Yesterday, Politico published an extensive analysis looking at how conservative kingpin Leonard Leo’s dark money network has and continues to use amicus briefs to influence the decisions on pivotal Supreme Court rulings.
“This explosive report shows the extent to which Leonard Leo and his dark money network have been influencing life-altering Supreme Court cases with shady, legally dubious judicial lobbying,” said Tiffany Muller, President of End Citizens United. “The people’s voice should be at the center of our judiciary system and government—not conservative special interests—which is why Congress must swiftly pass strict and enforceable ethics standards and transparency laws to root out the corruption in the Supreme Court.”
Politico: ‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives
Heidi Przybyla
12/03/23
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A POLITICO review of tax filings, financial statements and other public documents found that Leo and his network of nonprofit groups are either directly or indirectly connected to a majority of amicus briefs filed on behalf of conservative parties in seven of the highest-profile rulings the court has issued over the past two years.
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It is the first comprehensive review of amicus briefs that have streamed into the court since Trump nominated Justice Amy Coney Barrett in 2020, solidifying the court’s conservative majority. POLITICO’s review found multiple instances of language used in the amicus briefs appearing in the court’s opinions.
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The Federalist Society, the 70,000-member organization that Leo co-chairs, does not take political positions. But the movement centered around the society often weighs in through many like-minded groups. In 15 percent of the 259 amicus briefs for the conservative side in the seven cases, Leo was either a board member, official or financial backer through his network of the group that filed the brief. Another 55 percent were from groups run by individuals who share board memberships with Leo, worked for entities funded by his network or were among a close-knit circle of legal experts that includes chapter heads who serve under Leo at the Federalist Society.
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Like George’s view of abortion as a crime throughout history, arguments in amicus briefs often find their way into the justices’ opinions. In major cases involving cultural flashpoints of abortion, affirmative action and LGBTQ+ rights POLITICO found information cited in amicus briefs connected to Leo’s network in the court’s opinions.
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But now, with Leo’s network having attained power on the right, some legal experts bemoan them as ways for activists to push for more ideologically pure or sweeping judicial decisions.
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For instance, Leo and George are board directors at the Ethics and Public Policy Center, which filed amicus briefs in support of the restrictive Mississippi abortion law in the Dobbs decision and in the case in which the court found a Colorado website designer could refuse to create wedding websites for same-sex couples. They are also both on the board of the Becket Fund for Religious Liberty, which also filed briefs in those cases.
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Combined, the entities have taken in millions of dollars from Leo’s primary aligned dark money group, the 85 Fund, including $1.4 million to the Ethics and Public Policy Center in 2021. Leo himself received the Canterbury Medal, Becket’s highest honor, in 2017.
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In June, when the court rejected affirmative action at colleges and universities across the nation, there were at least three instances in which Justice Clarence Thomas used the same language or citations from amicus briefs of filers connected to Leo, whose friendship and past business relationship with Thomas’s wife, Virginia Thomas, who is known as Ginni, have been reported.
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Just weeks before the affirmative action decision was announced, the court delivered a blow to LGBTQ+ rights in deciding a web designer with religious objections to same-sex marriages can’t be legally obliged to create speech she opposes. The justices were divided 6-3 between Republican and Democratic appointees.
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A Christian nonprofit aligned with Leo’s network, the Alliance Defending Freedom, represented the Colorado-based plaintiff. One issue before the justices was whether the case constituted an actual dispute between the designer and the Colorado Civil Rights Commission or was generated simply to undermine LGBTQ+ rights.
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ADF is funded by Leo-aligned DonorsTrust, among the biggest beneficiaries of Leo’s network of nonprofits.
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In at least two instances in Justice Neil Gorsuch’s majority opinion, he used the same language or citations from amicus briefs submitted by groups in Leo’s network, all of which endorsed the view of an appeals court judge in the case, Timothy M. Tymkovich, that “taken to its logical end,” allowing Colorado to require that web designers produce content related to same-sex weddings would permit the government to “regulate the messages communicated by all artists.” In his opinion, Gorsuch cites the same quote, arguing the result would be “unprecedented.”
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The overall concentration of conservative amicus briefs in the LGBTQ+ rights case tied to Leo’s network is among the highest, at about 85 percent, of any of the seven cases reviewed.
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The two pillars of Leo’s network, The 85 Fund and the Concord Fund, gave $7.8 million between July of 2019 and 2021 to organizations filing briefs on behalf of 303 Creative LLC.
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The numbers of amicus briefs on both sides of major cases grew substantially after 2010, which happened to be when the court’s Citizens United ruling ushered in a new era of “dark money” groups like the Leo-aligned JEP.
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Across the seven cases and hundreds of briefs reviewed by POLITICO — in addition to abortion, LGBTQ+ rights and affirmative action, the cases covered student loans, environmental protection, voting rights and the independent state legislature theory — the conservative parties had a slight advantage, accounting for 50 percent of the amici curiae.
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Given the opaque nature of Leo’s network, it’s difficult to tally up just how much money has been spent on conservative legal advocacy linked to him. Yet just the two leading groups in his funding network, The Concord Fund and The 85 Fund, spent at least $21.5 million between 2011 and 2021 on groups advocating for conservative rulings.
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Tax-exempt nonprofit groups must provide the names of their officers and board members on their annual IRS forms. In 15 percent of the briefs reviewed, Leo is a member of leadership, for instance a board member, trustee or executive representing the filers — or the filers received payments from one of Leo’s groups.
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Expanding the circle to include executives who’ve previously worked for a Leo-aligned group, shared board memberships with him, led Federalist Society chapters or have other professional ties to him, Leo’s network is connected to 180 amicus briefs, or a majority.
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A number of the groups associated with these individuals have also received funds from DonorsTrust, which is the biggest beneficiary of Leo’s aligned Judicial Education Project, having taken in at least $83 million since 2010.
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While POLITICO’s analysis relies heavily on annual forms filed to the IRS, its approximations may underrepresent Leo’s influence over opinions presented to the court. That’s because the IRS does not require nonprofit groups to list members of advisory boards, and groups filing as churches don’t have to disclose their leadership. Leo’s organizations also route tens of millions of dollars through anonymous donor-advised funds like DonorsTrust, making it unclear where it is going.
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The campaign to fund and promote amicus briefs is but one facet of Leo’s broader advocacy architecture built around state and federal courts.
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But it’s of special relevance at this moment in the court’s history. Since Leo’s handpicked justices solidified the court’s conservative supermajority in 2020, they are agreeing to hear cases advanced by his allies and ruling in favor of many of his Christian conservative priorities.
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