “limited government, strong national defense, and support for traditional western values”.

Ginni Thomas is listed as a board director of the lobbying arm of the group, CNP Action, in a 2020 tax filing obtained by the investigative watchdog Documented. In a speech to a CNP event in 2019 she described her role within the conservative movement as that of “a convenor – I find the talent and I put them in the room and have them talk to one another”.

A leaked CNP directory from this year lists as Thomas’s fellow members several prominent conservatives involved in filing amicus briefs to the supreme court in the abortion case. They include Marjorie Dannenfelser, president of the anti-abortion group Susan B Anthony List, who led a discussion at a CNP conference in February titled: After Roe, Then What?

Leonard Leo, the founder of the rightwing Federalist Society, with which Clarence Thomas is intimately associated, sits on the board of the Ethics and Public Policy Center, which filed an amicus brief. Leo was arguably the key strategist behind Trump’s packing of the supreme court to obtain its current supermajority; he shares CNP membership with Ginni Thomas and is a close collaborator of hers.

Other CNP members who have been involved in filing amicus briefs in the abortion caseinclude: Jay Sekulow, Trump’s former lawyer at his first impeachment trial, who is chief counsel for the American Center for Law & Justice; David Nammo of the Christian Legal Society; Tony Perkins, president of the anti-abortion Family Research Council; Margaret Hartshorn, chair of Heartbeat International; and many more.

There are several other overlapping connections to the amicus briefs through separate networks such as Groundswell, a conservative advocacy group of which Ginni Thomas described herself as chairman in 2019. Groundswell was formed in 2013 to foment “a 30-front war seeking to fundamentally transform the nation”. John Eastman, the conservative lawyer who is heavily implicated in the effort to block certification of Biden’s presidential victory, filed an amicus brief in the abortion case on behalf of the Claremont Institute’s center for constitutional jurisprudence, of which he was founding director. Eastman acted as law clerk to Justice Thomas in 1996 and has been described by the New York Times as a “close friend” of Clarence and Ginni. Thomas herself has denied any conflict of interest between her activism and her husband’s jurisprudence. She told the Washington Free Beacon earlier this year: “We have our own separate careers, and our own ideas and opinions too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

“The supreme court is unlike any other branch because it only has its legitimacy to make the public adhere to what it does. Lose that and the court loses the kind of institutional pull that makes the law come together and bind us,” Murray said. Unlike all other federal judges in lower appeals and district courts who are obliged to recuse themselves in cases of potential conflict of interest involving their spouses, the nine justices of the supreme court are entirely unfettered by any code of judicial ethics. They in effect police themselves.

Every year Clarence Thomas has to file a financial disclosure, but the detail given is minimal. He lists under his spouse’s income “Liberty Consulting, Inc – salary and benefits”, but does not reveal her clients or her board positions on groups such as CNP or Groundswell.

The lack of controls have led to a rising chorus calling for reform. “At the very least the justices need to adopt a formal code of conduct that they commit to following,” said Gabe Roth, executive director of the non-partisan group Fix the Court. “That code would take on board potential conflicts of interests involving their spouses.”

Ginni Thomas’s ties with groups responsible for the whirlwind lobbying campaign over abortion could have serious ramifications in future cases that come before the court. Clarence Thomas made it clear in his concurring opinion in Dobbs that he intends to use exactly the same arguments that were deployed in overthrowing Roe v Wade to challenge the constitutional right to same-sex marriage, same-sex relations and contraception.

Many of the interests to which Ginni Thomas was connected who filed anti-abortion amicus briefs have a parallel track record of anti-LGBT agitating. The founder of CNP, Tim LaHaye, was an evangelical Christian minister and a virulent homophobe.

His 1978 book The Unhappy Gays depicted gay people as “militant, organized” and “vile”. “Homosexuality is a blight on humanity,” he wrote. “Many parents would prefer the death of their child to his adopting the unhappy wretchedness of homosexuality.”

The end of the right to abortion in the United States will have devastating consequences around the world. A half century ago, the Supreme Court's landmark Roe v Wade decision inspired a new era of reproductive freedom in dozens of countries. The court's reversal will empower anti-abortion voices everywhere, threatening reproductive freedom and the right to control one’s destiny. [end]

The Guardian views reproductive choice as a fundamental human right and will pursue this story even after it recedes from headlines, with a focus on the people most impacted by restrictions. But we need your help to do this work.Unlike many others, the Guardian has no shareholders, no billionaire owner. Just the determination and passion to deliver high-impact global reporting, always free from commercial or political influence. ...

some lnx some GUK bad ish code]

...the six-to-three rightwing majority of the court, supercharged by Donald Trump’s three appointed conservative justices, in June overthrew the constitutional right to an abortion. Clarence Thomas was among the six who https://www.theguardian.com/world/2022/jun/24/roe-v-wade-overturned-abortion-summary-supreme-court , Dobbs v Jackson....The Dobbs case, brought by Mississippi which sought to ban abortions after 15 weeks of pregnancy, attracted an almost unprecedented 130 amicus briefs from both sides of the legal argument. Of those, 74 were filed in favour of overturning the right to an abortion, enshrined in 1973 in Roe v Wade. ...The revelation that there is substantial overlap between Ginni Thomas and the anti-abortion lobbying effort focused on her husband and the other conservative justices will intensify the growing sense of unease surrounding her hyper-energetic conservative activism. In recent years she has placed herself in the thick of some of the most bitterly contested political controversies that have come – or could come – before the court... Earlier this year, the New Yorker published an investigation into the mounting evidence of possible conflicts of interest under https://www.newyorker.com/magazine/2022/01/31/is-ginni-thomas-a-threat-to-the-supreme-court Thomas has been dubbed a https://twitter.com/NormOrnstein/status/1507130939381583877 ...radical insurrectionist” for her role in backing Trump’s attempt to subvert the 2020 presidential election. Yet her husband has refused to recuse himself from cases relating to the insurrection, including one in January in which he became the only justice to dissent in an 8-1 decision over allowing hundreds of documents held by the National Archives to be reviewed by the House committee investigating the January 6 storming of the US Capitol.

more lnx

Leo, the founder of the rightwing Federalist Society, with which Clarence Thomas is intimately associated, sits on the board of the Ethics and Public Policy Center, which filed an amicus brief. Leo was arguably the key strategist behind Trump’s packing of the supreme court to obtain its current supermajority; he shares CNP membership with Ginni Thomas and is a close collaborator of hers.

Other CNP members who have been involved in filing amicus briefs in the abortion case include: Jay Sekulow, Trump’s former lawyer at his first impeachment trial, who is chief counsel for the American Center for Law & Justice; David Nammo of the Christian Legal Society; Tony Perkins, president of the anti-abortion Family Research Council; Margaret Hartshorn, chair of Heartbeat International; and many more.

There are several other overlapping connections to the amicus briefs through separate networks such as Groundswell, a conservative advocacy group of which Ginni Thomas described herself as chairman in 2019. Groundswell was formed in 2013 to foment “a 30-front war seeking to fundamentally transform the nation”. ...John Eastman, the conservative lawyer who is heavily implicated in the effort to block certification of Biden’s presidential victory, filed an amicus brief in the abortion case on behalf of the Claremont Institute’s center for constitutional jurisprudence, of which he was founding director. Eastman acted as law clerk to Justice Thomas in 1996 and has been described by the New York Times as a “close friend” of Clarence and Ginni.

Thomas herself has denied any conflict of interest between her activism and her husband’s jurisprudence. She told the Washington Free Beacon earlier this year: “We have our own separate careers, and our own ideas and opinions too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

Whether that is true is perhaps a moot point, given that the mere appearance of conflict of interest can in itself damage an institution’s reputation. Already, the supreme court is viewed unfavourably by 44% of the American people according to a Pew Research Center poll, with only 16% thinking they do an excellent or good job keeping their personal political views out of their decisions.<... “The supreme court is unlike any other branch because it only has its legitimacy to make the public adhere to what it does. Lose that and the court loses the kind of institutional pull that makes the law come together and bind us,” Murray said.

Unlike all other federal judges in lower appeals and district courts who are in cases of potential conflict of interest involving their spouses, the nine justices of the supreme court are entirely unfettered by any code of judicial ethics. They in effect police themselves.

A pro-choice protest outside the supreme court. Photograph: Anna Moneymaker/Getty Images

Leonard Leo, the founder of the rightwing Federalist Society, with which Clarence Thomas is intimately associated, sits on the board of the Ethics and Public Policy Center, which filed an amicus brief. Leo was arguably the key strategist behind Trump’s packing of the supreme court to obtain its current supermajority; he shares CNP membership with Ginni Thomas and is a close collaborator of hers.

John Eastman, the conservative lawyer who is heavily implicated in the effort to block certification of Biden’s presidential victory, filed an amicus brief in the abortion case on behalf of the Claremont Institute’s center for constitutional jurisprudence, of which he was founding director. Eastman acted as law clerk to Justice Thomas in 1996 and has been described by the New York Times as a “close friend” of Clarence and Ginni.

Unlike all other federal judges in lower appeals and district courts who are obliged to recuse themselves in cases of potential conflict of interest involving their spouses, the nine justices of the supreme court are entirely unfettered by any code of judicial ethics. They in effect police themselves.

the end of the right to abortion in the United States will have devastating consequences around the world. A half century ago, the Supreme Court's landmark Roe v Wade decision inspired a new era of reproductive freedom in dozens of countries. The court's reversal will empower anti-abortion voices everywhere, threatening reproductive freedom and the right to control one’s destiny.

an ah 8 22

https://www.alternet.org/2022/08/anonymous-dark-money-destructive-influemce/

when the U.S. Supreme Court handed down its controversial 5-4 ruling in Citizens United v. Federal Election Commission in 2009, critics of the decision — including dissenters on the High Court — predicted that elections in the United States would be inundated with a flood of dark money. In his dissent, the late Justice John Paul Stevens, a Gerald R. Ford nominee, stressed that the ruling “threatens to undermine the integrity of elected institutions across the Nation” and warned, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

Thirteen years later, critics of the Citizens United decision continued to argue that Republican Stephens was spot on in his dissent. Articles on the influence of dark money have appeared in major publications, and New York Times reporters Kenneth P. Vogel and Shane Goldmacher, on August 22, reported that the largest political donation in U.S. history had come from :{“electronics manufacturing mogul”:(style="background-color:#ffffff;"):}::{ Barre Seid:(style="background-color:#ffff66;"):}: — who gave $1.6 billion to a group led by GOP activist and Federalist Society Co-Chairman Leonard A. Leo.

Journalists David Sirota and Joel Warner examine the influence of dark money in an op-ed published byThe Guardian GUKon August 29, citing Seid’s secretive donation as an especially blatant example.

“This week, the Lever, ProPublica and the New York Times discovered the largest known political advocacy donation in American history,” Sirota and Warner explain. “We exposed a reclusive billionaire’s secret transfer of $1.6bn to a political group controlled by the Republican operative Leonard Leo, who spearheaded the construction of a conservative Supreme Court supermajority to end abortion, block government regulations, stymie the fight against climate change and limit voting rights. This anonymous donation — which flowed to a tax-exempt trust that was never disclosed in any public record or database — was probably completely legal.”

Sirota and Warner continue, “Whether you support or abhor Leo’s crusade, we should be able to agree on one larger non-partisan principle: such enormous sums of money should not be able to influence elections, lawmakers, judicial nominations and public policy in secret. And we should not have to rely on a rare leak to learn basic campaign finance facts that should be freely available to anyone. Unfortunately, thanks to our outdated laws, those facts are now hidden behind anonymity, shell companies and shadowy political groups. America is long overdue for an overhaul of its political disclosure laws — and news organizations in particular should be leading the charge for reform.”

According to Sirota and Warner, dark money’s negative influence on U.S. politics is only “getting worse.”

“In 2020 alone, more than $1bn worth of dark money flooded around weak disclosure rules and into America’s elections, financing Super PACs, ad blitzes, mailers and door-knocking campaigns,” Sirota and Warner warn. “As millions of votes were swayed, reporters and the public had no knowledge of the money sources, or what policies they were buying. Heading into the 2022 election, the situation is getting worse. The two parties’ major Senate and House Super PACs are all being funded by anonymous dark money groups that are not required to disclose their donors.”

Sirota and Warner, however, do offer some “good news,” pointing out that the Disclose Act — a bill sponsored by Democratic Sen. Sheldon Whitehouse of Rhode Island — would “force dark money groups to disclose any of their donors who give more than $10,000, require shell companies spending money on elections to disclose their owners, and mandate that election ads list their sponsors’ major contributors.” And a separate Whitehouse-sponsored bill, they add, “would additionally require donor disclosure from shadowy groups lobbying the Supreme Court throughamicus briefs designed to tilt judicial rulings without letting the public know which billionaire or CEO’s thumb is on the scale.”

“In the landmark Citizens United ruling that unleashed the modern era of big money politics,” Sirota and Warner write, “the majority noted that while it was unwilling to permit political spending restrictions,it still held that ‘government may regulate corporate political speech through disclaimer and disclosure requirements.’ Those requirements are so desperately needed now — for the free press to play its vital role, and for voters to make informed decisions when they go to the polls.”

https://yyy.theguardian.com/law/2022/jan/28/clarence-thomas-supreme-court-affirmative-action-case-ginni-thomas

GUK

Who has more influence on supreme court: Clarence Thomas or his activist wife?

Justice’s wife, Ginni Thomas, sits on the board of conservative group that backs lawsuit seeking to end affirmative action, raising concerns it could present potential conflict of interest

Ed Pilkington

@edpilkington

Fri28 Jan 2022

Clarence Thomas, the hardline conservative supreme court justice, is facing calls for his recusal in the case over race-based affirmative action in college admissions that the court agreed to hear this week.

US supreme court will hear challenge to affirmative action in college admission

The case, which is being brought against Harvard and the University of North Carolina, is the latest potential conflict of interest involving Thomas and his wife Virginia Thomas. Ginni, as she is known, is a prominent rightwing activist who speaks out on a raft of issues that frequently come before the nation’s highest court.

A one-person conservative powerhouse, she set up her own lobbying company Liberty Consulting in 2010. By her own description, she has “battled for conservative principles in Washington” for over 35 years.

The challenge to the two universities’ race-conscious admissions policies is being brought by Students for Fair Admissions (SFFA). Its leader Edward Blum has been a relentless opponent of affirmative action and voting rights laws.

His argument that race-based affirmative action is a quota system that discriminates against Asian students is framed with the supreme court’s newly emboldened rightwing majority in mind. A central player in that new six-justice conservative supermajority is Clarence Thomas, who is the longest-serving of the justices and at 73 will be the oldest once Stephen Breyer retires.

Justice Thomas’s influence has soared in recent months with the rightward shift of the court following Donald Trump’s three nominations, to the extent that some pundits now dub him the unofficial chief justice of the court.

SFFA’s lawsuit seeking to strike down affirmative action has received the enthusiastic backing of the conservative National Association of Scholars. It filed an amicus briefin support of the suit, accusing Harvard admissions officials of being prejudiced against Asian students and stereotyping them as “uninteresting, uncreative and one-dimensional”.

Ginni Thomas sits on the advisory board of the National Association of Scholars. Observers are concerned that her position with a group that has intervened in the affirmative action case could present appearances of conflict of interest.

Virginia ‘Ginni’ Thomas, wife of the supreme court Justice Clarence Thomas, watches Amy Coney Barrett take the constitutional oath in the White House on 26 October 2020. Photograph: Patrick Semansky/AP

Noah Bookbinder, president of the government ethics watchdog Crew,told the Guardian that while supreme court regulations may not legally require Thomas to recuse himself, there were serious questions to answer.

“Ginni Thomas is an advisory board member of an organization that has taken a very specific position on a case in front of her husband. That will make it hard for the public to be confident that he’s going to be totally unbiased.”

