The Supreme Court and Dark Money: "Puppet Theater"

Barrett’s nomination ceremony in September 2020. White House photo.

Following an unprecedented confirmation process involving boycotts, filibusters, and protests, Justice Amy Coney Barrett is now the 115th justice to serve on the United States Supreme Court. Justice Barrett is the first justice in over 151 years to be confirmed without any support from the minority party. Her confirmation comes at a crucial moment as the Supreme Court prepares to hear cases that will define the future of voting rights, the Affordable Care Act, immigration, LGBTQ+ rights, and abortion.

Senator Mitch McConnell celebrated his victory, boasting: “I certainly didn’t expect to have three Supreme Court justices. At the risk of tooting my own horn, look at the majority leaders since L.B.J. and find another one who was able to do something as consequential as this.” Others, however, warned of the dangerous consequences of this rushed and politically-motivated nomination. Senator Chuck Schumer advised Republicans: “You may win this vote, and Amy Coney Barrett may become the next Associate Justice of the Supreme Court. But you will never, never get your credibility back.”

The highly unorthodox, divisive nature of Justice Barrett’s confirmation proves that the Supreme Court will always be a deeply political branch of government, despite its insistence that it remains independent from partisanship.

Trump’s Supreme Court nomination comes just one month after the death of Justice Ruth Bader Ginsburg, a champion of women’s rights and progressive causes, from LGBTQ+ rights to abortion. Many view Justice Barrett as the antithesis of Justice Ginsburg: a “reliable vote on the right of the court.” Much like the late Justice Antonin Scalia, for whom she clerked at the beginning of her career, Justice Barrett is an originalist—she interprets the Constitution, in her own words, as “a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it.” She is a devout Catholic, and though she repeatedly stressed that her faith will not affect her judicial duties, her previous decisions and publications indicate otherwise, as she has a record of opposition to abortion rights and the Affordable Care Act. Additionally, Justice Barrett has previously received $4,200 from the group Alliance Defending Freedom, which advocates for “religious liberty, the sanctity of human life, freedom of speech, and marriage and family” and represented Jack Phillips in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights.

Justice Barrett’s nomination is a carefully calculated political move by the President, the Republican Party, and dark money groups in order to secure a conservative majority in the Supreme Court. During the Supreme Court confirmation hearings, Senator Sheldon Whitehouse outlined the dark web of interest groups, powerful individuals, and big corporations that influence the nation’s highest Court, from who receives the nomination to which cases make the docket. The Senator, who described the hearings as a “puppet theater,” revealed the three interconnected sources of anonymous, or “dark,” money that have supported and funded Barrett and previous conservative Supreme Court nominees: the Federalist Society, the Judicial Crisis Network, and various “public interest” legal groups.

The Federalist Society was led by Leonard Leo, Trump’s “unofficial judicial adviser” who has already played a crucial role in the Kavanaugh, Gorsuch, Roberts, Thomas, and Alito nominations. According to an exposé published by the Washington Post in 2019, from 2014 to 2017, Leo and his allies collected over $250 million in dark money, which was used to “support conservative policies and judges, through advertising and through funding for groups whose executives appeared as television pundits.” Additionally, the nonprofit launched by Leo in 2016, the Freedom and Opportunity Fund, gave $4 million to Independent Women’s Voice, a nonprofit organization whose leaders allegedly “spoke at rallies, wrote online commentary and appeared regularly on Fox News to promote another of Trump’s Supreme Court nominees, Brett M. Kavanaugh.” 

On the other hand, organizations such as the Judicial Crisis Network, led by Carrie Severino, manage public relations and campaigns for Republican judicial nominees. The Judicial Crisis Network allows powerful individuals and corporations to fund the campaigns and ads created by the Federalist Society and Leo anonymously. During the Garland-Gorsuch contest, the Judicial Crisis Network received a single $17 million donation supporting Gorsuch. It received another $17 million donation during Kavanaugh’s nomination—again, anonymously. In the words of the Rhode Island senator, “Tell me that’s good.” Additionally, the offices of the Federalist Society and Judicial Crisis Network are “on the same hallway,” and these organizations work closely together.

Perhaps the most alarming part, and the entities that tie all of these organizations and individuals together, are the foundations that fund legal “public interest groups” that bring cases and amicus briefs to the Supreme Court. Senator Whitehouse described his own experience in Seila Law v. Consumer Protection Financial Board, in which he led an amicus brief highlighting the presence of dark money and special interest groups in the case. Of the eleven amicus briefs presented, all were funded by an organization called Donors Trust—described by the Senator as a “gigantic identity scrubbing device for the right wing”—and eight were also funded by the Bradley Foundation. The Center for Media and Democracy (C.M.D.) expanded on his brief, finding that the Bradley Foundation and Donors Trust had paid the brief-writers in the case $5.6 million and $23 million, respectively. And, since 2014, sixteen right-wing foundations have given almost $68 million to legal groups in order to take down the Consumer Financial Protection Bureau. The C.M.D. also released a memo from the Bradley Foundation regarding a grant to the Judicial Crisis Network stating: “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.” Right-wing foundations and powerful individuals are anonymously investing in legal actions that push their political agenda while also supporting the “high-caliber amicus efforts” presented to the Supreme Court.

