The SCOTUS Justices’ billionaire benefactors have an oft-overlooked means of peddling influence: amicus briefs.
This article first appeared in our weekly Hackwatch newsletter on media accountability. Subscribe here to get it delivered straight to your inbox every week, and check out our Hackwatch website.
One year ago this month, ProPublica launched a groundbreaking series of investigations into the rampant corruption and conflicts of interest at the Supreme Court. Beginning with a bombshell exposé on Clarence Thomas’ friendship with billionaire Harlan Crow, the ProPublica team (and The New York Times’ Abbie VanSickle and Steve Eder) revealed that the Court’s conservative justices routinely accept undisclosed luxury gifts and trips from right-wing oligarchs like the Federalist Society’s Leonard Leo, libertarian billionaire Charles Koch, and hedge fund tycoon Paul Singer. Their findings have further eroded the Court’s already-dismal approval ratings, led the Senate Judiciary Committee to authorize subpoenas for Crow and Leo (and issue one last week to the latter), and prompted Chief Justice John Roberts to issue a flimsy “ethics code” for the justices in a failed attempt to save face.
Though Crow and other “court-whisperers” (dubiously) claim to have never directly lobbied Thomas or other justices on business before the Court, one oft-overlooked way in which these billionaires indirectly lobby the Court is through amicus curiae briefs. These “friend of the court” briefs are regularly filed by interest groups that are not a party to a case but nonetheless wish to provide the court with their perspective. And conflict of interest rules that fixate on whether an entity is a “named party” or not make no sense. Often, non-party interests in a case are no less clear than that of the named party, since the Supreme Court always uses cases with specific parties as a means to announce Congressional and statutory interpretations that apply broadly.
Follow the money, and you’ll find that many right-wing groups who file amicus briefs in high-stakes SCOTUS cases are also bankrolled or advised by the Justices’ billionaire benefactors.
And don’t worry—we’ve got the receipts.
A new website launched this week by Take Back the Court, True North Research, and the Revolving Door Project will expose amicus brief filers’ ties to right-wing court-whisperers. Our website, Supreme Transparency, focuses on ten such “powerbrokers” who are connected to justices and to conservative organizations that regularly file SCOTUS amicus briefs, from deep-pocketed donors like Leo, Koch, and Crow to MAGA fundamentalists like John Eastman and Mark Levin. (You can read more about Supreme Transparency in this excellent piece yesterday from The Intercept’s Shawn Musgrave).
We find that nearly one out of every seven amicus briefs submitted this term* was filed or joined by an organization with close ties to one of the right-wing powerbrokers we’re tracking. In several higher-profile cases, conservative groups connected to the justices’ benefactors make up an even higher percentage of briefs.
Take Moore v. U.S., a wealth tax case that could grant a massive windfall to corporations (including some which the justices themselves are personally invested in) and billionaires like Koch and Singer. Of the 22 petitioner-side briefs filed in Moore, 11 briefs (half!) were filed by conflicted organizations, including Americans for Tax Reform (a Koch- and Leo-funded lobbying group) and the Manhattan Institute (which has received over $8.7 billion in funding from Paul Singer and whose Board of Trustees includes Harlan Crow’s wife Kathy).
Or take Loper Bright Enterprises v. Raimondo, which could overturn Chevron deference and upend hundreds of consumer and environmental regulatory protections. More than one-third of briefs siding with the party seeking to toss out Chevron were filed by powerbroker-affiliated groups, including the Koch-funded Goldwater Institute, the Leo-funded New Civil Liberties Alliance, and the Claremont Institute’s Center for Constitutional Jurisprudence (led by the soon-to-be-disbarred John Eastman, a former Thomas clerk).
And in cases that could gut the Consumer Financial Protection Bureau (CFPB v. CFSA) and Securities and Exchange Commission (SEC. v. Jarkesy), powerbroker-affiliated organizations filed 41% and 35% of briefs, respectively, supporting the parties assaulting these agencies’ ability to safeguard the public interest. Among those organizations are the Kochs’ main political arm Americans For Prosperity, the heavily Leo-bankrolled Foundation for Government Accountability, and the Landmark Legal Foundation (whose Chairman, conservative talk radio host Mark Levin, is a close friend of Clarence and Ginni Thomas).
These briefs are significant. They are a relatively under-the-radar means for the justices’ billionaire benefactors to evade direct public scrutiny (and conflict-of-interest law) to signal their interests to the Court, even when those benefactors are not party to a case. A recent Politico investigation found that language used by several Leo-linked amicus filers was echoed by Justice Alito in his majority opinion overturning Roe v. Wade—a ruling that brought the court to its lowest approval ratings in recent history. Uncovering the true scope of the powerbrokers’ amicus influence machine raises serious questions about the Court’s integrity on many more cases.
We hope this website will serve as a useful resource to political and legal reporters throughout the media. Oligarchs and well-connected conservative elites are attempting to buy influence at the court, and the press must pay close attention to their efforts at all levels.
* At launch, our website examines 2023-24 Supreme Court term cases in which all merits amicus briefs were filed before February 2, 2024. We will update the site periodically as more briefs are filed.
Image credit: “United States Supreme Court Building At Dusk” by Joe Ravi is licensed under CC-BY-SA 3.0.