Bookbinder said that in the circumstances “the better course of action would be for him to recuse or for her to cease her involvement in that organization.”

The potential appearance of a conflict of interest over the Harvard case was noted in a recent investigation by the New Yorker reporter Jane Mayer that takes a deep dive into the overlapping interests of the couple. The article chronicles in devastating detail the many instances where Ginni’s political activism appears to present problems for the image and integrity of the court.

“Ginni Thomas has held so many leadership or advisory positions at conservative pressure groups that it’s hard to keep track of them,” Mayer concluded. “Many, if not all, of these groups have been involved in cases that have come before her husband.”

In the most troubling recent instance, Ginni Thomas lent her voice to Trump’s big lie that the 2020 presidential election was stolen from him. She was vocal on the subject in the buildup to the violent insurrection at the US Capitol on January 6 last year that led to the deaths of five people and left more than 100 police officers injured.

On the morning of the January 6 itself, Mark Joseph Stern of Slate reported, Thomas posted on her Facebook page words of encouragement for the “Stop the Steal” marchers in Washington. “LOVE MAGA people!!!!”, she said., “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”

Soon after the insurrection, Thomas was forced to apologise to her husband’s former supreme court law clerks for comments she made privately to them that appeared to lament Trump’s defeat in the 2020 election. The remarks were sent to a private email list called “Thomas Clerk World”.

In the emails, disclosed by the Washington Post, she wrote: “Many of us are hurting, after leaving it all on the field, to preserve the best of this country. I feel I have failed my parents who did their best and taught me to work to preserve liberties.”

An even more direct intervention in the politics surrounding Trump and the big lie was made last December when Thomas joined 62 other influential conservatives in signing an open letter to the leader of the Republicans in the House of Representatives, Kevin McCarthy. It urged him to expel the Congress members Liz Cheney and Adam Kinzinger from the Republican party.

Their sin, the letter writers opined, was to serve on the House committee investigating the January 6 insurrection. They described the committee as an “overtly partisan political persecution that brings disrespect to our country’s rule of law [and] legal harassment to private citizens who have done nothing wrong”.

Since the Capitol insurrection, the Department of Justice has arrested more than 725 defendants in relation to the storming of the building. Federal prosecutors have charged 225 with assaulting, resisting or impeding police officers, including over 75 charged with using a deadly or dangerous weapon or causing serious bodily harm to an officer.

Last week the supreme court rejected attempts by Trump to block the January 6 committee from acquiring his White House records from the time of the attack. There was only one dissent from the bench to that 8-to-1 decision: it came from Clarence Thomas.

“Ginni Thomas’s activities are unprecedented in supreme court history in terms of a spouse engaging in issues that are constantly before the court,” said Gabe Roth, executive director of Fix the Court, a non-partisan group which advocates supreme court reform. “The appearance of impropriety is in itself impropriety – all the supreme court has is the trust of the public, and once you chip away at that you are in trouble.”

Roth added that Thomas’s comments in the days before January 6 were clearly problematic given her husband’s vote on the Trump documents. “It’s possible that the January 6 committee has emails between Ginni Thomas and administration officials from that day or the days leading up to it given how vocal she was. That’s definitely a place where Justice Thomas should have recused himself.”

Should the rightwing majority around Thomas use its newfound muscle to ban affirmative action, as is widely predicted, it would mark the negation of more than 30 years of settled constitutional law on the matter. What lies ahead bears strong resemblance to Roe v Wade, the landmark 1973 ruling that made abortion legal which the court is probably poised to weaken or even overturn outright.

Mayer points out in the New Yorker that an amicus brief was filed in the supreme court case challenging Roe by Robert George who also sits on the advisory board of the National Association of Scholars alongside Ginni Thomas.

Roth told the Guardian that a simpler solution to the full recusal of Clarence Thomas from the affirmative action case might exist. That would be to remove the National Association of Scholars’ amicus brief.

“There is an easy way to deal with this perceived conflict of interest – strike the amicus brief,” he said.

It is established practice in all federal appeals courts, though not in the supreme court, that amicus briefs brought by anybody with a connection to a judge hearing a case are routinely thrown out.

The president of the National Association of Scholars, Peter Wood, told the Guardian that he knew of no conflict of interest relating to Thomas’s position on the advisory board. “Ms Thomas’s role is to provide advice to NAS in response to questions I put to her about NAS policy and initiatives. I have never discussed with her any NAS matter that was likely to come before the supreme court,” he said.

===

raw story

https://www.alternet.org/2022/03/clarence-thomas/

Supreme Court Justice Clarence Thomas' right leaning political views have been obvious for decades in his writings for the Court. A new report in the Daily Beast, however, spotlights just how intertwined his financial connections are to an ultra-conservative judicial activist.

When Thomas was looking to promote the release of his memoir last October he chose to hire a public relations firm, CRC Advisors, run by the former chief of the Federalist Society, Leonard Leo. Leo is a top fundraiser for right-wing judicial activist groups. The Daily Beast reports that "Leo has raised hundreds of millions of dollars over the three decades on behalf of right-wing dark money groups to influence the federal judiciary and Supreme Court. He advised and persuaded Republican presidents George W. Bush and Donald Trump in their appointments of Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts—and prepped Justice Thomas for his nomination hearings."

The report also says that Leo is the "hub" of dark money groups that stealthily fund and link up with parties who argue cases before the Supreme Court, something that Supreme watchers have dubbed an "amicus flotilla."

Leo’s affiliations with the court - and especially Thomas - are especially pronounced. He made the justice the godfather of one of his children and has hosted him on vacation at his New England retreat.

Paul Collins is a professor of political science at the University of Massachusetts at Amherst and author of several books about the high court. He says Thomas’ choice of Leo’s firm is “strange” and “unnecessary.”

“It signals that this world of the Federalist Society is even smaller than we thought,” Collins told The Daily Beast.

voter suppression, florida

hayes recs

Constellation of Anti-Voting Groups Threaten Democracy

By Marc Elias

August 18, 2022

https://www.democracydocket.com/news/a-constellation-of-anti-voting-groups-threaten-democracy/

republican leaders of the anti-voting movement recently held a “gourmet dinner” at an “undisclosed location” to discuss my voting rights litigation. The event was billed as the inaugural leadership dinner for a group called the Honest Elections Project. I was not invited to attend.

There is a constellation of well-funded, right-wing groups that use the legal and political system to make voting more difficult and free and fair elections less likely. They range from mere vote suppressors to full-on election deniers. Most oppose expanding voting rights and support strict voting laws. Many seek to gut the Voting Rights Act entirely; others want it interpreted so narrowly as to be ineffective. None of these organizations supported Congress’ efforts to enact new pro-voter legislation.

These right-wing groups work closely with the RNC and with state legislatures to advance anti-voting legislation.

The American Constitutional Rights Union, Foundation for Government Accountability, Judicial Watch, Lawyers Democracy Fund, Public Interest Legal Foundation (PILF) and Restoring Integrity and Trust in Elections are just a few of the groups fighting against voting rights in court. America First Legal Foundation, Election Integrity Network, Heritage Foundation and True the Vote also support anti-democracy legal efforts. The conservative American Legislative Exchange Council advances model anti-voting legislation for state legislatures.

We recently got a preview of how these groups will operationalize their legal efforts in court in the future. Earlier this year, a Florida federal judge struck down most of the state’s “Big Lie” voter suppression law. In doing so, the court found that Florida Republicans had intentionally discriminated against Black voters and had violated the constitutional rights of Floridians seeking to participate in the democratic process. On appeal, six national anti-voting groups filed separate “friend of the court” briefs opposing the lower court’s decision — in addition to the briefs by the state defendants and the Republican Party.

For many years, the Republican National Committee (RNC) was legally barred from participating in election monitoring or voter suppression efforts as a consequence of the GOP’s ugly history of targeting minority voters in the 1980s. When that bar was lifted in 2017, the RNC picked up where it had left off and ran so-called “election integrity” programs with state parties.

These anti-voting legal groups offer a path for Republicans to wield majority political power without majority support.

Now, in the post-Trump era, the RNC directly partners with voter suppression groups and efforts that two years ago would have been unthinkable. The party’s dismal court results following the 2020 election coupled with MAGA supporters’ distrust of the party establishment has left the GOP operating in the penumbra of the current stars of the election denier and voter suppression movement.

It’s not just what these groups do, but who runs them.

On PILF’s board of directors, for example, are Cleta Mitchell and John Eastman,both of whom served as lawyers for former President Donald Trump. Mitchell participated in the infamous telephone call during which Trump demanded that the Georgia Secretary of State Brad Raffensperger (R) find 11,000 votes and declare Trump the winner. Eastman, who has been in the news recently for having a search warrant executed against him, helped craft the January 2021 insurrection plan.

The Honest Elections Project — the host of the secret dinner — was formed in February 2020 and is connected to Federalist Society founder Leonard Leo.

The newest of these groups, Restoring Integrity and Trust in Elections, was co-founded by former U.S. Attorney General Bill Barr (R) and Karl Rove, who served as former senior advisor and deputy chief of staff to President George W. Bush. Casino billionaire Steve Wynn provides the organization’s financial backing as its finance chair.

This group is notably more competent and well-resourced than the legal buffoonery who led Trump’s post-election antics. Though I am no fan of Barr, he is unlikely to hire lawyers who claim Hugo Chávez rigged elections from the grave or threaten to release the mythological Kraken. With Rove on its board as well, Barr is almost certainly not going to hold press conferences in a landscaping parking lot.

Notably, the infrastructure on the right is eclipsing the organizations on the left.

Historically, most organizations and resources dedicated to protecting the right to vote were connected to the left. Today there are still many important civil rights and voting rights organizations that bring litigation to protect the right to vote. Their work is invaluable. But most of those groups have broader portfolios that extend beyond voting rights and have insufficient resources to meet their growing needs.

What is notable about the right wing’s approach is the scope and interconnected nature of their legal efforts to undermine voting rights and free and fair elections.

Right-wing legal groups work in tandem with Republican legislatures dominated by election deniers. These organizations can help generate the most effective voter suppression policies that Republicans turn into laws. When those laws are challenged in court, the conservative legal groups then help defend them.

This brings me back to the “gourmet dinner” at an “undisclosed location” that I was not invited to attend. The right wing holds these events and funds these groups because they know that they cannot win fair elections. These anti-voting legal groups offer a path for Republicans to wield majority political power without majority support. They know that they lost in 2020. They are embarrassed that Trump was routed in post-election litigation. Some are upset that his coup failed on Jan. 6.

They set up new groups, hold secret dinners and create new voter suppression laws hoping that we will give up. I’m not sure what gave them that impression. After Trump was defeated in 2020, his team fought dozens of times in court — and lost. We didn’t give up then, and we certainly aren’t giving up now.

NEXT UP

Conservatives Have Been Packing the Courts for Years

We deserve a forward-thinking judiciary filled with movement lawyers who want to see progress for our nation.

ref

florida Voter Suppression Bill (LWV)

League of Women Voters of Florida v. Lee

Filed: May 5, 2021

Lawsuit brought by the League of Women Voters of Florida, Black Voters Matters Fund, Florida Alliance for Retired Americans and individual voters against all 67 Florida counties challenging voter suppression law Senate Bill 90. The case claims that S.B. 90’s drop box restrictions, mail-in ballot repeat request requirement, volunteer assistance ban, deceptive registration warning and food and water ban violate the First and 14th Amendments. The Republican National Committee (RNC) and National Republican Senatorial Committee (NRSC) intervened in the case. Four cases challenging S.B. 90 were consolidated for discovery and trial, with this case named as the “parent case.”

A two-week trial began on Monday, Jan. 31. After the trial, the judge struck down multiple provisions of S.B. 90: the drop box restrictions, line-warming ban and warning requirements for third party voter registration organizations. Florida is also placed under preclearance for the next 10 years and must obtain approval from the court before passing any new laws related to drop boxes, line-warming and voter registration organization activities.

The defendants appealed this decision to the 11th U.S. Circuit Court of Appeals, which paused the decision of the district court while the appeal is litigated. This means that the previously-blocked provisions of S.B. 90 are in effect and Florida is no longer under preclearance requirements pending further action by the 11th Circuit. Oral argument is scheduled for Sept. 15, 2022.

Dated: January 31, 2022 Respectfully submitted:

/s/ Mohammad O. Jazil

Mohammad O. Jazil (FBN: 72556)

mjazil@holtzmanvogel.com

Gary V. Perko (FBN: 855898)

gperko@holtzmanvogel.com

Holtzman Vogel Baran Torchinsky &

Josefiak PLLC

119 S. Monroe St. Suite 500

/s/ George N. Meros, Jr.

Benjamin J. Gibson FBN 58661

bgibson@shutts.com

Daniel E. Nordby FBN 14588

dnordby@shutts.com

George N. Meros Jr. FBN 263321

gmeros@shutts.com

Frank A. Zacherl FBN 868094

Tallahassee, FL 32301

(850) 274-1690

(540) 341-8809 (fax)

Phillip M. Gordon (VA Bar: 96521)*

pgordon@holtzmanvogel.com

15405 John Marshall Hwy

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809 (fax)

BRADLEY R. MCVAY (FBN 79034)

General Counsel

Brad.McVay@dos.myflorida.com

ASHLEY E. DAVIS (FBN 48032)

Deputy General Counsel

Ashley.Davis@dos.myflorida.com

Florida Department of State

R.A. Gray Building Suite 100

500 South Bronough Street

Tallahassee, Florida 32399-0250

(850) 245-6536

(850) 245-6127 (fax)

*Admitted pro hac vice

Counsel for Secretary Laurel M. Lee

fzacherl@shutts.com

Amber Stoner Nunnally FBN 109281

anunnally@shutts.com

Tara R. Price FBN 98073

tprice@shutts.com

SHUTTS & BOWEN LLP

215 South Monroe Street, Ste. 804

Tallahassee, Florida 32301

Tel: (850) 241-1717

Tyler Green* Utah Bar No. 10660

tyler@consovoymccarthy.com

Cameron T. Norris* Tenn. Bar No. 33467

cam@consovoymccarthy.com

Steven C. Begakis*

steven@consovoymccarthy.com

Daniel Shapiro

daniel@consovoymccarthy.com

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

*Admitted pro hac vice

Counsel for Intervenor-Defendants

Republican National Committee and

National Rep

Last updated: August 17, 2022 2:43 pm EST

NEXT UP

Florida Voter Suppression Bill (NAACP LDF)

Lawsuit challenging Florida voter suppression law S.B. 90.

drilled 6 22

transcript

Amy: Today, another super wonky legal thing that I swear to God is fascinating. Amicus briefs. OrAmicus briefs. It's Latin, and I hear lawyers pronounce it both ways. If you know the correct pronunciation, please just share it with me! At any rate, an Amicus or Amicus is Latin for friend.

So these are also sometimes referred to as friend of the court briefs. And way back before the internet and before large accessible libraries, even judges and their clerks couldn't so easily look up other cases that were relevant to the case at hand. So lawyers or other experts would submit these briefs that would point out similarities between the cases they were hearing and previous cases. It evolved over the years to include expert briefs more generally, but in the last decade or so it has morphed into something else entirely, just a mountain of anonymously funded briefs, pushing particular agendas, especially since the passage of Citizens United in 2010, which enabled endless amounts of anonymous corporate funding.

There's just been an explosion. Now, as you might assume, the Supreme court does have disclosure rules about these things. Of course it does, but they're ridiculous! You only have to disclose funding if it went toward the actual hands-on manual production of the brief. So like if Charles Koch paid someone to type that brief, you have to disclose that. But if he funded an entire Amicus program at your think tank, you don't.

