The predominance of conservative Justices will most certainly affect labor, civil and human rights related causes.
Author: Ruben Rosenthal, Rio de Janeiro* 10/28/2020
Through a carefully planned and covert articulation conservatives will be able to exercise full control of the US Supreme Court for the next few decades. With the recent Senate nomination of Judge Amy Coney Barrett, and her confirmation after voting for the presidential election had already started, the conservative majority was extended to 6 to 3. One of the pillars that should guarantee the balance of the three powers in a Democratic State of Law is now fully undermined.
Behind this “political coup” that has slowly consolidated for two decades are billionaires and large corporations. The predominance of conservative Justices will have consequences that are still unpredictable, but which will certainly affect labor and human rights-related causes, also jeopardizing the current legality of abortion and the LGBT movement’s achievements. Barret’s record shows that she served for three years on the board of directors of a private Christian school that discriminated against gay and lesbian teachers, and did not accept students with same-sex parents.
Having her approval previously secured by the Republican majority, Barret was able to afford to be totally evasive in most responses during the confirmation hearings in the US Senate, even when asked about possible violations of the country’s Constitution by Donald Trump.
In the midst of so much impudence on the part of Barret and the hypocrisy of the Republican senators, who accepted to be part of a complete farce that only exposes the flaws of the North American democracy to the world, we must highlight the questioning conducted by Sheldon Whitehouse (watch on video), Democratic Senator and former attorney general for the State of Rhode Island.
Whitehouse took advantage of the hearing to reinforce complaints that funds of anonymous origin (dark money) has been used to undermine the democratic system in the United States. It is not news that the lobbyists of large corporations already had enormous influence in the North American Congress. However, the integrity of the Supreme Court still remained unquestioned until few years ago. Not anymore.
In a previous Senate speech on September 2016 (see transcript), Whitehouse referred to information from Jane Mayer’s Dark Money book to denounce right-wing billionaires, like the brothers Charles and David Koch (David passed away in 2019), who were interfering in a hidden way in the climate change discussions that were taking place in Congress. Entities such as Donors Trust, Donors Capital Fund and Bradley Foundation were central to the promiscuous chain of transferring funds to think tanks, advocacy groups, trade associations, foundations and academics, in order to challenge scientific evidence that shows fossil fuel relationship with climate change.
According to Fact Check, one of the most influential conservative advocacy groups is Americans for Prosperity (AFP), founded by David Koch. AFP was a major force in support of the ultra-conservative Tea Party movement in defending lower taxes, limiting government spending and deregulation. The group carried out strong attacks on the Affordable Care Act implemented by Obama in 2010. Further, more than $407 million was invested in the 2012 elections by the network supported by Koch, Obamacare being one of the campaign’s targets. As published in the The New York Times in 2013, about $20 million would be used in attacks on Obamacare targeting the 2014 elections. In Jane Meyer’s book it is quoted that Americans for Prosperity had announced that it would invest $750 million in the 2016 US election campaign.
Within the structure of the Koch brothers’ network of influence, the Freedom Partners group (now Stand Together) acts as a secret bank, forwarding anonymous donations to promote conservative causes. Americans for Prosperity was just one of the intermediary groups financed by the Kochs’ secret bank. The NRA, the fire arms lobby, and the United States Chamber of Commerce also benefited.
In February 2020, Senator Whitehouse published an extensive article in the Harvard Law Journal on Legislation (HLJL), which dealt in depth with how anonymous donations were used to corrupt various sectors of the American State structure.
For the senator, corporations manipulate the commanding power in American democracy: “that power too often is directed by corporate forces to dodge accountability for harms to the public; to subvert the free market to their advantage; and to protect their own political power by undermining political institutions”.
An example cited in the article is that of the United States Chamber of Commerce. It has spent $1.5 billion on lobbying activities in the past two decades, acting mainly on climate denial, against equal wage policies, and easing restrictions on the tobacco trade. The entity receives funding from Freedom Partners, the aforementioned “secret Koch bank”.
Whitehouse also reports that after the “infamous” case Citizens United v. FEC, the way was paved for concealing sources of political funding. The conservative group Citizens United, representing corporate interests, had filed a lawsuit against the Federal Election Commission for imposing spending limits on election campaigns. By the 2010 decision, the Supreme Court removed spending restrictions for corporations, unions and non-profit organizations in media and political advertising campaigns.
Whitehouse denounced that corporations “captured regulatory agencies”. Under the Trump administration, the Environmental Protection Agency (EPA) came to be controlled by personnel directly linked to the polluting industries. David Bernhardt, a former oil and gas lobbyist got the position of Secretary of the Department of the Interior, becoming responsible for the administration of most federal lands. The result could not have been anything other than the granting of immense areas for non-renewable energy sources prospecting and production, in addition to the delay in approving wind power generation projects.
The Senator also reported in the HLJL article that the appointment of pro-deregulation judges favorable to corporations has been coordinated over several years, through the action of front groups secretly financed by a right-wing donors network. As federal judges hold lifetime tenures, the nefarious effect would be felt for several decades. Of course the highest prize to achieve is full control of Supreme Court. Acting under a blanket of neutrality Justices can assume the burden of adopting unpopular decisions that many politicians would not dare to take before voters.