How do the legal groups and right-wing “identity scrubbing” foundations connect to Leonard Leo, the Federalist Society, and the Judicial Crisis Network? Sen. Whitehouse described this process using the Affordable Care Act: anonymous donations from right-wing foundations fund individuals and organizations (Leo and the Federalist Society) leading the selection process for Republican attorneys general and conservative Supreme Court justices. The same anonymous donors then fund advertising campaigns from groups such as the Judicial Crisis Network in support of the nominees. The Republican Attorneys General challenge issues such as the Affordable Care Act in Court, and in the case of N.F.I.B. v. Sebelius, the leader of the Judicial Crisis Network herself, Carrie Severino, writes an amicus brief—co-signed by multiple Republican senators, including Mitch McConnell and Marco Rubio—against the Affordable Care Act. And which justice is now deciding a case about the Affordable Care Act? The same justice that the foundations had nominated.

These foundations provide funding for Leo’s Federalist Society to encourage the President to select judicial nominees who will rule favorably for the interests of the foundations’ anonymous donors. The foundations also provide funding to organizations such as the Judicial Crisis Network to campaign on behalf of the conservative Supreme Court nominees. Finally, the foundations fund legal actions and amicus briefs presented in front of the same Supreme Court Justices they had nominated and supported. Dark money from these foundations infiltrates every step of the judicial process: from who sits on the Supreme Court to which cases get placed on the docket, down to even who writes and signs the amicus briefs.

However, Republicans are not the only ones to blur the lines between politics and the judiciary system. The Sixteen Thirty Fund, described as the “left’s counterweight to the Judicial Crisis Network,” is also channeling dark money into the Supreme Court confirmation process. The organization “steers money from secret donors to projects it fiscally sponsors, effectively letting them operate without a paper trail.” Fix Our Senate, a project of Sixteen Thirty Fund, has recently launched an ad-campaign addressing the Supreme Court vacancy. Similarly, another umbrella organization under the Sixteen Thirty Fund, Demand Justice, pledged to spend $10 million to attempt to block Justice Barrett’s nomination and confirmation. Supreme Court Voter, a project of Demand Justice (and by extension, the Sixteen Thirty Fund), launched a $2 million advertising campaign targeting voters in competitive states. 

This shroud of dark money allows individuals and corporations to threaten the very tenets of American democracy, as we see the influence on the Supreme Court with the recent nomination and confirmation of Justice Barrett.  The landmark court case Citizens United v. F.E.C. gave corporations, nonprofits, and labor unions the power to spend unprecedented amounts of money to influence elections through advertisements and media campaigns. The consequences of this lack of transparency, as Senator Whitehouse warns, will knock down the civil jury, weaken regulatory agencies, and restrict voting rights—all institutions needed to curtail the power of big corporations and return power to the people. Although legislation like the DISCLOSE Act has attempted to rectify the issues of Citizens United, it has not been passed.

Both Democrats and Republicans must accept that the Supreme Court, like the other branches of our government, will always be political. When over 300 million self-interested Americans give nine individuals the power to decide their rights and powers based on a legal document filled with ambiguity and vagueness, of course politics will be involved. But the main issue with the Supreme Court, the same issue that plagues our Congress, is not even hyper-partisanship (although this is an issue)—it is the power of outside influence on our government. 

Cases presented to the Supreme Court revolve around power and wealth: who will lose influence if LGBTQ+ rights are affirmed, and who will lose money if health care becomes more affordable, and perhaps eventually a public good? Congress has the power to pass and block legislation that expands and restricts the power of big corporations, often at the expense of the everyday Americans these representatives have promised to serve. The President appoints individuals to the executive branch who oversee the regulation—or deregulation—of big industries.

Politics is no longer the struggle between everyday Americans with different interests, but a “puppet theater” conducted by the powerful and wealthy, who hide behind dark money. Unless we demand greater transparency and accountability from these individuals and corporations, our courts, laws, and leaders will only become more deeply entangled in this web of corruption and greed, and we will stray further away from a government of the people, by the people, and for the people.

Annie Tan is a staff writer at CPR and a sophomore in Columbia College studying Political Science. She is from New York City.