Just to give you a sense of how rapidly this is exploding right now amici filed 781 briefs in the 2014 Supreme court term. That was a more than 800 % increase from the 1950s and a 95% increase from 1995. And the number of filings has just continued to rise since then. In the court's 2019 term, amici filed 911 briefs. The 2020 term featured almost 940.[see a flood of judicial lobbying: amicus influence and funding

transparency]

Some high profile cases will even draw more than a hundred amicus briefs. And there's another disturbing trend: amici showing up at the certiori stage, or cert. That's the phase when the Supreme court is being petitioned to hear a case or reject it. Between 1982 and 2014, the percentage of petitions with at least one cert stage amicus more than doubled.

When I first started looking into this, it really didn't make sense because I thought is any judge really going to be surprised or swayed by a brief from the Cato Institute that says, we don't think you should regulate business? No, but here's the thing they're not swayed by the organization.

They're swayed by the attorney representing them. And any good amicus program worth it's dark money knows which lawyers will get which judges' attention at the cert stage. These connected lawyers can improve the chances of the court viewing the case as cert-worthy. At any stage seasoned members of the Supreme court bar add credibility to Amicus briefs. The late justice, Ruth Ginsburg actually talked about this in a 2008 interview. She said, "clerks often divide the Amicus briefs into three piles. Those that you can skip entirely. Those that should be skimmed. And those that should be read in full. If the attorneys submitting the Amicus brief has significant experience before the court, it would be more likely that their brief would be placed in a higher priority pile."

So it is actually an effective strategy. And more and more Supreme court justices are actually citing Amicus briefs in their rulings. From 2008 to 2013, the Supreme court cited amicus 606 times in 417 opinions. Between the 1994 and 2003 terms, the court's majority opinion referenced an Amicus brief only 38% of the time.

And in earlier terms like 1946 to 1955, it was less than 20% of the time. So it's gone from. 18% in the fifties to more than a hundred percent today. Another tactic folks will use with an Amicus briefs is to gather so many of them that it gives the justices the sense that there's some kind of consensus behind one side or the other.

Of course what all of this points to is the ability of people with deep pockets to tilt the courts in their favor. You would think that the Supreme court would just improve its disclosure requirements and be done with it. But for some reason, it hasn't done that. So in the meantime, Sheldon Whitehouse, the Senator from the great state of Rhode Island has proposed legislation that would force the issue.

He's here today to walk us through that legislation and why the Supreme court resists transparency, and how this whole Amicus thing is really messing with democracy. That's coming up after this quick break,

Senator Whitehouse: You press on the Supreme court to take action. And their first response is to pretend that there's no problem. And then you keep pressing and, um, ultimately within the judiciary, somebody realizes, okay, there actually is a problem. And, um, they'd begin to do some work on it. I don't know whether that's quietly blessed by the Supreme court or despite the Supreme court, but it's happened twice.

It happened first on amicus disclosure where the Supreme court said nothing to see here, not a problem, go away, but then the judicial conference said, okay, this is actually a really serious question. And they set up a special committee to look into it. And judge Mollette, um, as a part of that discussion in the public, uh, meeting, I guess said, Hey, we really got to know who the power is behind the throne on these Amicus briefs.

And she's obviously a respected DC circuit court of appeals judge. So, um, despite the Supreme court's indifference that has been taken up within the federal judiciary. And then recently the, um, peculiar failure of the court to disclose, um, gifts in the form of so-called personal hospitality, which as read by the Supreme court does not require that you even know the person who's giving you personal hospitality, not exactly the customary definition of the word personal.

But again, I wrote a letter asking for an explanation to all the different circuit courts of appeal and after ignoring it for quite a long time on the Eve of our hearing, uh, the circuit court. Sent in a joint response. I think again, through the judicial conference saying, okay, you're right, this is serious.

And we're going to have a group of people look at it once again. I don't know if that is despite the Supreme court or because they got a quiet signal from the Supreme court saying you better, you better look into this. Whitehouse isn't going away. Now that's twice that we've been through the same routine with them, which is they pretend that everything is fine. And it's only when you persist that somebody then acknowledges no, it is not fine. It is really wrong. And now we have these ongoing reviews, but it would be far better if the court from the get go took this seriously and took it up, you know, of its own volition. And didn't put us through all these delays and prevarications.

Amy: Do you think there's a sense that the threat of Congress legislating this versus them setting their own rules kind of drives that along as well? Like makes them take it more seriously?

Senator Whitehouse: Lord knows what, what the reason is for them to be so obtuse about what seemed to be unbelievably obvious ethics and conflicts problems. But I do think that knowing that Congress isn't going away has created some faint with, of accountability, at least in the judicial conference, if not in the Supreme.

It seems to me and please correct me if I'm wrong, but it seems to me like in a lot of these cases, the justices themselves probably do have some inkling of who's funding what, but this would provide more transparency for the public. Is that, is that accurate or do you think that judges themselves are often in the dark too?

To the extent that Supreme Court justices are in the dark about who is behind some of these, that is a case of willful blindness. Because they often, they often go and sit with these groups and with their funders at Federalist society dinner. When all the chums come together. So if, if, if you can't figure that out, as you're sitting at the Federalist society gala at the table with front group organizations and those who fund them, then you have a problem of perspicacity unbecoming of a judge.

The problem is if everybody knew, right then the story would get far worse for the court. Because what we have right now is these little flotillas of right-wing amici show up, they ask the court to do X. The court almost invariably does X or at least some part of X, and there's a stunning win rate.

And if it were public who was behind those briefs, it would make the problem of the win rate look even worse. Right. It would cross reference likely with funders of republican senators who participated in packing the court with these right wing operative judges. And it would trace back to entities funding, the selection of these very justices.

Amy: Right.

Senator Whitehouse: They know enough to know that this is a world in which they don't like, they don't want the information to get out there because of their own problem.

Amy: Right, right. I read your Yale law journal article again this morning. And I know you noted a few different groups that show up a lot. Are there any particular attorneys who, are kind of like popular picks of these groups To be counsel on these briefs?

Senator Whitehouse: Yes, there are. And I just don't have them top of mind, but there are some pretty regular frequent flyers in the legal regime around this, the most obvious one who comes to mind right now in the wake of this wretched Cruz versus federal election commission decision is Don McGahn.

Amy: Right.

Senator Whitehouse: Don McGahn who picked the last three judges or was told who to pick by the Federalist Society, White House counsel during their selection. Let's put it that way. And Mitch McConnell, who orchestrated their confirmation through extraordinary obstacles, like for instance, faking an FBI background investigation. Faking an FBI supplemental background investigation for Kavanaugh. They're on the same brief telling the court what to do, and gee, big surprise the court does as instructed.

But I mean, if you want it, if you want to look at it like quick payback loop, FEC is like the perfect. That case in general is pretty stunning on multiple levels, but also totally predictable because the Federalist society justices are absolutely determined to expand the role of dark money for very obvious, but also very unfortunate political reasons.

Amy: I'm assuming that there are various dark money funded efforts against these disclosures. Have you come up against any, I don't know, obvious kind of, um, dark money funded opposition to improving disclosure and transparency?

Senator Whitehouse: Yes. I mean, there's a whole, Right-wing media operation to try to discredit it right. And to point out that it's, hypocritical of Democrats to play by the rules. And at the same time, want to clean up the rules. That's not an actual hypocrisy, but they frame it as one as part of their narrative. So you certainly see that in action.

And of course, there's this mad rush for the court to build a constitutional right to dark money. We'll get ahead of our legislation requiring disclosure of dark money. And if you want to go to the case in which they did that, I mean, it's just a beauty of a case calledAmericans for prosperity foundation versus Bonta,at the end of the day. We went through a number of respondents as the officials changed in California, but Americans for prosperity foundation, which is the5 0 1 C3, three twin to the Koch brothers' 5 0 1 C4 battleship Americans for prosperity,with massive overlap between the two: same address, overlapping boards, same staff.

You could pierce the corporate veil between the two with a banana, and they pick Americans for prosperity foundation as the petitioner to try to get this dark money constitutional right. To have a foundation. And when they do that, 50, at least 50 it's actually more, but it gets harder and harder to prove as you got into these small groups with no records, but at least 50 dark money, amici showed up at the certiorari stage.

And the cert stage to push the Supreme court to take up this case. And by the way, it lurked for a very long, strange period of time at the Supreme court. And they only took it up oncethey had judge Barrett giving them six and they only took it up literally two days after the attack on the Capitol, when everybody in America was looking elsewhere.

Wow. January 8th, they took the case up. So they've got the case of the twin of the Koch brothers, political battleship supported by 50 dark money front groups that they take onto their docket in the shadow of the attack, on the Capitol. And sure enough, they created a constitutional right to dark money for this group.

Amy: Right. Right. I've been looking at this with respect to the, um, the climate cases, because the very specific argument they're making about political speech in those cases is, um, I dunno, it, it keeps jumping out to me as like a broadening of this stuff. And I think they're going to try to get it to the Supreme court and blur the line between fraud and lying.

Senator Whitehouse: Absolutely. Absolutely. I think if you look at the tobacco fraud case with the department of justice, one, it makes an extremely good template for a climate fraud case. Against the fossil fuel industry, the Supreme court never took it up, but DOJ won big and just devastating decision by the DC district court, which was powerfully upheld in a unanimous decision by the DC circuit court of appeals. And the Supreme court declined to review it. So that's floating out there as a template and a way to end corporate fraud, but just, you wait for these guys to say that, oh, well, when it's a petition in government, right, exactly then there's special protection here. And the government of all people it was in the worst possible position to police fraud against itself because they treat government as an interested party rather than as the popular summation of the public will. Right. So, yeah, you could see that you could see that coming just as clearly as you could see theAFPF case coming.

Amy: Yeah. Thank you so much for your time and I'll keep you guys posted

Senator Whitehouse: Keep on this, there's lots of good material and we haven't been getting anywhere near enough attention. So thank you.

ref

https://www.yalelawjournal.org/pdf/F7.WhitehouseFinalDraftWeb_v4zwakx5.pdf

141

TH E Y AL E L A W J O U R N AL F O R U M

O C T O B E R 2 4 , 2 0 2 1

A Flood of Judicial Lobbying: Amicus Influence and

Funding Transparency

S h e l d o n W h i t e h o u s e

United States Senator

abstract. This Essay explores how amicus briefs became a tool for coordinated judicial lob-

bying by dark-money interests. I show how current funding-disclosure rules for amici fail to pro-

vide genuine transparency—undermining fairness—and discuss reforms that could improve the

judiciary’s amicus-disclosure regime and restore faith in the courts.

introduction

Over the past several years, the prevalence of anonymously funded amicus

curiae briefs at the Supreme Court has expanded. Supreme Court rules purport

to require disclosure of amicus funding to prevent anonymously funded briefs.1

But in practice, these disclosure statements rarely provide any information.2

Meanwhile, investigations by the media and watchdog organizations have re-

vealed a network of groups that receive common amicus funding and often have

ties to the parties in interest. These groups regularly file briefs before the Court

with no disclosure of their common funding or connections to the parties. This

practice of judicial lobbying through amicus influence poses ethical issues rep-

resentative of today’s political climate, in which dark money abounds, compro-

mising our courts

...

143

curiae brief and its expansion as a tool for coordinated judicial-lobbying cam-

paigns by entrenched interests. In Part II, I review the current disclosure rules

for amicus briefs and how they fail to compel genuine disclosure. In Part III, I

show how those failings of disclosure do real damage to judicial fairness and

weaken public faith in the courts and the foundations of our democracy. Finally,

in Part IV, I lay out pathways for potential reforms that could update our disclo-

sure regime and have a salutary effect across our legal system.

i. the evolution of the amicus

A. The Historical Role and Recent Prevalence of Amici

Amicus curiae briefs are briefs written by nonparties to a case for the purpose

of providing information, expertise, insight, or advocacy. Latin for “friend of the

court,” amicus briefs find their roots in Roman and British common law.9 In

those traditions, the amicus—usually but not always a lawyer in the commu-

nity—was tasked with giving the court information it otherwise lacked, or recti-

fying “manifest error” in the court’s reasoning.10 In the days before law libraries

and digital search tools, courts could turn to such a “bystander” for “oral ‘Shep-

ardizing,’ the bringing up of cases not known to the judge.”11

In the early-nineteenth century, Henry Clay, who would go on to become a

Senator,12 submitted the first amicus brief to the Supreme Court in Green v. Bid-

dle, a case involving land disputes in his home state of Kentucky.13 From the late

nineteenth century through the 1930s, third-party, private-litigant, and federal-

or state-government “ex officio” briefs were gradually subsumed under the ami-

cus header.14 By the mid-twentieth century, it became more and more common

for outside organizations to intervene in support of a litigating party and to make

arguments directly for the party on whose behalf the amicus brief was filed, ra-

ther than the amicus itself.15:{

....

Over the past century, the volume of Supreme Court amicus briefs swelled

from a slow trickle to a stream, and finally to a flood. Amici filed 781 briefs in the

2014 Term,16 a more than 800% increase from the 1950s and a 95% increase from:{

1995.17 And the number of filings continues to rise. In the Court’s 2019 Term,}:

amici filed 911 briefs, a rate of about sixteen per case;18 the recently concluded

2020 Term featured almost 940 amicus briefs filed at the merits stage.19 Some

high-profile cases even draw amici numbering in the triple digits.20

There has been an accompanying explosion of amicus activity at the certio-

rari (cert) stage, where litigants petition the Supreme Court to hear or reject a

case. Between 1982 and 2014, the percentage of petitions with at least one cert-

stage amicus more than doubled from 6% to 14%.21 Why amici increasingly

weigh in at this step of the process is easy to understand. The Court receives

thousands of cert petitions per year but elects to hear fewer than seventy-five of

those cases.22 With such a low selection rate, persuading the Court to wade into

a particular dispute is a critical first step for those seeking to steer its agenda.

Though amicus activity at the circuit-court level is more modest in scope and

did not increase significantly during the first decade of the 2000s,23 cases of con-

stitutional or political import still draw large groups of amici. For example,

Americans for Prosperity Foundation v. Becerra24 (later argued at the Supreme

:{...

145

Court as Americans for Prosperity Foundation v. Bonta25) drew dozens of amicus

briefs on appeal in the United States Court of Appeals for the Ninth Circuit.26

The increasing prevalence of amicus briefs correlates with a rise in the Su-

preme Court’s reliance on them. From 2008 to 2013, the Supreme Court cited

amicus briefs 606 times in 417 opinions.27 By contrast, between the 1994 and

2003 Terms, the Court’s majority opinion referenced an amicus brief in only 38%

of the 687 cases in which amicus briefs were filed.28 And between the 1946 and

1955 Terms, all opinions combined—majority, concurring, and dissenting—re-

ferred to amicus briefs in only 18% of the cases with amicus filers.29 As two schol-

ars of the Supreme Court put it, “There is no question but that the total number

of references to amici is substantial, and that the frequency of such references

has been increasing over time.”30 These references within the Court’s opinions

often adopt language and arguments from amicus briefs.31 The extent to which

the Court’s opinions directly quote amici further highlights just how impactful

amicus briefs can be to the Court’s decision-making

...

146

B. The Modern Amicus Machine

The sharp increase in the volume of amicus filings reflects a growing recog-

nition of a basic truth: the amicus brief is now a powerful lobbying tool for in-

terest groups. Indeed, most of the explosion of amicus activity comes from briefs

that are more from a “friend of a party” than a friend of the Court. These briefs

advance the amicus’s own interests or, for member organizations, the interests

of their members.32 In the case of briefs funded by dark money, the briefs ad-

vance the interests of a hidden presence that is unknown to the parties, the

Court, and the public.