Judicial Crisis Network (JCN) is one of the organizations involved in forwarding anonymous donations to fund political advertising campaigns, as mentioned in the HLJL article. During the Obama administration, JCN received $17 million from an “unknown donor” to bar Merrick Garland’s appointment to the Supreme Court, and later to support Neil Gorsuck’s nomination for the same vacancy, already in the Trump administration. In 2018, JCN received another $17 million possibly from the same donor to raise support for the appointment of Brett Kavanaugh, who had to overcome accusations that he committed sexual abuses in his youth .
According to Whitehouse, behind these campaigns was the lawyer Leonard Leo, 59, the main articulator of the plan to guarantee the appointment of conservative judges to the Federal Courts, as well as to influence the outcome of the cases. Details of the strategy adopted had already been reported by The Washington Post, in a May 2019 article.
Leo is executive vice president of the Federalist Society, an influential organization of conservative and libertarian (ultra-liberal) lawyers, with close ties to some Supreme Court Justices. Leo revealed in the Post interview that he had managed to undermine Robert Bork’s appointment to the Supreme Court in 1987. In 2005 and 2006, he led campaigns to support the nominations of John G. Roberts Jr., current President of the Court, and Samuel A. Alito, nominated to replace Harriet Miers’ candidacy, which was contested by the conservative camp itself. Approximately $15 million from anonymous donations was spent on the two campaigns.
Even during the Obama period, Leonard Leo’s influence and political connections continued to grow. Between 2014 and 2017, Leo groups raised more than $250 million to invest in campaigns to support conservative policies.
Also according to the Post, in March 2016 Leo met with Trump, when he was trying to be nominated as a Republican candidate for president. That’s when Leo got support from Trump for the goal of consolidating conservative dominance in the federal courts. During the presidential campaign, Leo became head of three groups – BH Fund, Freedom and Opportunity Fund and America Engaged, which have no employees or websites.
With Trump getting elected, Leo raised financial support for the campaigns of Neil Gorsuch and Brett Kavanaugh, with the participation of funds chaired by him. All three groups hired CRC Public Relations, which ran a sophisticated media campaign. America Engaged donated $1 million to the National Rifle Association’s pro-gun campaign. The NRA, in turn, transferred $1million in the same year in support of Gorsuch’s campaign for the Supreme Court. These examples show the modus operandi of the network responsible for Republicans successful packing the US Supreme Court.
With the passing of progressive Justice Ruth Bader Ginsburg and the fast Senate confirmation of Barret to fill the vacancy, conservative causes were reinforced. However, support for the “moral and ethical” values embraced by conservatism is only the visible tip of the iceberg. It can also be expected that the interests of the great fortunes will be favored to the detriment of the ordinary citizen.
Sheldon Whitehouse’s article in HLJL explains how advocacy groups operate to win judicial cases. After the inauguration of the judge favored by the conservative network campaign, strategic cases will be directed to this judge. During the trial, amici curiae (friends of the Court) funded by the same anonymous donors will speak out, echoing big corporation and Republican donors interests.
Whitehouse cites a case in which 13 amici curiae were funded by entities that were also funding the Federalist Society. In another case, 16 right-wing foundations donated about $69 million to pressure the Supreme Court to abolish the Consumer Financial Protection Center.
Supreme Court judge John G. Roberts is mentioned in Whitehouse’s article for serving the interests of the Republican party. During Roberts’ tenure as head of the Court (initiated in 2005), some 80 controversial decisions were taken by a 5 to 4 score in which the votes were based on strictly partisan bases (watch on video). The decisive vote fell to Roberts 80 times.
Such decisions included authorizing unlimited spending on elections, preventing pollution regulations, curbing minority voting rights, undermining the right to union organization and the right of workers to sue employers in court.
The actions of anonymous donors have infested the courts with a “smell of rot, which can bring lasting damage to the Judiciary as an institution. It is up to Congress to take steps to stop the erosion of trust and bring the Court back to its constitutional role”, added Whitehouse.
Senator Whitehouse does not believe that it is the case for ending the lifetime office term or adding more seats to the Court, as suggested by some critics of the current situation. For him, the first logical step would be to take measures to make the Judiciary more transparent. The senator then proposes five main actions to open the Judiciary black box.
-Introduction of legislation to reveal the large donors who finance “friends of the Court”, in order to stop the influence of corporate interests.
-Prohibition of judges from receiving gifts or having travel and accommodation expenses paid (as a “courtesy”). When Judge Scalia died in 2016, he was staying in a hunting lodge, with his 700 dollar daily bill being paid for by a businessman who had been favored in a labor claim in the Supreme Court, added Whitehouse.
-Transparency of the judges meeting agendas with litigants and amici curiae.
-Preservation of the judges’ personal files. The senator considers that public interest demands such files be transferred to the National Archives after the judge’s death.
-Regulation of donations during the nomination of judges. Campaign expenses must be reported to the Federal Election Commission.
Even if Trump loses the next elections, the interests of the richest 10% that owns 77% of the country’s wealth are already assured. The US Congress would need to approve measures that can ensure that Judiciary decisions do not contribute to further widen this discrepancy, and ideally manage to reduce disparities.
If Democrats win a congressional majority in November elections, there will be strong pressure from the progressive camp to increase the number of Justices at the Supreme Court. It would be a rather overt way of using court packing to revert the effect of the insidious court packing conducted by Republicans in the last twenty years. Now that Joe Biden won the presidential election and Democrats have retained their majority at the House, such possibility will depend on the final outcome of the Senate vote to be decided in January in Georgia.
The author is a retired Brazilian lecturer and researcher, and holds a PhD from London University.