On the second day of confirmation hearings for Supreme Court nominee Amy Coney Barrett, one senator spent his time trying to zoom out to the bigger picture rather than questioning the judge. As he has done before, Democratic Rhode Island Sen. Sheldon Whitehouse tried to explain his concerns about how dark money, the Federalist Society, and the Judicial Crisis Network have been fueling the conservative campaign to seat Supreme Court justices. Slate’s Lili Loofbourow and Mark Joseph Stern sat down to discuss Whitehouse’s presentation, which you can also watch in full below:
Lili Loofbourow: So, Mark, these confirmation hearings for Amy Coney Barrett have been frustrating to watch. I fell into a kind of depressive stupor as it became increasingly clear that nothing that happens in these proceedings matters. They have the numbers, and they’re going to confirm her, regardless of her qualifications or positions or flaws. Still, it’s been interesting to watch how the Democrats have elected to spend their time. Of everything we heard today, it seemed to me that Sen. Whitehouse’s presentation was both the most important and (to me, a legal novice) the least clear. Sen. Ted Cruz seemed sincerely rattled by his exposé of how dark money is fueling Republican priorities and producing anti-democratic legal outcomes, and Sen. Lindsey Graham looked stricken at times while Whitehouse laid out how organizations like the Bradley Foundation and Donors Trust funnel money to Republican priorities without revealing the donors.
The trouble with explaining a complicated network of influence is that it starts to sound, well, conspiratorial. That’s because these are actual, well, conspiracies! And there are a lot of confusing moving parts! I had a hard time tracking everything Whitehouse was saying, so I’m hoping you can help.
Mark Joseph Stern: I’ve never seen the words sincerely and Ted Cruz used in the same sentence before. But yes, I agree: Cruz and Graham did not look happy with Whitehouse. Republican senators have strived to keep these hearings high-minded and abstract; see Mike Lee and Ben Sasse’s pedantic civics lessons about how the Constitution clearly says only Republicans are allowed to appoint Supreme Court justices. Whitehouse didn’t even bother to play their game. He just showed us who’s funding it.
As you said, though, it’s all too easy for Republicans to simply dismiss Whitehouse as a conspiracy theorist adorning his crazy board. That’s by design. Republicans do have a dark-money network that they tap to fund these judicial confirmation battles. But it’s opaque and contorted—by design, because that’s how dark money works. The donors don’t want the American people to know they’re pouring tens of millions of dollars into these battles. So they (legally) launder their money through phony nonprofits. And that, at bottom, was what Whitehouse was trying to explain with his big red Sharpie. What did you find confusing about his presentation?
Lili: I guess I can start with what I do get. Whitehouse starts off by establishing that several of his Republican colleagues are on record as saying that confirming a Supreme Court justice in an election year isn’t done. Ted Cruz put it succinctly: “You don’t do this in an election year.” They’re doing it anyway. The Republican strategy so far has been to suggest that this is fine because the Republicans are principled and would never dream of using the Supreme Court as a “superlegislature.” (They say, weirdly, that Democrats want to do this.) These are bad-faith arguments we know well: They insist they’d never appoint a justice in order to produce a particular legal outcome, etc. And it’s a story Amy Coney Barrett has gone along with. She has insisted, time and time again, that she has “no agenda.” Whitehouse points out in his presentation that Republicans have actually been startlingly clear about what they want: The official 2016 and 2020 Republican agenda lists reversing Roe v. Wade so as to criminalize abortion, reversing Obergefell so as to eliminate gay marriage, and reversing the ACA as priorities. Trump has echoed all these. So far, so good. I’m on board.
Whitehouse’s objective is to shut down the Republican mystification of a process that’s as grubby as it is plain. He points out that Trump has said reversing Roe will “happen automatically” because he’s putting pro-life justices on the court. “Why would we not take him at his word?” Whitehouse asks. He adds that several Republican senators including Josh Hawley have said: “I will vote only for nominees who acknowledge that Roe v. Wade is wrongly decided.” Here’s Whitehouse: “And they’re pledged to vote for this nominee. Do the math. That’s a really simple equation to run. So don’t act surprised when we ask questions about whether that’s what you’re up to here.” I’m with him, and this was again a common theme of the hearing: Stop saying you’re not here to overturn Roe, because the rest of the Republican Party has said as much.
But then he starts talking about senators filing briefs and NFIB v. Sebelius, the 2012 Obamacare decision, and I’m lost. Can you fill me in? To start with the basics: What’s an amicus brief, and why is it such a big deal that Republicans are using this network to send “flotillas” of them through the courts?
Mark: An amicus brief is a “friend of the court” brief, filed by a party not directly involved with the case that nonetheless has an interest in it. So, for instance, the ACLU files lots of amicus briefs in cases involving free speech, race discrimination, abortion, and so on. Amicus briefs often focus on issues that the actual parties don’t address or don’t fully air out. I wouldn’t say that the “flotilla” of amicus briefs is the most alarming aspect of the judicial dark-money network. But Whitehouse used them to illustrate how these dark-money groups flood the Supreme Court with amicus briefs, creating the impression that there’s more support for a conservative position than there actually is.
There are roughly one trillion conservative legal organizations, and they all file separate amicus briefs when SCOTUS hears a big case—say, an abortion dispute. But the reality is that they’re all getting their money from the same place. Specifically, they’re getting their money from the small group of anonymous billionaires that funds the conservative legal movement.