As an avenue of influence, the amicus brief is disproportionately available to

well-connected political forces with money and the motivation to use it. Liti-

gants now see lining up a robust slate of amici as an essential component of liti-

gating before appellate courts.33 But doing so requires insider knowledge and

significant resources. Many major cases now have an “amicus wrangler” or an“amicus whisperer”—usually a lawyer connected to the party-in-interest—who

coordinates and vets prospective amici and their arguments before they file.34

:{:{Litigants routinely seek out former Supreme Court clerks and other members of}:

the Supreme Court “elite” to serve as counsel for amici. At the cert stage, theseconnected lawyers can improve the chances of the Court viewing the case as“certworthy.”35 At any stage, seasoned members of the Supreme Court Bar add}:

credibility to the amicus briefs. As the late Justice Ginsburg candidly admitted

in a 2008 interview:

[C]lerks often divide the amicus briefs into three piles: those that should

be skipped entirely; those that should be skimmed; those that should be

read in full. If the attorney submitting the amicus brief has significant

experience before the Court, it would be more likely that their brief

would be placed in a higher priority pile.36

:{:{These highly orchestrated amicus}::{ }::{efforts often have a specific strategic purpose:}:

a flotilla of substantively similar amicus briefs can create the appearance of}:

147

:{:{broad support for a particular position, even if a party to the litigation has en-}:

gineered the filing process for briefs on its side.}:

This carefully managed process can confer unfair advantages to a litigant. As

former Seventh Circuit Judge Posner explained as early as 1997, the positions of

amici briefs in many cases dovetail so closely that they “in effect merely extend[]

the length of the litigant’s brief.”37 Therefore, to Judge Posner, such briefs “are

an abuse.”38 Sharing Judge Posner’s concerns, the Advisory Committee on the

Federal Rules of Appellate Procedure imposed a shorter length for circuit-court

amicus briefs the following year, noting in its comments that each amicus brief

“is supplemental”39 and “should treat only matter not adequately addressed by a

party.”40

C. The Amicus Machine in Action::{:{ }::{Americans for Prosperity Foundation v.}:

Bonta}:

:{:{Americans for Prosperity Foundation v. Bonta}::{ }::{provides a recent and extreme}:

example of the “flotilla” phenomenon. Plaintiff Americans for Prosperity Foun-

dation (AFPF), the 501(c)(3) arm of the Koch network’s right-wing 501(c)(4)

political-advocacy group Americans for Prosperity, objected to a California state

regulation that required 501(c)(4) nonprofits to confidentially disclose their

largest donors.41 The nonprofits had to provide the state Attorney General with

a copy of their IRS Form 990 Schedule B—information the organizations must

already, of course, provide to the IRS.42 The case proceeded through the federal

courts with little fanfare or media attention. But at the Supreme Court cert stage,

a veritable armada of amici supporting AFPF barraged the Court, urging it to

grant cert.}:

This was a highly coordinated effort made possible only by the money and

connections of the Koch political enterprise. At least fifty-five of the cert-stage...

amici in support of the petitioner43 had taken money either from the Koch po-

litical network or from a Koch-linked44 anonymous account at DonorsTrust, an

administrator of “donor-advised” funds that has been described as “the dark-money ATM of the right.”45

Subsequently, at the merits stage, at least forty-five

filers46 :{had apparent financial ties to the Koch network and/or DonorsTrust.

Additionally, the Center for Media and Democracy found that eleven prominent

43. Namely:American Center for Law and Justice, Buckeye Institute, Cato Institute, Center for

Arizona Policy, Center for Constitutional Jurisprudence (Claremont Institute), Chamber of

Commerce of the United States of America, Christian Civic League of Maine, Citizens United,:{

Citizens United Foundation, Committee for Justice, Delaware Family Policy Council, Family}:

Foundation of Kentucky, Family Foundation of Virginia, Family Policy Alliance, Family Policy

Alliance of Georgia, Family Policy Alliance of Idaho, Family Policy Alliance of Kansas, Family

Policy Alliance of New Jersey, Family Policy Alliance of New Mexico, Family Policy Alliance

of North Dakota, Family Policy Alliance of Wyoming, Family Policy Institute of Washington,

Foundation for Michigan Freedom, Gun Owners Foundation, Gun Owners of America, Ha-

waii Family Forum, Independent Women’s Forum, Indiana Family Institute, Institute for Free

Speech, Institute for Justice, Judicial Watch, Leadership Institute, Liberty Justice Center, Mas-

sachusetts Family Institute, Minnesota Family Council, Montana Family Foundation, Na-

tional Association of Manufacturers, National Right to Work Commission, National Right to

Work Legal Defense Fund, Nebraska Family Alliance, New Civil Liberties Alliance, New

Hampshire Cornerstone Policy Research Action, New Yorker’s Family Research Foundation,

Pacific Legal Foundation, Pacific Research Institute, People United for Privacy Foundation,

Proposition 8 Legal Defense Fund, Public Integrity Alliance, Public Interest Legal Foundation,

South Dakota Family Heritage Alliance, Texas Public Policy Foundation, The Presidential Co-

alition, U.S. Chamber of Commerce Foundation, West Virginia Family Foundation, and Wis-

consin Family Council, Inc. :{

See generally Center for Media and Democracy, SOURCE WATCH ,

https://www.sourcewatch.org [https://perma.cc/BL5Z-8MUP] (tracking corporations’

public-relations campaigns, including corporate front groups and public-relations opera-

:{tions).

For additional lists of donors, see DonorsTrust, DE SMOG, https://www.desmog.com

/who-donors-trust [https://perma.cc/4Q J7-PE72], which provides a catalogue of recipients

of DonorsTrust funding, from an environmentalist group tracking the funding sources of cli-

mate-change denial); and C ONSERVATIVE TRANSPARENCY , http://conservativetransparency

.org [https://perma.cc/TT3H-HZ6V], which offers a searchable database of reported contri-

butions to right-wing nonprofit groups, collected from known donors’ IRS Form 990 sub-

missions and other sources.

J ANE MAYER , DARK MONEY : T HE HIDDEN H ISTORY OF THE B ILLIONAIRES BEHIND THE R ISE OF

THE R ADICAL R IGHT 372 (2017) (“[P]rivate foundations accounted for the . . . million[s]

pooled by DonorsTrust . . . . Many were the same billionaires and multimillionaires who

formed the Koch network.”).

Andy Kroll, Exposed: The Dark-Money ATM of the Conservative Movement, M OTHER J ONES

(Feb. 5, 2013), https://www.motherjones.com/politics/2013/02/donors-trust-donor-capital-

fund-dark-money-koch-bradley-devos [https://perma.cc/8SEH-5D9V]; Alex Kotch, Con-

servative Foundations Finance Push to Kill the CFPB, PRWATCH (Feb. 13, 2020),

https://prwatch.org/news/2020/02/13540/conservative-foundations-finance-push-kill-cfpb

[https://perma.cc/3RBH-BQYB].

Namely: American Center for Law and Justice, American Legislative Exchange Council,

....

a flood of judicial lobbying: amicus influence and funding

transparency

149

:{:{Ad}::{ditionally, the Center for Media and Democracy found that eleven prominent}::{

}:}:

right-wing groups gave close to $222 million to sixty-nine of the organizationsfiling amicus briefs in support of AFPF.47

It is difficult—if not impossible—to credibly argue that such amici are inde-

pendent of the plaintiff, because AFPF is itself a central political organization of

the Koch network.48 Yet none of these groups disclosed their financial ties to the

plaintiff. Why would they? The Court does not require them to. As I discuss in

greater detail in Part II below, existing rules, as currently interpreted by the

courts, require only disclosure of funds earmarked specifically for the prepara-

tion and submission of a particular brief—a level of specificity that donors almost

never reach, even when funding the entire amicus practice of a legal nonprofit.

The lack of disclosure obscured the fact that the amicus armada in AFPF—

one of the largest ever assembled—featured far more plaintiff- and donor-net-

work-tied amici than even some of the highest-profile cases involving right-wing

donor interests. Consider, for instance,:{:{ }::{National Federation of Independent Busi-}:

nesses v. Sebelius (NFIB), the first major constitutional challenge to the Afforda-

ble Care Act (ACA).49

In NFIB, anonymized right-wing donors hostile to the

ACA pumped over $2 million into the litigation effort.50 However, trailing the

Buckeye Institute, Cato Institute, Center for Constitutional Jurisprudence, Center for Equal

Opportunity, Chamber of Commerce of the United States of America, Citizens United, Citi-

zens United Foundation, Concerned Women for America, Family Foundation, Foundation

for Michigan Freedom, Freedom Foundation, Goldwater Institute, Gun Owners Foundation,

Gun Owners of America, Illinois Family Institute, Independent Women’s Law Center, Insti-

tute for Free Speech, Institute for Justice, James Madison Center for Free Speech, Judicial

Watch, Inc., Leadership Institute, Liberty Justice Center, National Association of Manufac-

turers, National Legal Foundation, National Right to Work Committee, National Right to

Work Legal Defense Foundation, National Taxpayers Union Foundation, New Civil Liberties

Alliance, Pacific Justice Institute, Pacific Legal Foundation, Pacific Research Institute, People

United for Privacy Foundation, Proposition 8 Legal Defense Fund, Public Interest Legal

Foundation, Rio Grande Foundation, Southeastern Legal Foundation, Thomas More Society,

U.S. Chamber of Commerce Foundation, Young Americans for Liberty, and Young America’s

Foundation. See supra note 43.

David Armiak, Major Right-Wing Funders Push Supreme Court Case Against Donor Disclosure,

PRWATCH (Apr. 26, 2021, 10:45 AM), https://www.prwatch.org/news/2021/04/13714/major

-right-wing-funders-push-supreme-court-case-against-donor-disclosure

[https://perma.cc/9C6D-BUX5].

Alexander Hertel-Fernandez, Caroline Tervo & Theda Skocpol, How the Koch Brothers Built

the Most Powerful Rightwing Group You’ve Never Heard Of, GUARDIAN (Sept. 26, 2018, 3:01 PM

EST), https://www.theguardian.com/us-news/2018/sep/26/koch-brothers-americans-for-

prosperity-rightwing-political-group [https://perma.cc/U4HZ-8ZSN].

nfib artl:

Paul Blumenthal, NFIB Received Huge Koch Brothers-Linked Contribution in 2011, HUFFPOST

(Sept. 17, 2013, 6:03 PM EST), https://www.huffpost.com/entry/nfib-koch-brothers_n

_3943225 [https://perma.cc/T8RE-T454]; see also Chris Frates, Koch Bros.-Backed Group Gave

Millions to Small Business Lobby, CNN (Nov. 21, 2013, 8:05 PM EST), https://www.cnn.com

the yale law journal forum October 24, 2021

150

flotilla in AFPF, only four groups filed at the cert stage and only seven groups

tied to that same funding network weighed in at the merits stage.51:{

Janus v. American Federation of State, County & Municipal Employees, Council 31,52 theright-wing attack on union agency-shop fees, and:{:{ }::{Seila Law v. Consumer Finan-}:

cial Protection Bureau,53 a Federalist Society-inspired assault on the “administra-tive state,” each featured groups of only about a dozen commonly funded amici.54

Why was the amicus flotilla in AFPF so large, outpacing those in cases in-

volving national, high-stakes issues such as labor organizing and healthcare?}:

Simply put, because the stakes for the donors behind AFPF could not have been

higher. Indeed, the issue in AFPF was an existential one for the amicus machine:}:

in deciding nonprofit donors’ alleged right to anonymity, the Court would di-

rectly impact the ability of dark-money donors to continue shaping judicial out-

comes. In effect, the amicus briefs argued for a constitutional right to anony-

:{mous dark-money spending in our democracy.

:{:{The size of the}::{ }::{AFPF}::{ }::{flotilla also}:

functioned as a signaling device: it told the ideologically aligned members of the

Court that a “correct” outcome in this case was more urgent than it might oth-

erwise have seemed from the narrow question presented. And many amicus

briefs asked the Court to go well beyond the narrow confines of the case.55}:

/2013/11/21/politics/small-business-big-donor/index.html [https://perma.cc/X9VA-LDYG]

(reporting that the NFIB and its affiliated groups received $2.5 million from a Koch brothers-

backed conservative advocacy group).

Namely: American Civil Rights Union, Chamber of Commerce of the United States of Amer-

ica, American Center for Law and Justice, Competitive Enterprise Institute, Family Research

Council, Texas Public Policy Foundation, and Cato Institute. Other briefs, such as the brief

amici curiae for “Economists,” featured some individuals employed by groups of this sort as

signatories.

138 S. Ct. 2448 (2018).
140 S. Ct. 2183 (2020).
:{:{Namely: Claremont Institute, Pacific Legal Foundation, Southeastern Legal Foundation, Na-}:

tional Federation of Independent Business (NFIB) Small Business Legal Center, Washington

Legal Foundation, Cato Institute, Landmark Legal Foundation, New Civil Liberties Alliance,

Buckeye Institute, Center for the Rule of Law, Competitive Enterprise Institute (CEI), The

60 Plus Association, and Chamber of Commerce of the United States of America. See Brief of}:

Amici Curiae U.S. Senators Sheldon Whitehouse, Richard Blumenthal, and Mazie Hirono in

Support of Court-Appointed Amicus Curiae at 1a-6a, Seila Law LLC v. Consumer Fin. Prot.

Bureau, 140 S. Ct. 2183 (2020) (No. 19-7).

See, e.g., Br. of American Legislative Exchange Council as Amici Curiae in Support of Petition-

ers (Mar 1, 2021), at 14 (“The Court should take the present opportunity to instruct the lower

courts that the associational right to privacy is an important right in all cases, compelled dis-

closure is per se harm, and it is always the government’s burden to justify infringement of that

right.”) and 19-20 (“[T]he Court should . . . restore a high bar for courts to uphold govern-

ment invasions of associational privacy in all contexts. One way to do that . . . would be for

:{the Court to clarify that “exacting scrutiny” and “strict scrutiny” require the government to

...

151

:{:{Sure enough, Chief Justice Roberts’s ruling in favor of the Koch network—a}:

6-3 decision with all Republican-appointed Justices in the majority—cast doubt

on the constitutionality of disclosure requirements of any kind, turbocharging

the kind of secretive influence through which the Koch operation and its allies

already dominate the public sphere.56}:

:{:{Significantly, many of the donors behind these amici lobbied for the confir-}:

mation of the Justices hearing the case. For instance, Americans for Prosperity,

the 501(c)(4) group directly affiliated with the plaintiff Foundation, spent “mil-

lions” of dollars on a “Full Scale Campaign” to confirm Justice Barrett to the

bench while AFPF’s cert petition was pending before the Court.57}:

Yet, in spite of

all this lobbying on her behalf by an affiliate of one of the parties, Justice Barrett

rebuffed calls for her recusal in this matter by me and others—a recusal seem-

ingly required under the Court’s own due-process precedent58—and heard the

case anyway.59

D. Amicus Briefs and Dark-Money Influence on the Courts

Amicus briefs play an important role in the appellate process. Indeed, I have

filed many myself.60 Interested parties should be able to use amicus briefs to ad-

vance their view of the law or their conception of the public interest or to educate

...

a court with their specialized expertise. But the emergence of coordinated, se-

cretly funded amicus campaigns like the effort in AFPF reflects a troubling ave-

nue of special-interest influence within the courts, obscuring from both the pub-

lic and the Court who is really in the courthouse presenting arguments and how

a favorable ruling might benefit them. As the First Circuit emphasized in the

immediate aftermath of the AFPF decision, “there is plainly an informational in-

terest served” by laws requiring identification of a speaker’s donors, as

"c]itizens rely ever more on a message’s source as a proxy for reliability and a

barometer of political spin.” 61

The negative effects that these new amicus campaigns have on our democ-

racy are twofold. The wealthy few fund the campaigns, excluding the majority

of Americans from the process and exacerbating preexisting countermajoritarian

and inequality concerns.And without a mechanism for disclosure, the general

public currently does not, and cannot, know how judicial reasoning is influenced

by masked private actors.

Anonymously funded, coordinated amicus efforts are just one component of

a larger strategy to capture the federal judiciary for the benefit of a self-interested

donor class and for Republican Party electoral interests.62 As a strategy, it is not

very different from “regulatory capture,” a well-documented phenomenon in ad-

ministrative spaces.63 Courts can equally be targeted, as became very apparent

during the Trump Administration. By its own words, the Trump Administration

“insourced”64 its judicial selection process to a single, well-funded outside

group, the Federalist Society, which former President Trump acknowledged

“picked” his judges.65 A majority of the Court’s sitting Justices are active members

154

...of the Federalist Society, which receives an enormous amount of anony-

mous donations each year.66 Although it officially claims to take no policy posi-

tions, the Federalist Society serves as a “political epistemic network,”67 promot-

ing doctrines that advance right-wing political goals, bringing formerly fringe

theories into the mainstream of legal thought,68 and giving potential judicial

nominees opportunities to “audition” for future vacancies.69

It is odd that a private group should acquire such power; it is still odder that

this power should have no guardrails. But that is the point. Players at the center

of this insourced judicial-selection operation concurrently raised multimillion-

dollar anonymous donations for the Federalist Society.70 :{

Related fundraising hauls went to political advertisements to support confirmation of Trump nomi-nees. Federalist Society board cochair and former Executive Vice PresidentLeon-ard Leo coordinated a donor network that took in over $400 million in darkmoney between 2014 and 2018 to pursue judicial confirmation activities.71 A ma-

jor player in this network, the Judicial Crisis Network (JCN), spent tens of mil-lions of dollars on campaigns to confirm Justices Gorsuch, Kavanaugh, and Bar-rett, taking in enormous donations from an anonymous source each filing year

from 2015 through 2018.72 These donations may all have come from the same

155

donor.73 Whoever the donor was, he or she was able to get their hand-selected

judges confirmed for life to the federal bench. Consider this Stage One of two.}:

In Stage Two, these same forces use dark money to fund dozens of so-called

“public interest” litigation boutiques, such as Pacific Legal Foundation (PLF).74}:

:{:{These groups scour the country for sympathetic and willing “plaintiffs of con-}:

venience” to bring litigation that advances their constitutional theories and ide-

ological and political goals, even in the absence of a genuine “case or contro-

versy.”75 When these groups fail to find outside plaintiffs, they can just bring the

suits themselves, as in AFPF.}:

:{:{Nominal plaintiffs can do very well. The nominal plaintiff in the first consti-}:

tutional challenge to the Affordable Care Act, the NFIB, had never received a

contribution in excess of $21,000 through 2009, the year before they brought

the suit.76 From 2010 through 2012, the years in which NFIB was the nominal}:

:{:{

156

plaintiff, dark money flowed into it; the group received millions of dollars in}:

donations from a limited group of wealthy donors,77 including an anonymized

$1.15 million in 2010 fromDonorsTrust,78 $500,000 in 2011 from the Koch net-work-linked group Free Enterprise America,79 $1.5 million in 2012 from the

Koch-backed Freedom Partners,80 and $3.7 million in 2012 from Crossroads

GPS, the group of long-time Republican strategist Karl Rove.81}:

Many of these litigants intentionally lose their cases in lower courts—a glar-ing departure from the ordinary course of litigation. For example, the plaintiffs

in Friedrichs v. California Teachers Association, barely hiding that their lawsuit was

a weapon for overturning decades-old labor precedents,82 directly asked the

courts to rule against them so that they could expeditiously take their claims to

the Supreme Court.83:{

:{:{In}::{ }::{Cedar Point Nursery v. Hassid}::{, plaintiffs recruited by PLF}:

rushed to lose at every stage of lower-court litigation, without showing any tan-

gible injury, foregoing claims that, in a real case or controversy, could have se-

cured them adequate relief.84 They did so to push PLF’s extreme constitutional}:

[82 See Lisa Graves, Snapshot of Secret Funding of Amicus Briefs Tied to Leonard Leo–Federalist Society

Leader, Promoter of Amy Barrett, TRUE N. R SCH . (Oct. 9, 2020), https://truenor-

thresearch.org/2020/10/snapshot-of-secret-funding-of-amicus-briefs-tied-to-leonard-leo-

federalist-society-leader-promoter-amy-coney-barrett [https://perma.cc/X42A-BVSR]; see

also Mary Bottari, Behind Janus: Documents Reveal Decade-Long Plot to Kill Public-Sector Un-

ions, I N THESE TIMES (Feb. 22, 2018), https://inthesetimes.com/features/janus_su-

preme_court_unions_investigation.html [https://perma.cc/E9J9-4ZXD] (describing how

undisclosed funder interests, such as the State Policy Network and the Bradley Foundation,

brought Friedrichs hoping to “kneecap the unions of public-sector workers . . . in a single

blow]

157

theory directly to the Supreme Court’s doorstep.85 The Court’s indulgence of

this behavior creates a “fast lane” for judicial-policy victories via cases lacking the

most basic features of real litigation, such as a firm factual record, a concrete

injury, and an attempt to win one’s case at trial.

When not deployed as nominal plaintiffs, or as counsel to nominal plaintiffs,

these same dark-money interests are orchestrated into judicial-lobbying cam-

paigns using arrays of amicus briefs, fueled by massive anonymous donations

and often with common donors behind multiple briefs.86 Given that the interest

groups participating in the “amicus machine” are some of the same ones that

pushed through judicial nominations, they’re not just “friends of the court”—in

many cases, they are quite literally friends of the judges they have put on the

Court.

Donors have reaped enormous returns on their investments. As I have doc-:{

umented, the Roberts Court has handed down over eighty partisan Republican

5-4 decisions87 that benefit an easily identifiable Republican Party-donor inter-

est.88

:{:{These include decisions that remove constraints on anonymous giving}:

(e.g., Citizens United v. FEC,89 Americans for Prosperity Foundation v. Bonta90), as

well as decisions that weaken the power of countervailing institutions like labor

unions (e.g., Janus v. American Federation of State, City & Municipal Employees,}:

158

Council 3191), regulatory agencies (e.g., Seila Law v. Consumer Financial Protection

Bureau92), and the civil jury (e.g., Epic Systems Corp. v. Lewis93).}:

:{:{The effects of this litigation strategy on our democracy are frightening: the}:

courts are becoming an arena for enacting policies by judicial decree that are too

unpopular to pass through democratically elected legislatures. These coordi-}:

nated efforts warp the judiciary toward anonymous, ultrawealthy donor inter-

ests, all without the public ever learning about the role of dark-money interests

in shaping the law. The Supreme Court was already, by its nature, an avenue for

:{countermajoritarian ideas and policies to prosper.

But as Barry Friedman ex-plains, especially when the Court is acting during a period of judicial suprem-

acy—as it arguably is now—the countermajoritarian aspect of the institution willflourish.94 Alongside those concerns, the emergence of the dark-money amicus

machine increases the probability that the Court’s rulings will run counter to the

will of the American people (i.e., counter to democracy), and instead for the

benefit of the hidden interests that had a secret hand in putting Justices on the

Court and then filed masked amicus briefs.

ii. existing disclosure rules and their

shortcomings

The troubling rise of influence campaigns by anonymous special interests

flows directly from weak disclosure rules for amici curiae in federal appellate

courts and the Supreme Court. In this Part, I lay out the existing rules, examine

how they are applied, describe their deficiencies, and highlight the many ways

that parties and donors exploit them to achieve unfair and even improper ad-

vantages and outcomes.

Supreme Court Rule 37.6 requires amicus filers to “indicate whether counsel

for a party authored the brief in whole or in part and whether such counsel or a

party made a monetary contribution intended to fund the preparation or submis-

sion of the brief.”95 Further, the Rule requires the brief to “identify every person

or entity, other than the amicus curiae, its members, or its counsel, who made

such a monetary contribution to the preparation or submission of the brief.”96 Fed-

eral Rule of Appellate Procedure (FRAP) 29(a)(4)(E)—modeled after Supreme

...

160

formatting, printing, and delivering the specific brief in the specific case at is-

sue.102 This reading ignores the reality that “money is fungible,”103 allowing an

amicus filer to avoid disclosure altogether, even if its funders include a party in

interest to the case. If a party in interest gives an amicus filer a million dollars

and approves the filed brief, and the brief is designed to benefit that donor, none

of this needs be disclosed if the filing entity has a few thousand dollars on hand

to pay for printing, binding, and service.

A review of amicus practice before the Supreme Court shows that parties to

litigation, as well as large donors who fund impact litigation with the goal of

shaping law and public policy, exploit this loophole to exert anonymous influ-

ence on the courts. As a result, many amicus briefs effectively skirt page limits

on the parties’ briefs or advance boundary-pushing arguments on behalf of

anonymous donors’ long-term interests. Opposing parties, the public, and

courts themselves are left in the dark as to who is seeking to influence judicial

outcomes. Ordinarily, parties can appear in court masked in anonymity only in

very special types of appeals.104 Not so for amici curiae.

This phenomenon takes various forms: parties directly funding amici, do-

nors funding amici and litigants in the same case, donors anonymously orches-

trating amicus projects, and member-organization amici that do not disclose

their members. Below, I explore each form of funding in turn.

A. Parties Directly Funding Amici

The narrow demands of Rule 37.6 and FRAP 29 essentially allow litigating

parties to purchase supplemental merits briefs disguised as amicus briefs.

One recent high-profile Supreme Court case illustrates this problem. In

Google LLC v. Oracle America Inc., the Internet Accountability Project (IAP), a

501(c)(4) “social welfare” organization that does not disclose its funders (and is

:{....

162

disclosures suggest that some attorneys believe their ethical obligations required

a greater degree of disclosure than the Supreme Court requires. Plenty of others,

however, have been content to conceal suspicious financial arrangements, which

the present reading of the Court’s rule permits.

B. Donors Funding Amici and Litigants in the Same Case

Thanks to the work of investigative reporters, in recent years we have been

able to observe the rise in high-profile, politically charged cases that are financed

directly by ideological foundations.113 Often the same foundations that fund the

litigation also exploit the courts’ lenient amicus-funding-disclosure rules to

anonymously fund flotillas of amicus briefs that support their preferred out-

comes.

For example, in the orchestrated challenge to union agency-shop fees first

initiated in Friedrichs v. California Teachers Association,114 one organization bank-

rolled not only the nonprofit law firm bringing the case, but also eleven different

organizations that filed amicus briefs supporting the plaintiffs.115 That organi-

zation was the Lynde and Harry Bradley Foundation—a conservative organiza-

tion that has long sought to weaken labor rights, including by financing impact

litigation.116 If the disclosure rule were operating to its intended effect, the Court

and parties would have been made aware of that funding. Yet none of those ami-

cus filers disclosed the Bradley Foundation as a source of its funding for the brief

under Rule 37.6, and none of those briefs were rejected by the Court for lack of

disclosure.

The Bradley Foundation’s coordinated and undisclosed funding of the liti-

gants and amici in Friedrichs was not a one-off. In Janus v. AFSCME, the follow-

up to Friedrichs, investigative reporters found that the Bradley Foundationagain

...

163

:{:{funded both of the two groups representing the plaintiffs, as well as a dozen}:

groups that filed amicus briefs.117 Similarly, the two groups representing the Ja-

nus plaintiffs, plus thirteen amicus filers, all received funding from Donors Trust,

mentioned above.118

None of this common funding was disclosed to the Court.

:{:{Finally, in}::{ }::{Seila Law LLC v. Consumer Financial Protection Bureau}::{, eleven amici}:

aligned with the petitioner Seila Law received financial support from the sameentities, which also fund the Federalist Society.119 The Center for Media and De-

mocracy subsequently found that “16 right-wing foundations,” including the

Bradley Foundation and DonorsTrust, “have donated a total of nearly $69 mil-

lion to 11 groups that filed amicus briefs in favor of scrapping the CFPB.”120 None

of this information was disclosed to the Court under its current reading of the

Rule.}:

C. Donors Anonymously Orchestrating Amicus “Projects”

Recently released documents reveal how donors like the Bradley Foundation

use tax-exempt money to coordinate amicus “projects,” in which they influence

court results by funding an array of groups in the same legal network as the Fed-

eralist Society, as presumably occurred in Seila Law.121 :{

:{:{In 2015, a representative}:

of the Bradley Foundation emailed Leonard Leo, then Executive Vice President

of the Federalist Society, to ask if there was “a 501(c)(3) nonprofit to which Brad-

ley could direct any support of the two Supreme Court amicus projects other

than Donors Trust.”122 Leo replied, “Yes, Judicial Education Projectcould take

and allocate.”123 In turn, Judicial Education Project (JEP), a 501(c)(3) tax-ex-

empt organization that does not disclose its donors, submitted a grant proposal

to Bradley seeking $200,000 to coordinate and develop amicus briefs in two po-

litically charged (but otherwise completely unrelated) cases: the aforementioned}:

...

164

Friedrichs and King v. Burwell,124 a challenge to the Affordable Care Act. The

Bradley Foundation estimated that “each of the two amicus-brief efforts costs

approximately $250,000, for a total of $500,000,” and the Bradley staff recom-

mended a $150,000 grant be given to JEP to support this work.125 The Bradley

staffer explained the strategy behind this investment as follows:

At this highest of legal levels, it is often very important to orchestrate

high-caliber amicus efforts that showcase respected high-profile parties

who are represented by the very best lawyers with strong ties to the

Court. Such is the case here, with King and Friedrichs, even given Bradley’s

previous philanthropic investments in the actual, underlying legal actions.126

In King and Friedrichs, none of the amici supporting the Bradley-funded litigants

disclosed their Bradley Foundation funding under Rule 37.6—or any of their

funding sources for that matter. This nondisclosure resulted from interpreting

the Rule narrowly to require disclosure only of funds intended to cover the costs

of formatting, printing, and delivering the briefs.127

D. Member-Organization Amici that Do Not Disclose Their Members

Another loophole impeding transparency in the amicus-funding-disclosure

regime is that it exempts from disclosure any contributions by an amicus filer’s

own members.128 This enables parties to litigation to secretly fund amicus briefs

in support of their position by funneling money through organizations of which

they are members

...

conseq cred down 10% [more now post roe epa?]

168

..."personal hospitality” exemption to the Ethics in Government Act’s disclosure require-

ments.145

The judiciary’s failure to police the flood of anonymous judicial filings con-

tributes to a culture of opacity and unaccountability, which has rightly left the

public jaded. As I have documented here, wealthy and sophisticated repeat play-

ers exploit the Court’s ineffective amicus-funding-disclosure regime to develop

what amounts to a massive, anonymous judicial-lobbying program that leaves

the Court, the parties, and the public in the dark. They have created a procedural

fast lane for their issues that the Court then indulges. They exploit the lower

appellate courts’ rule, where amicus briefs of any kind are less common, and or-

chestrate amicus projects to influence outcomes.

One rare example of the Court actually enforcing its Rule 37.6 illustrates the

absurd results created by the current disclosure regime. In 2018, the Court re-

jected an amicus submission by the U.S. Alcohol Policy Alliance for its failure to

comply with Rule 37.6. The Court deemed the brief noncompliant because it

neglected to disclose the names of each of the group’s donors, many of whom

contributed through the small-dollar crowdfunding website GoFundMe.146 The

Alliance was forced to return donations from individuals who wished to remain

anonymous and refile its brief, disclosing the names of individuals who had sup-

ported the campaign. The organization had raised small-dollar gifts ranging

from $25 to $500.147

The Court’s disparate treatments of the crowdfunded, small-dollar-backed

brief filed by the U.S. Alcohol Policy Alliance and the wealthy, repeat-player

amici who routinely file anonymously funded briefs is both troubling and tell-

ing. It reflects an elemental tension in a democracy between two classes of citizens

...

reform:

171

B. Legislative Reform

While I recognize the prospect of the judicial branch cleaning up this mess

on its own, a legislative solution is necessary if it does not. We must ensure trans-

parency around judicial lobbying and put all amicus funders on an equal playing

field.