Lili: Ah. So are amicus briefs extremely influential? Do judges reference them when they write opinions? For example, Whitehouse references the Consumer Financial Protection Bureau case, in which he says there were 11 amicus briefs filed. He says they were backed by a group called Donors Trust, which he characterizes as a “gigantic, identity-scrubbing device for the right wing.” And by another one called the Bradley Foundation, which funded eight out of those 11 briefs.
Do judges, seeing that there are 11 amicus briefs, weigh them more heavily? Or do they understand that this is a manufactured conservative consensus?
Mark: That is an accurate description of Donors Trust. It’s essentially an ATM for conservative groups. Billionaires pour money into the group, and then it distributes the cash to organizations that deny climate change, oppose unions, support gun rights, hate taxes—all the Fox News stuff. I think we should pause here to note how messed up it is that it’s possible for a group to simply register as a nonprofit and conceal the identity of its donors. But that’s Donors Trust, and it’s how the modern conservative money machine works.
Lili: That’s insanely messed up. And the Bradley Foundation does much the same thing, right?
Mark: Yes. And Democrats don’t have an equally powerful analogue. Conservatives have mastered the dark-money game and left Democrats in the dust.
Mark: Specifically, Democrats don’t have a dark-money network to support their judicial nominees or to oppose Republicans’ judicial nominees. There are a handful of advocacy groups that do the work for Democrats, but they have a teensy fraction of the funding that GOP groups get.
Anyway, to your question: Do amicus briefs matter? Yes and no. I think they help the most when they urge the Supreme Court to take up a certain case. Remember, SCOTUS gets thousands and thousands of petitions every year. It takes up fewer than 80 cases. When the conservative groups throw a bunch of amicus briefs howling, “Hey, you better take this case, it’s important!”, the conservative justices seem to pay attention.
The amici (as they’re called) help the conservatives identify the best vehicles through which the Supreme Court can enact Republican policy from the bench, to put it as cynically as I think Whitehouse would.
Lili: Ah. Got it. So it’s an enormous brainstorming effort to find arguments conservative justices can take up and use?
Mark: That’s a huge part of it. And then, once SCOTUS takes the case, the amici help plant the arguments that will not only deliver a conservative policy outcome, but also lay the groundwork for future right-wing decisions.
Lili: I get it now. OK, so at this point Whitehouse is demonstrating that there are enormous amounts of money going toward this—he mentions $45 million going to 15 groups that file amicus briefs pretending they’re different, and by the end he’s effectively described a $250 million operation to remake the courts. His point is these groups aren’t different. They’re all part of one thing, and he’s connecting them to the Federalist Society and to the Judicial Crisis Network.
He notes that these are barely different organizations—their offices are even on the same hallway in the same building. Can you explain what the pretextual distinction between the two is? Like, what’s the cover story?
Mark: That’s a great question and I’m going to answer it, but let me say one last thing about why amicus briefs are important?
Lili: Please do!
Mark: So Justice Anthony Kennedy notoriously cribbed from anti-abortion amicus briefs in his opinion in 2007’s Gonzales v. Carhart, which upheld a federal ban on the safest second-trimester abortion procedure. Most notably, he infamously claimed that a large number of women regret their abortions, and that the government has a strong interest in protecting them from their own choices. To support the claim that a lot of women regret their abortions, he cited … an amicus brief. And guess what? It’s not true.
Mark: But Kennedy was able to add some throat-clearing language—”While we find no reliable data to measure the phenomenon”—cite to an amicus brief, and move on.
Lili: So that’s what they’re for? To supply dubious citations for justices in need of something to support an unprovable claim? Great.
Mark: Yeah, exactly how judging should work, right?
Anyway, back to your question: There’s not really a cover story to explain why all these groups collude. They aren’t particularly subtle about it. What’s important is that the donors stay anonymous.
The biggest player here is the Judicial Crisis Network. A single anonymous donor gave JCN $17 million to fight Merrick Garland and support Neil Gorsuch. We still don’t know who this person was. But they played an incredibly important and consequential role in our democracy. And I think a lot of Whitehouse’s presentation was designed to make viewers wonder: Is that healthy? Is that acceptable? Should someone be allowed to spend $17 million influencing the most powerful court without even owning up to it?
Lili: And whoever that is—presuming they’re the same person—just spent millions more for Barrett, right?
Mark: I don’t think JCN will hit its earlier record, but I know it has already promised to spend $2.2 million on Barrett.
Lili: OK. So Whitehouse says that several Republican senators filed amicus briefs in the NFIB case that were signed by Carrie Severino, who is—and tell me if I have this right—the head of the Judicial Crisis Network, and the person behind Amy Coney Barrett’s selection. Can you briefly tell me why Severino would be signing briefs for senators? Is this normal?
Mark: That’s what Whitehouse was trying to get across. Carrie Severino signed an amicus brief arguing for the total destruction of the ACA. Eight years later, she played a key role in the selection of Barrett to fill RBG’s seat. It’s sort of like if Barack Obama had farmed out his Supreme Court selections to Planned Parenthood, but much worse, because it’s not just ideological—there’s a profit motive.
Lili: The rest of Whitehouse’s speech covers why mysterious donors might be hiding behind these organizations and what they’re getting out of the court. It’s frightening but pretty clear: unlimited dark money in politics! Weakening regulatory agencies! Whittling down the civil jury and voting rights!
Thanks for breaking it down for me, Mark.