I have proposed one such solution: the Assessing Monetary Influence in theCourts of the United States Act (AMICUS Act).156 The bill narrowly targets only

high-dollar funders of amicus filers, requiring disclosure of only those who con-

tributed three percent or more of the amicus group’s gross annual revenue, or

over $100,000.157

Greater transparency will likely have salutary effects on Supreme Court and

appellate-court practice. When amicus filers can no longer hide their true inter-

ests, judges and Justices might be more wary of arguments that seem facially

neutral, but are actually self-serving. It would also have a salutary effect on anon-

ymous money groups across the entire political and legal sphere, presenting in-

terested parties and advocacy groups with a choice: be honest about the interests

you represent or take your advocacy elsewhere. We customarily demand this in

American courtrooms.158

I am hopeful that both my Democratic and Republican colleagues in the Sen-

ate will join me in support of the AMICUS Act. However, if history is any indi-

cation, some will continue to stand in opposition to increased transparency

:{within the monetary-disclosure sphere.

As a recent example, one of my Senate

colleagues, Minority Leader Mitch McConnell, filed an amicus brief in support

of Americans for Prosperity in AFPF v. Bonta.In his brief, Senator McConnell

argued not only that the Court should create a new constitutional right to dark-

money nonprofit spending (an invitation it readily accepted in AFPF), but that

the Supreme Court “frankly, ought to revisit its campaign finance disclosure prec-

edents,” thereby endorsing the prospect of constitutional protection for dark-

money spending in elections—159 a chilling thought, indeed

...

the yale law journal forum October 24, 2021

172

C. Overcoming Constitutional Challenges

:{:{

}:}:

:{:{Even if passed into law, my AMICUS Act, or any similar reforms self-im-}:

posed by the courts, may run into the buzzsaw of the right wing’s heavily orga-

nized and—yes—anonymously funded effort to secure constitutional protection

for dark-money political spending.160 Critics of compelled disclosure claim that

it violates First Amendment associational or speech rights, such as those at issue

in NAACP v. Alabama ex rel. Patterson.161 In NAACP, the Supreme Court refused}:

to allow compelled disclosure of the identities of NAACP members in the Deep

South who faced significant threats to their physical safety during the Civil

Rights Era.162 In AFPF v. Bonta, as I discussed in Part I above, the Court’s Re-

publican-appointed majority presumptively extended the NAACP protections to

all membership organizations, even those that experience no significant threats

or burdens whatsoever.

:{:{Take the business network of the Chamber of Commerce, whose corporate}:

members face no serious threat of reprisal for the public expression of their

views, but which is capable of extracting significant benefits for its members via

anonymous amicus lobbying. As one scholar has written, “applying NAACP v.

Alabama’s holding in a formally symmetrical manner to the relatively power-

ful . . . without regard to context may undermine rather than affirm the values

underlying that decision.”163}:

The balance between the public’s interest in transparency and organizations’

associational rights was already badly off-kilter in favor of dark money and ano-

nymity. There is simply no public-safety comparison between Black citizens and

civil-rights activists in the Jim Crow South, under the active abuse of a state gov-

ernment that often operated arm-in-arm with the Ku Klux Klan, and today’s

elite, wealthy interests. But in AFPF, the “Supreme Court that dark money

...

173

built”164 made that exact false equivalence the law of the land.165 Indeed, in pri-

vate correspondence offering feedback on my AMICUS Act, the Court has al-

ready suggested that “requiring broader disclosure of an organization’s member-

ship information or general donor lists could well infringe upon the associational

rights of the organization,” citing NAACP for that proposition.166

However, the more relevant cases are those disfavoring anonymity in judicialproceedings. As a general rule, parties “should be permitted to proceed anony-

mously only in those exceptional cases involving matters of a highly sensitive

and personal nature, real danger of physical harm, or where the injury litigated

against would be incurred as a result of the disclosure of the plaintiff ’s identity.

The risk that a plaintiff may suffer some embarrassment is not enough.”167 The

same rationale applies to amici. In United States v. Microsoft Corp., the Court

found that a lower court erred in granting the “‘rare dispensation’ of anonymity

against the world” when it allowed an amicus to file a brief anonymously, con-

cluding that “the court has ‘a judicial duty to inquire into the circumstances of

particular cases to determine whether the dispensation is warranted.’”168 That

same rationale should apply to organizational funders, who possess the leverage

to “control[] the arguments advanced by others.”169

In our correspondence, the Court has also foreshadowed its willingness to

invalidate my proposed legislation as violating the separation of powers, noting

that “this legislation would intrude into areas historically left to the Court.”170 I

reject that suggestion. Congressional authority over federal courts, including the

regulation of judicial processes, has long been accepted as expansive. While Con-

gress has historically delegated much of its rulemaking authority directly to the

...

174

courts, where Congress has deemed it appropriate, it has by statute rejected or

amended proposed rules, delayed the effective dates of proposed rules, or drafted

and enacted court rules itself.171

conclusion

Amicus curiae briefs, an increasingly influential part of our legal system, have

become the lobbying tool of choice for right-wing dark-money interests, who

can coordinate systematized armadas of commonly funded briefs to push for

their preferred political outcomes. The amicus machine usually goes undetected

due to a disclosure regime that flatly fails to show the courts and parties (and the

public) the sources of that coordinated common funding. This coterie of funders

takes advantage of that secrecy to press its interests by bringing cases to Justices

that they themselves helped get onto the Court. The Court’s pattern of partisan

decisions is hard to explain statistically. In conjunction with the broader dark-

money project of capturing the courts, the outcomes are bad for democracy, tilt-

ing our system ever further towards the interests of a wealthy few.

The judiciary must awaken to the wealthy few’s ongoing scheme to influence

the Court through anonymously funded amicus briefs. Either our judicial sys-

tem confronts this scheme and strengthens its countermeasures, or legislation

will have to address the problem. Justice Scalia once wrote:

Requiring people to stand up in public for their political acts fosters civic

courage, without which democracy is doomed. For my part, I do not look

forward to a society which, thanks to the Supreme Court, campaigns

anonymously . . . hidden from public scrutiny and protected from the ac-

countability of criticism. This does not resemble the Home of the

Brave.172

On this point, Justice Scalia and I are in rare agreement

:{endit2

}::{:{:{:{:{:{:{:{:{:{:{:{:{:{

https://insideclimatenews.org/news/15052022/philippines-fossil-fuels-climate-liability

icn 5 22 nick k

when Typhoon Haiyan struck the Philippines in 2013, it made a direct hit on the hometown of Yeb Saño’s family. Saño,the country’s chief climate negotiator at the time, had to attend the United Nations climate change conference in Poland only days after the storm passed. As he addressed the other delegates, his brother was helping collect the dead.

“My brother remembered exactly how many bodies he picked up with his own hands,” Saño said. “Seventy-three dead bodies exactly.”

Haiyan ultimately killed more than 6,000 people in the Philippines and damaged more than 1 million homes, uprooting lives with devastation from which the country still hasn’t recovered. While the storm may have been an act of nature, Saño and others were convinced that humans, ultimately, were responsible.

In 2015, working with Greenpeace Southeast Asia, Saño sought to hold those people accountable, petitioning the Philippines’ Commission on Human Rights to declare the world’s largest fossil fuel companies “accountable for either impairing, infringing, abusing or violating human rights” because of their contribution to climate change.

earlier this month, the commission issued its conclusions. Saño felt vindicated. In a damning and lucidly-written report, the commission found that the world’s largest fossil fuel companies had “engaged in willful obfuscation and obstruction to prevent meaningful climate action.” The companies continue to deny climate science and try to slow a transition away from fossil fuels, the report said, driven “not by ignorance, but by greed.”

As the first national human rights body to weigh in on fossil fuel companies’ role in driving climate change, the commission determined that corporations have obligations under human rights law and can be held liable if they neglect them. While the commission has no power to compel companies or governments to act on its findings, legal experts said its report carries broad implications for other cases.

“This is a milestone for the narrative that climate impacts result in the infringement of human rights,” said Saño, now the executive director of Greenpeace Southeast Asia. “So this report means a lot to Filipinos who confront the adverse effects of the climate crisis. This means a lot for the pursuit of climate justice.”

Some of the companies named in the petition, which included Chevron, ExxonMobil and other major producers, sought to have it dismissed, the report said, arguing that the commission had no jurisdiction beyond its borders and that the topic reached outside its traditional realm of political and civil rights. But the commission rejected these appeals, determining that it had a mandate “to test boundaries and create new paths; to be bold and creative, instead of timid and docile.”

Some experts said the report’s impacts extend beyond the Philippines, increasing the legal risks that fossil fuel companies are facing from a raft of lawsuits around the world. Despite the commission’s lack of enforcement powers, legal experts said its findings provide new strength and evidence for cases that have already been filed and will help people file new challenges in courts and human rights commissions elsewhere.

“I think corporations, their boards, their leaders should really start taking this potential liability seriously,” said John Knox, an expert in international and human rights law at Wake Forest Law who testified to the Philippines commission. “This is the harbinger of much more to come.”

The commission’s multi-year inquiry and its final report are part of a growing effort globally to reframe climate change as a threat to human rights. Last year, the United Nations Human Rights Council created a new special rapporteur on human rights in the context of climate change. Aside from better recognizing the impacts of warming on people’s health and well-being—now evident around the world in the form of more extreme weather—advocates of this framing say it provides a solid base for holding governments and corporations accountable if they fail to cut greenhouse gas emissions.

Saño said he has been in touch with colleagues in other parts of Asia, Africa, Latin America and Europe about the report’s findings.

“Many of them were just waiting for this to be completed,” he said, “and now that we have seen the culmination of the Philippines case it provides a lot of energy into those other possibilities.”

A Roadmap to Document Harm

The Philippines is one of the most climate-vulnerable countries in the world, an archipelago south of Taiwan that is hit by an average of 20 cyclones each year, according to the commission’s report. The country has also contributed only a tiny portion of the greenhouse gases that humans have pumped into the atmosphere over the last century-and-a-half. The pairing of the Philippines’ vulnerability with its relative lack of culpability makes it a powerful venue for an inquiry into climate change and human rights.

In 12 public hearings and many hours of testimony, the commission gathered an exhaustive catalog of evidence about the science of climate change and its impacts, and fossil fuel companies’ efforts to sow doubt about that science as they lobbied against government attempts in the United States and other countries to reduce dependence on coal, oil and gas.

The petition by Greenpeace drew on the research of Richard Heede, who leads the Climate Accountability Institute and has published studies linking specific levels of greenhouse gas emissions to specific companies, the so-called “carbon majors.” According to Heede’s research, Saudi Aramco, the state-owned oil company of Saudi Arabia, is responsible for more emissions than any other company, with Chevron and Exxon close behind.

Carroll Muffett, president of the Center for International Environmental Law, which filed an amicus brief in support of the petitioners, said the new report was perhaps the most comprehensive compendium of all the research that has been published on fossil fuel companies’ role in driving emissions.

But what stood out, Muffett said, is that the report tied those greenhouse gas emissions to immediate threats to specific human rights of Filipinos, including their rights to life, health, food security and sanitation.

“Through every one of those rights, the commission pulls out witness testimony that says this was the lived experience of this,” Muffett said. “It is very much a roadmap to show how you document human rights impacts of climate change not only on entire nations, but on individuals and the communities who are being harmed, and that is, I think, extremely important.”

One chieftain from the southern Philippines testified that her people have been unable to practice traditional rituals based on seasonal rhythms because erratic weather has disrupted the once-predictable patterns. A rice farmer reported decreased harvests as a result of extreme heat.

One storm survivor told of losing three children, a son-in-law and four grandchildren to Typhoon Sendong in 2011. Veronica Cabe, one of the petitioners, spoke about the destabilizing effects of having her home destroyed by a storm.

“We felt displaced, we didn’t have our own space,” she told the commission. “We were forced to live with friends who were willing to share their homes with us. We were separated from each other.”

The commission held several hearings in New York and London, and traveled to the Netherlands, too, in a mostly-failed attempt to have some of the 47 fossil fuel companies named in the petition testify or meet with the commissioners.

The report focuses in particular on arguments made by theAmerican Petroleum Institute, the American coal industry and others, beginning in the 1990s, against efforts to limit emissions from fossil fuels, despite those organizations’ knowledge of the dangers of failing to do so.

In the report, the commission cites international human rights laws and standards to say that corporations, in addition to states, have obligations to protect human rights. It points to the continued financing of politicians who oppose climate action as evidence that fossil fuel companies are still working to deflect needed action. And it adds that financial institutions that fund fossil fuel production share in the responsibility and, potentially, liability for continuing to drive emissions higher.

Scott Lauermann, a petroleum institute spokesman, said, “At a time of rising energy costs and geopolitical volatility around the world, it’s more apparent than ever that we must both reduce emissions and ensure access to affordable, reliable energy for U.S. consumers, and that’s exactly what our industry has been focused on for decades” He added, “Any suggestion to the contrary is false.”

Creighton Welch, a spokesman for Chevron, said, “Chevron intends to be a leader in efficient and lower-carbon production of traditional energy—in high demand today and for years to come—while growing the lower-carbon businesses that will be a bigger part of the future.”

Todd Spitler, an Exxon spokesman, said the company was “developing comprehensive roadmaps to reduce greenhouse gas emissions from our operated assets around the world and in support of society’s net-zero ambitions,” including investments in low-carbon technologies such ascarbon capture and storage, hydrogen and biofuels. He added, “Our commitment to emissions reduction isn’t new; we have supported the Paris Agreement from its inception and made consistent progress on short- and medium-term emissions-reduction plans.”

A spokesperson for Saudi Aramco declined to comment.

The report was the first to be issued by a national human rights commission, and experts said it was only the second official finding to tie fossil fuel companies’ actions and responsibilities directly to the human rights impacts of climate change. Last year, a Dutch court ordered Shell to reduce its emissions in a ruling that drew in part on human rights laws.

Muffett and others said the report will add to a growing list of rulings and evidence laying the groundwork for holding specific companies liable for their role in fueling warming.

“What the commission is saying is there are adequate bases here for seeking to hold these companies liable,” Muffett said. “And I think that’s really significant because this report provides a pretty clear roadmap to human rights bodies and courts around the world, to then take up cases to do precisely that.”

In the report, the commission acknowledged that it had no enforcement powers, and instead was providing recommendations to companies and governments for how they could meet their obligations to protect human rights with respect to climate change. For companies, chief among those was halting the exploration of new oil and gas fields and contributing to a climate fund for mitigation and adaptation. The report said states must enact policies to make sure companies take these steps, and to penalize those that don’t.

Saño said he hopes the report would have immediate impacts in the Philippines, where the son of the former dictator Ferdinand Marcos Sr. was just elected president on Monday. He said successive governments have failed to address injustices in the country, including the concentration of power in a small elite, that exacerbate the impacts of climate change. The new government has an obligation to better protect its citizens from the storms that hit its coastlines every year, Saño said, and “this really paves the way for a lot of change, we hope.”

}:}:}:}:}:}:}:}:}:}:}:}:}:}:

https://www.lwv.org/sites/default/files/climate.courtofappeals.LWV%2520Amicus%2520Brief.pdf

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF OREGON,

Respondent,

and

KELSEY CASCADIA ROSE JULIANA, et al.,

Real Parties in Interest

On Petition For Writ of Mandamus in

Case No. 6:15-cv-01517-TC-AA (D. Or.)

AMICI CURIAE BRIEF OF LEAGUES OF WOMEN VOTERS IN

OPPOSITION TO PETITION FOR WRIT OF MANDAMUS

Courtney B. Johnson

(OSB No. 077221)

CRAG LAW CENTER

917 SW Oak Street, Ste. 417

Portland Oregon, 97205

Tel: (503) 525-2728

https://crag.org/courtney-johnson-not-just-job/

Courtney Johnson

Executive Director & Staff Attorney

Tel: (503) 525-2728

Courtney received her JD with a certificate in environmental and natural resources law from Lewis & Clark Law School in Portland. While in her first year of study, she interned with the Crag Law Center. As a law student, Courtney interned in the Office of Compliance and Enforcement at the Oregon Department of Environmental Quality (DEQ) and San Francisco Baykeeper. Before joining Crag, Courtney clerked for a district court judge in Ketchikan, Alaska. While there, Courtney enjoyed the wilds of Alaska and its incredible wildlife by sea kayaking, hiking and snowshoeing.

Courtney joined the Crag Law Center in 2008 as a Staff Attorney. Much of her work at Crag has focused on protecting the health of coastal rivers, from gravel mining in the rivers of the south coast, including the Chetco and the Rogue, to addressing proposals for fossil fuel exports along the Columbia at Astoria. Courtney represents the Nez Perce Tribe on the cleanup and restoration of the Portland Harbor Superfund Site. She also works with Oregon’s youth challenging the state to take action on climate change in the children’s climate case. Courtney is a published author on topics of climate change adaptation and marine spatial planning.

nature 406 2000

https://www.nature.com/articles/35018718

Supporters of the US tobacco industry have failed to silence one of its most prominent academic critics.

An appeals court in California has ruled that Stanton Glantz, a professor of medicine at the University of California at San Francisco (UCSF), can use his position to back the state government's anti-smoking efforts.

In 1997, Californians for Scientific Integrity — a group set up at a Sacramento attorney's office by the industry-sponsored National Smokers Alliance — sued Glantz in an attempt to stop him using his academic position to help the state of California fight smoking.

The group alleged that Glantz's 15 years of campaigning was a misuse of public funds. It also charged that the university's approval of his activities was a violation of the rights of those Californians who did not agree with the anti-smoking cause.

But two weeks ago, a three-judge panel of the Third District Court of Appeals in Sacramento rejected the allegations, reaffirming the right of any faculty member at the University of California to campaign against smoking.

“It makes me very glad to work at a university that takes academic freedom and public interest very seriously and has the courage to stand up to … the tobacco industry,” said Glantz, who is widely known for challenging the industry's claims that it was unaware of the dangers of smoking.

Citing statements on a recruitment flyer, he claims that Californians for Scientific Integrity “was set up for the express purpose of suing the University of California and silencing me”.

“It was clear intimidation,” he adds. “But this shows you can stand up and beat them.”

Mark Perry, a Washington DC-based attorney with the firm of Gibson, Dunn and Crutcher that represents the suing group, did not answer a request for comment. Perry has said separately that no decision has been reached on whether to appeal to the California Supreme Court.

Nor was there a response from the Claremont Institute, a conservative think-tank in California that filed a ‘friend of the court’ brief in support of the group.

Although the decision only addresses the rights of university staff to campaign against smoking, it could be far-reaching. Along with other cases, any faculty member of a Californian public university could use it to affirm his or her right to campaign for any cause endorsed by the state legislature.

Last month, Glantz, who conducts research in UCSF's cardiology division, won the annual Public Service Achievement Award of the lobby group Common Cause for his “tireless and tenacious” efforts against smoking. In the past, pro-smoking groups have attacked him in both California and Washington — accusing him of falsifying a result in a study of the effects of ‘second-hand smoke’, and seeking to cut off his research funds.

https://www.sfgate.com/news/article/Court-rules-professor-can-use-his-job-to-fight-3054189.php

Court rules professor can use his job to fight smoking

By Bob Egelko Published 4:00 am PDT, Tuesday, July 11, 2000

The tobacco industry's leading nemesis in California can continue to fight smoking from his perch as a UC professor, says a state appellate court.

An industry-allied group, Californians for Scientific Integrity, sued the University of California in 1998 over Stanton Glantz's use of his university job and resources to push for tougher state action against smoking. The suit contended Glantz's activities were a misuse of tax money.

But the 3rd District Court of Appeal said Glantz's activity was authorized by the Legislature, which has directed the state to "play a leading role in promoting a smoke-free society by the year 2000."

Glantz, a professor of medicine at UC-San Francisco, was a founder and former president of Californians for Nonsmokers' Rights. He has worked for state and local bans on smoking in public buildings and for stronger messages in state-funded anti-smoking ads.

His studies on smoking and health have been disputed by tobacco companies, which have tried to get Congress and the California Legislature to cut off his government funding. The suit by Californians for Scientific Integrity initially included a challenge to the validity of a study by Glantz that found that prohibitions on smoking in restaurants did not hurt tourism. That claim was later dropped and the group ultimately sought only to halt the alleged misuse of state funds for lobbying.

"They were attempting to intimidate me and the university," Glantz said Monday. "The university stood up to the thugs in cigarette companies again and won again."

Mark A. Perry, a lawyer for the group that sued the university, said no decision has been made on a further appeal. He said he disagreed with the court's conclusion that the general statements in state law about a smoke-free society authorized Glantz to use state funds to promote anti-smoking policies.

Perry denied Glantz's assertion that Californians for Scientific Integrity was a front for the tobacco industry, but said it is partially funded by the National Smokers' Alliance, which draws funding from tobacco companies.

The appellate ruling Thursday upheld a decision by Sacramento County Superior Court Judge Joe Gray to dismiss the suit without a trial. The court said California law forbids certain types of state-funded political activities, such as the use of state funds to influence election campaigns, but does not prohibit activity that the Legislature itself has authorized. <

https://www.lwv.org/sites/default/files/climate.courtofappeals.LWV%2520Amicus%2520Brief.pdf

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF OREGON,

Respondent,

and

KELSEY CASCADIA ROSE JULIANA, et al.,

Real Parties in Interest

On Petition For Writ of Mandamus in

Case No. 6:15-cv-01517-TC-AA (D. Or.)

AMICI CURIAE BRIEF OF LEAGUES OF WOMEN VOTERS IN

OPPOSITION TO PETITION FOR WRIT OF MANDAMUS

Courtney B. Johnson

(OSB No. 077221)

CRAG LAW CENTER

917 SW Oak Street, Ste. 417

Portland Oregon, 97205

Tel: (503) 525-2728

https://crag.org/courtney-johnson-not-just-job/

Courtney Johnson

Executive Director & Staff Attorney

Tel: (503) 525-2728

mass v epa

Amici Curiae Brief on CO2 case

Amici Curiae Brief of Climatologists and Scientists Sallie Baliunas, John R. Christy, Chris De Freitas, David Legates, Anthony Lupo, Patrick Michaels, Joel Schwartz, and Roy W. Spencer in Support of Respondents. by CEI Staff October 24, 2006http://www.cei.org/gencon/030,05572.cfm

Amicus brief written by Competitive Enterprise Institute

IN THE SUPREME COURT OF THE UNITED STATES COMMONWEALTH OF MASSACHUSETTS, et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit AMICI CURIAE BRIEF OF CLIMATOLOGISTS AND SCIENTISTS SALLIE BALIUNAS, JOHN R. CHRISTY, CHRIS DE FREITAS, DAVID LEGATES, ANTHONY LUPO, PATRICK MICHAELS, JOEL SCHWARTZ, AND ROY W. SPENCER IN SUPPORT OF RESPONDENTS SAM KAZMAN* HANS BADER CHRISTOPHER C. HORNER COMPETITIVE ENTERPRISE INSTITUTE 1001 Connecticut Ave., NW, #1250 Washington, D.C. 20036 (202) 331-2265 *Counsel of Recordhttp://www.cei.org/pdf/5572.pdf

Amicus brief activity

The U.S. Chamber Litigation Center, a nonprofit affiliated entity of the United States Chamber of Commerce, files amicus curiae briefs in courts throughout the country. The group files amicus briefs "that present unique and compelling legal arguments, and that educate courts on the practical implications of legal decisions to the broader business community."[22]

According to the organization's website, the Chamber filed amicus briefs in the following U.S. Supreme Court cases from 2013 to 2016:

Amicus briefs filed by the U.S. Chamber Litigation Center in the U.S. Supreme Court, 2013-2016
2013[23]
Air Wisconsin Airlines Corp. v. Hoeper Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas et al. (J-Crew Management Inc.) Carmax Auto Superstores California LLC et al. v. Fowler DaimlerChrysler AG v. Bauman et al. Environmental Protection Agency v. EME Homer City Generation; American Lung Association v. EME Homer City Generation Fifth Third Bancorp, et al. v. John Dudenhoeffer et al. Ford Motor Co. v. U.S. Halliburton Co. v. Erica P. John Fund Inc. (II) Heimeshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores Inc. Lawson v. FMR LLC Mount Holly v. Mt. Holly Gardens Citizens in Action Inc. National Labor Relations Board (NLRB) v. Noel Canning Northwest Inc. v. Ginsberg Petrella v. Metro-Goldwyn-Mayer Inc. Pom Wonderful LLC v. Coca Cola Co. Sandifer v. United States Steel Corp. Sprint Communications Company v. Jacobs U.S. Chamber of Commerce, American Farm Bureau Federation, and State of Alaska v. Environmental Protection Agency (EPA) (consolidated with UARG v. EPA) Walden v. Fiore
2014[24]
Armstrong v. Exceptional Child Center Inc. City of Los Angeles v. Patel Comptroller v. Wynne Dart Cherokee Basin Operating Co. v. Owens Department of Transportation v. Association of American Railroads Direct Marketing Association v. Brohl Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc. Gelboim et al. v. Bank of America Corporation et al. Horne v. Department of Agriculture (II) Integrity Staffing Solutions Inc. v. Busk et al. Kellogg Brown & Root Services v. United States ex rel. Carter M&G Polymers USA LLC v. Tackett Mach Mining v. Equal Employment Opportunity Commission (EEOC) Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund Perez v. Mortgage Bankers Association State of Michigan et al. v. EPA T-Mobile South LLC v. City of Roswell Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. Tibble v. Edison International et al. Yates v. United States Young v. United Parcel Service
2015[25]
Amgen Inc. v. Harris Campbell-Ewald v. Gomez CRST Van Expedited Inc. v. Equal Employment Opportunity Commission DIRECTV Inc. v. Imburgia Encino Motorcars LLC v. Navarro Gobeille v. Liberty Mutual Insurance Company Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning MHN Government Services Inc. v. Zaborowski Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan Puerto Rico v. Franklin California Tax-Free Trust (II) Schumacher Homes of Circleville Inc. v. Spencer Self-Insurance Institute of America v. Snyder, Governor of Michigan et al. Spokeo Inc. v. Robins The Dow Chemical Company v. Cook The Ritz-Carlton Development Company Inc. v. Narayan Tyson Foods Inc. v. Bouaphakeo et al. United States Army Corps of Engineers v. Hawkes Co. Inc. Universal Health Services Inc. v. United States ex rel. Escobar
2016[26]
State Farm Fire and Casualty Company v. United States ex rel. Rigsby Microsoft Corporation v. Baker Murr v. Wisconsin Bank of America Corp. v. City of Miami; Wells Fargo & Co. v. City of Miami

Leadership

https://www.exposedbycmd.org/2020/10/13/senator-whitehouse-calls-out-dark-money-networks-behind-amy-coney-barretts-scotus-nomination

no lnx grafs

Senator Whitehouse Calls Out Dark-Money Networks Behind Amy Coney Barrett’s SCOTUS Nomination

By ExposedByCMD Editors | October 13th, 2020

Bradley Files, Democracy, Featured Investigations, Koch, News, RAGA, Trump7 Comments

Editor’s Note: The following is a transcript of remarks made by Sen. Sheldon Whitehouse (D-RI) in the October 13, 2020, Senate Judiciary Committee hearing on the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court.

Thank you, Chairman, Judge Barrett. You can take a bit of a breather on your return to the committee, because what I want to do is go through with the people who are watching this now the conversation that you and I had when we spoke on the telephone. You were kind enough to hear out a presentation that I made, and I intend to ask some questions in that area, but it doesn’t make sense to ask questions if I haven’t laid the predicate, particularly for viewers who are watching this.

So, I guess the reason that I want to do this is because people who are watching this need to understand that this small hearing room and the little TV box that you are looking at, the little screen that you are looking at, are a little bit like the frame of a puppet theater, and if you only look at what’s going on in the puppet theater you’re not going to understand the whole story. You are not going to understand the real dynamic what is going on here, and you are certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.

So first, let me say, why do I think outside forces are here pulling strings?Well, part of it is behavior. We have colleagues here who supported you, this nominee, before there was a nominee. That’s a little unusual.

We have the political ram job that we have already complained of driving this process through at breakneck speed in the middle of a pandemic while the Senate is closed for safety reasons and while we are doing nothing about the COVID epidemic around us. We have some very awkward 180s from colleagues. Mr. Chairman, you figure in this. Our leader said back when it was Garland versus Gorsuch, that of course, of course, the American people should have a say in the Court’s direction. Of course, of course, said Mitch McConnell. That’s long gone.

Senator Grassley said the American people shouldn’t be denied a voice. That’s long gone. Senator Cruz said you don’t do this in an election year. That’s long gone. And our chairman made his famous hold-the-tape promise if an opening comes in the last year of President Trump’s term we’ll wait until the next election. That’s gone too.

So there is a lot of hard-to-explain hypocrisy and rush taking place right now, and my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows. Now people say well, what does all this matter? This is a political parlor game; it’s no big deal. Well, there are some pretty high stakes here that we have been talking about here on our side, and I will tell you three of them right here.

Roe v. Wade, Obergefell, and the Obamacare cases. Here’s the GOP platform, the Republican platform, the platform of my colleagues on the other side of this aisle say that a Republican president willappoint judges who will reverse Roe, Obergefell, and the Obamacare cases. So if you have a family member with an interest in some autonomy over their body under Roe v. Wade, the ability to have a marriage, have friends marry, have a niece or a daughter or a son marry someone of their same-sex they have – you’ve got a stake, and if you are one of the millions and millions of Americans who depend on the affordable care act you’ve got a stake.

It’s not just the platform. Over and over again, let’s start by talking about the Affordable Care Act. Here is the president talking about this litigation that we are gearing up this nominee for for November 10. In this litigation, he said we want to terminate healthcare under Obamacare.

That is the president’s statement, so when we react to that, don’t act as if we are making this stuff up. This is what President Trump said. This is what your party platform says: reverse the Obamacare cases. Senator after senator, including many in this committee, filed briefs saying that the Affordable Care Act should be thrown out by courts. Why is it surprising for us to be concerned that you want this nominee to do what you want nominees to do?

One quick stop on NFIB v. Sebelius, because a lot of this has to do with money. This is an interesting comparison. National Federation of Independent Businesses, until it filed the NFIB v. Sebelius case, had its biggest donation ever of $21,000. In the year that it went to work on the Affordable Care Act, ten wealthy donors gave $10 million. Somebody deserves a thank you.

So let’s go on to Roe v. Wade. Same thing. Same thing. The president has said that reversing Roe v. Wade will happen automatically because he is putting pro-life justices on the Court. Why would we not take him at his word? The Republican Party platform says it will reverse Roe. Why would we not comment on that and take you at your word?

Senators here, including Senator Hawley, have said I will vote only for nominees who acknowledge that Roe v. Wade is wrongly decided, and their pledge to vote for this nominee. Do the math. That’s a really simple equation to run.

The Republican brief in June Medical said Roe should be overruled, so don’t act surprised when we ask questions about whether that’s what you are up to here. And finally, out in the ad world that you have spared yourself wisely Judge Barrett, the Susan B Anthony Foundation is running advertisements right now saying that you are set, you are set to give our pro-life country a Court that it deserves.

Here is the ad with the voiceover. She said – she said. And then Roe, Obamacare cases and Obergefell, gay marriages. National Organization for Marriage, the big group that opposes same-sex marriage, says in this proceeding, all our issues are at stake. The Republican platform says it wants to reverse Obergefell. And the Republican brief filed in the case said same-sex relationships don’t fall within any constitutional protection, so when we say the stakes are high on this, it’s because you have said the stakes are high on this. You have said that is what you want to do. So how are people going about doing it? What is the scheme here?

Let me start with this one. In all cases, there’s big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. It is managed by a guy – was managed by – a guy named Leonard Leo, and it has taken over the selection of judicial nominees. How do we know that to be the case? Because Trump has said so over and over again. His White House counsel said so. So we have an anonymously funded group controlling judicial selection run by this guy Leonard Leo.

Then in another lane, we have again anonymous funders running through something called the Judicial Crisis Network, which is run by Carrie Severino, and it is doing PR and campaign ads for Republican judicial nominees. It got $17 million – a single $17 million donation in the Garland-Gorsuch contest. It got another single $17 million donation to support Kavanaugh. Somebody, perhaps the same person, spent $35 million to influence the United States Supreme Court. Tell me that’s good.

And then over here you have a whole array of legal groups, also funded by dark money, which have a different role. They bring cases to the Court. They don’t wind their way to the Court, your Honor, they get shoved to the Court to by these legal groups, many of which ask to lose below so they can get quickly to the Court to get their business done there. And then they turn up in a chorus, an orchestrated chorus of amici.

Now I’ve had a chance to have a look at this. And I was in a case, actually, as an amicus myself, the Consumer Financial Protection Board case. And in that case there were 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 amicus briefs filed, and every single one of them was a group funded by something called DonorsTrust.

DonorsTrust is a gigantic identity-scrubbing device for the right wing so that it says DonorsTrust is the donor without whoever the real donor is. It doesn’t have a business. It doesn’t have a business plan. It doesn’t do anything. It’s just an identity scrubber.

And this group here, the Bradley Foundation, funded eight out of the 11 briefs. That seems weird to me when you have amicus briefs coming in little flotillas that are funded by the same groups but nominally separate in the court.

So I actually attached this to my brief as an appendix. Center for Media and Democracy saw it, and they did better work. They went on to say which foundations funded the brief writers in that CFPB case. Here is the Bradley Foundation for $5.6 million to those groups. Here’s DonorsTrust, $23 million to those brief writing groups. The grand total across all the donor groups was $68 million to the groups that were filing amicus briefs, pretending that they were different groups.

Right-Wing Foundations Fund Anti-Consumer Protection Groups, 2014-present

Sixteen right-wing foundations gave nearly $69 million to groups urging the Supreme Court to abolish the Consumer Financial Protection Bureau since 2014.

Donor Amount

DonorsTrust $23,460,705

Charles Koch Foundation $12,986,462

Sarah Scaife Foundation $7,550,000

L&H Bradley Foundation $5,579,500

Searle Freedom Trust $4,550,000

Dunn Foundation $4,450,000

Donors Capital Fund $2,522,680

John William Pope Foundation $1,895,175

Bradley Impact Fund $1,363,000

Mercer Family Foundation $1,200,000

Adolph Coors Foundation $1,155,000

F.M. Kirby Foundation $672,500

Charles Koch Institute $517,134

Ed Uihlein Family Foundation $408,000

Pierre F. and Enid Goodrich Foundation $395,000

William H. Donner Foundation $167,000

TOTAL $68,872,156

And it’s not just in the Consumer Financial Protection Board case. You might say well that was just a one-off. Here’s Janus, the anti-labor case that had a long trail through the Court, through Friedrichs, and through Knox, and through other decisions.

And SourceWatch and ProPublica did some work about this. Here’s DonorsTrust and Donors Capital Fund. And here’s the Bradley Foundation. And they totaled giving $45 million to the 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 groups that filed amicus briefs, pretending to be different groups, and both of the lawyer groups in the case, funded by DonorsTrust, funded by Bradley Foundation in Janus.

This is happening over and over and over again, and it goes beyond just the briefs. It goes beyond just the amicus presentations.The Federalist Society– remember this group that is acting as the conduit and that Donald Trump has said is doing his judicial selection? They’re getting money from the same foundations, from DonorsTrust, $16.7 million and the Bradley Foundation, $1.37 million. From the same group of foundations total, $33 million.

Donors to the Federalist Society, 2014-present

The same 16 foundations that fund the amicus brief filers all give to the Federalist Society

donor Amount

DonorsTrust $16,733,100

Mercer Family Foundation $4,850,000

Donors Capital Fund $4,231,120

Charles Koch Foundation $2,419,264

Searle Freedom Trust $1,551,000

Lynde and Harry Bradley Foundation $1,375,000

Ed Uihlein Family Foundation $1,000,000

John William Pope Foundation $250,000

Adolph Coors Foundation $230,000

Pierre F. and Enid Goodrich Foundation $210,000

Dunn Foundation $150,000

F.M. Kirby Foundation $120,000

William H. Donner Foundation $45,000

Bradley Impact Fund $15,250

Charles Koch Institute $6,400

TOTAL $33,286,134

So you can start to look at these, and you can start to tie them together. The legal groups, all the same funders over and over again, bringing the cases and providing us orchestrated, orchestrated chorus of amici. Then the same group also funds the Federalist Society over here. The Washington Post wrote a big expose about this, and that made Leonard Leo a little hot, a little bit like a burned agent. So he had to jump out. And he went off to go do anonymously-funded voter suppression work. Guess who jumped in to take over the selection process in this case for Judge Barrett? Carrie Severino made the hop. So once again, ties right in together.

So, Center for Media and Democracy did a little bit more research. Here’s aBradley Foundation memo that they’ve published. The Bradley Foundation is reviewing a grant application asking for money for this orchestrated amicus process, and what do they say in the staff recommendation? It is important to orchestrate – their word, not mine – important to orchestrate high-caliber amicus efforts before the Court.

Page 3 of 2015 Bradley Summary Judicial Education Project Proposal 150K

Contributed to DocumentCloud by Staff 18 of Documented • View document or read text

They also note that Bradley has done previous philanthropic investments in the actual underlying legal actions. So Bradley is funding – what do they call – philanthropically investing in, the underlying legal action and then giving money to groups to show up in the orchestrated chorus of amici. That can’t be good.

And it goes on, because they also found this email. This email comes from an individual at the Bradley Foundation, and it asks our friend, Leonard Leo, who used to run the selection process, is there a 501(c)(3) nonprofit to which Bradley could direct any support of the two Supreme Court amicus projects other than DonorsTrust? I don’t know why they wanted to avoid the reliable identity-scrubber DonorsTrust, but for some reason they did.

Page 6 of 2014 Bradley Leonard Leo Neil Corkery Carrie Severino Judicial+Education+Project

Contributed to DocumentCloud by Staff 18 of Documented • View document or read text]

So Leonard Leo writes back on Federalist Society address – so don’t tell me that it isn’t Federal Society business – on Federalist Society, on his address, he writes back, yes, send it to the Judicial Education Project, which could take and allocate the money. And guess who works for the Judicial Education Project? Carrie Severino,who also helped select this nominee, running the Trump Federalist Society selection process.

So the connections abound. In the Washington Post article, they point out that the Judicial Crisis Network’s office is on the same hallway in the same building as the Federalist Society, and when they sent their reporter to talk to somebody at the Judicial Crisis Network, somebody from the Federalist Society came down to let them up.

This more and more looks like it’s not three schemes, but it’s one scheme with the same funders selecting judges, funding campaigns for the judges, and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do.

On the Judicial Crisis Network, you’ve got the Leonard Leo connection, obviously. She hopped in to take over for him with the Federalist Society. You’ve got the campaigns that I’ve talked about, where they take $17 million contributions. That’s a big check to write, $17 million, to campaign for Supreme Court nominees. No idea who that is or what they got for it. You’ve got briefs that she wrote. The Republican senators filed briefs in that NFIB case signed by Ms. Severino.

The woman who helped choose this nominee has written briefs for Republican senators attacking the ACA. Don’t say the ACA is not an issue here. And by the way, the Judicial Crisis Network funds the Republican attorneys general. It funds RAGA, the Republican Attorneys General Association, and it funds individual Republican attorneys general. And guess who the plaintiffs are in the Affordable Care Act case? Republican attorneys general.

Trump joined them because he didn’t want to defend, so he’s in with the Republican attorneys general. But here’s the Judicial Crisis Network campaigning for Supreme Court nominees, writing briefs for senators against the Affordable Care Act, supporting the Republicans who are bringing this case, and leading the selection process for this nominee.

Here is the page off the brief. Here is where they are. Mitch McConnell, and on through the list, Senator Collins, Senator Cornyn, Senator Hoeven, Senator — who’s still here? Marco Rubio. It’s a huge assortment of Republican senators who Carrie Severino wrote a brief for against the Affordable Care Act. So this is a, to me, pretty big deal. I’ve never seen this around any court that I’ve ever been involved with, where there’s this much dark money and this much influence being used.

Here’s how the Washington Post summed it up. This is “a conservative activist behind-the-scenes campaign to remake the nation’s courts,” and it’s a $250 million dark money operation. $250 million is a lot of money to spend if you’re not getting anything for it. So that raises the question, what are they getting for it?

Well, I showed the slide earlier on the Affordable Care Act. And on Obergefell and on Roe v. Wade, that’s where they lost. But with another judge, that could change. That’s where the contest is. That’s where The Republican Party platform tells us to look at how they want judges to rule, to reverse Roe, to reverse the Obamacare cases, and to reverse Obergefell and take away gay marriage. That is their stated objective and plan. Why not take them at their word?

But there is another piece of it, and that is not what’s ahead of us, but what’s behind us. What’s behind us is now 80 cases, Mr. Chairman, 80 cases under Chief Justice Roberts that have these characteristics. One, they were decided five to four by a bare majority. Two, the five-to-four majority was partisan in the sense that not one Democratic appointee joined the five. I refer to that group as the “Roberts Five.”

It changes a little bit as–with Justice Scalia’s death, for instance – but there’s been a steady “Roberts Five” that has delivered now 80 of these decisions.And the last characteristic of them is that there is an identifiable Republican donor interest in those cases, and in every single case, that donor interest won. It was an 80 to zero, 5 to 4 partisan rout, ransacking.

And it’s important to look at where those cases went, because they’re not about big, public issues like getting rid of the Affordable Care Act, undoing Roe v. Wade, and undoing same sex marriage.They’re about power. And if you look at those 80 decisions, they fall into four categories over and over and over again. One, unlimited and dark money and politics.Citizens United is the famous one, but it’s continued since with McCutcheon and we’ve got one coming up now. Always the five for unlimited money in politics. Never protecting against money dark money in politics, despite the fact that they said it was going to be transparent.

And who wins when you allow unlimited dark money in politics? A very small group. The ones who have unlimited money to spend and a motive to spend it in politics. They win. Everybody else loses. And if you’re looking at who might be behind this, let’s talk about people with unlimited money to spend and a motive to do it. We’ll see how that goes.

Next, knock the civil jury down. Whittle it down to a nub. The civil jury was in the Constitution, in the Bill of Rights, in our darn Declaration of Independence, but it’s annoying to big corporate powers because you can swagger your way as a big corporate power through Congress. You can go and tell the president you put money into to elect what to do. He will put your stooges at the EPA. It’s all great until you get to the civil jury, because they have an obligation, as you know, Judge Barrett, they have an obligation under the law to be fair to both parties irrespective of their size.

You can’t bribe them. You’re not allowed to. It’s a crime to tamper with the jury. It’s standard practice to tamper with Congress. And they make decisions based on the law. If you’re used to being the boss and swaggering your way around the political side, you don’t want to be answerable before a jury. And so one after another, these 80 5-to-4 decisions have knocked down, whittled away at, the civil jury, a great American institution.

Third – first was unlimited dark money, second was demean and diminish the civil jury – third is weaken regulatory agencies. A lot of this money, I’m convinced, is polluter money. The Koch Industries is a polluter, the fossil fuel industry is a polluter. Who else would be putting buckets of money into this and wanting to hide who they are behind DonorsTrust or other schemes?

And what are – if you’re a big polluter – what do you want? You want weak regulatory agencies. You want ones that you can box up and run over to Congress and get your friends to fix things for you in Congress. Over and over and over again, these decisions are targeted at regulatory agencies to weaken their independence and weaken their strength. And if you’re a big polluter, a weak regulatory agency is your idea of a good day.

And the last thing is in politics. In voting. Why on earth the Court made the decision, a factual decision – not something appellate courts are ordinarily supposed to make, as I understand it Judge Barrett – the factual decision that nobody needed to worry about minority voters in preclearance states being discriminated against, or that legislators would try to knock back their ability to vote. These five made that finding in Shelby County against bipartisan legislation from both houses of Congress, hugely passed, on no factual record.

They just decided that that was a problem that was over, on no record with no basis, because it got them to the result that we then saw. What followed? State after state after state passed voter suppression laws. One so badly targeting African Americans that two courts said it was surgically, surgically tailored to get after minority voters.

And gerrymandering, the other great control. Bulk gerrymandering where you go into a state, like the Red Map project did in Ohio and Pennsylvania, and you pack Democrats so tightly into a few districts that all the others become Republican majority districts. And in those states, you send a delegation to Congress that has a huge majority of Republican members, like 13 to 5, as I recall, in a state where the five, the party of the five actually won the popular vote.

You’ve sent a delegation to Congress that is out of step with the popular vote of that state and court after court figured out how to solve that, and the Supreme Court said nope. 5 to 4 again. Nope. We’re not going to take an interest in that question. In all these areas where it’s about political power for big special interests, and people who want to fund campaigns, and people who want to get their way through politics without actually showing up, doing it behind DonorsTrust and other groups, doing it through these schemes over and over and over again, you see the same thing.

80 decisions, Judge Barrett. 80 decisions. An 80-to-0 sweep. I don’t think you’ve tried cases, but some cases, the issue is bias and discrimination. And if you’re making a bias case as a trial lawyer – Lindsey Graham is a hell of a good trial lawyer. If he wanted to make a bias case – Dick Durbin is a hell of a good trial lawyer. If they wanted to make a bias case and they could show an 80-to-0 pattern, A, that’s admissible, and B, I’d love to make that argument to the jury. I’d be really hard pressed to be the lawyer saying no, 80-to-0 is just a bunch of flukes.

All five-four. all partisan, all this way.So something is not right around the Court. And dark money has a lot to do with it. Special interests have a lot to do with it. DonorsTrust and whoever is hiding behind DonorsTrust has a lot to do with it, and the Bradley Foundation orchestrating its amici over at the Court has a lot to do with it.

So I thank you, Judge Barrett, for listening to me now a second time and I think this gives you a chance for you and I to tee up an interesting conversation tomorrow. And I thank my colleagues for hearing me out.

amicus brief friend of ct

===

Constellation of Anti-Voting Groups Threaten Democracy

These right-wing groups work closely with the RNC and with state legislatures to advance anti-voting legislation.

It’s not just what these groups do, but who runs them.

Notably, the infrastructure on the right is eclipsing the organizations on the left.

NEXT UP

Conservatives Have Been Packing the Courts for Years

florida Voter Suppression Bill (LWV)

CASE DOCUMENTS (DISTRICT COURT)

TRIAL DOCUMENTS

CASE DOCUMENTS (11TH CIRCUIT)

MORE READING

NEXT UP

Florida Voter Suppression Bill (NAACP LDF)

transcript

A Roadmap to Document Harm

Courtney Johnson

Courtney Johnson

Amicus brief activity

Leadership