S2, Ep 6 | False Friends of the Court

Welcome back to Damages. I'm Amy Westervelt. Today, another super wonky legal thing that I swear to God is fascinating. Amicus Briefs or Amicus Briefs? It's Latin and I hear lawyers pronounce it both ways. If you know the correct pronunciation, please just share it with me. At any rate, amicus or micus is Latin for friend.

So these are also sometimes referred to as friend of the court briefs. And way back before the internet and before large accessible libraries even. Judges and their clerks couldn't so easily look up other cases that were relevant to the case at hand. So lawyers or other experts would submit these briefs that would point out similarities between the cases they were hearing and previous cases.

It evolved over the years to include expert briefs more generally, but in the last decade or so, it has morphed into something else entirely. Just a mountain of anonymously funded briefs pushing particular agendas. Especially since the passage of Citizens United in 2010, which enabled endless amounts of anonymous corporate funding.

There's just been an explosion. Now, as you might assume, the Supreme Court does have disclosure rules about these things. Of course it does. But they're ridiculous! You only have to disclose funding if it went toward the actual, hands on, manual production of the brief. So like, if Charles Koch paid someone to type that brief… You have to disclose it, but if you funded an entire amicus program at your think tank, you don't. Just to give you a sense of how rapidly this is exploding right now, Amici filed 781 briefs in the 2014 Supreme Court term. That was a more than 800 percent increase from the 1950s and a 95 percent increase from 1995. And the number of filings has just continued to rise since then. In the court's 2019 term, Amici filed 911 briefs. The 2020 term featured almost 940. Some high profile cases will even draw more than 100 amicus briefs. And there's another disturbing trend. Amici's showing up at the certiorari. Stage or cert. That's the phase when the Supreme Court is being petitioned to hear a case or reject it. Between 1982 and 2014, the percentage of petitions with at least one cert stage amicus more than doubled. When I first started looking into this, it really didn't make sense because I thought, is any judge really gonna be surprised? Or swayed by a brief from the Cato Institute that says, We don't think you should regulate business. No. But here's the thing. They're not swayed by the organization. They're swayed by the attorney representing them. And any good amicus program worth its dark money. knows which lawyers will get which judge's attention. At the cert stage, these connected lawyers can improve the chances of the court viewing the case as cert worthy. At any stage, seasoned members of the Supreme Court bar Add credibility to amicus briefs. The late Justice Ruth Ginsburg actually talked about this in a 2008 interview. She said clerks often divide the amicus briefs into three piles. Those that you can skip entirely, those that should be skimmed. And those that should be read in full. If the attorney submitting the amicus brief has significant experience before the court, it would be more likely that their brief would be placed in a higher priority pile. So it is actually an effective strategy. And more and more Supreme Court justices are actually citing amicus briefs in their rulings. From 2008 to 2013, the Supreme Court cited amicus briefs. 606 times in 417 opinions. Between the 1994 and 2003 terms, the court's majority opinion referenced an amicus brief only 38% of the time. And in earlier terms, like 1946 to 1955, it was less than 20% of the time. So it's gone from about 18% in the 50s to more than 100% today. Another tactic folks will use with amicus briefs is to gather so many of them that it gives the justices the sense that there's some kind of consensus behind one side or the other. Of course, what all of this points to is the ability of people with deep pockets to tilt the courts in their favor. You would think that the Supreme Court would just improve its disclosure requirements and be done with it. But for some reason, it hasn't done that. So in the meantime, Sheldon Whitehouse, the senator from the great state of Rhode Island, has proposed legislation that would force the issue. He's here today to walk us through that legislation and why the Supreme Court resists transparency and how this whole amicus thing is really messing with democracy. That's coming up after this quick break. You press on the Supreme Court to take action. And their first response is to pretend that there's no problem. And then you keep pressing and, um, ultimately within the judiciary, somebody realizes, okay, there actually is a problem. And, um, they begin to do some work on it. I don't know whether that's quietly blessed by the Supreme court or despite. The Supreme Court, um, but it's happened twice. It happened first on amicus disclosure where the Supreme Court said nothing to see here, not a problem go away. But then the judicial conference said, okay, this is actually a really serious question. And they set up a special. Committee to look into it and judge Millett, um, as a part of that discussion in the public, uh, meeting, I guess, said, Hey, we really got to know who the power is behind the throne on these amicus briefs and she's obviously respected DC circuit court of appeals judge. So, um, despite the Supreme court's indifference that has been taken up within the federal judiciary. And then recently the. Um, peculiar failure of the court to disclose, um, gifts in the form of so called personal hospitality, which is read by the Supreme Court does not require that you even know the person who's giving you personal hospitality. Not exactly the customary definition of the word personal. Um, but again, um, I wrote a letter asking for an explanation to all the different circuit courts of appeal. And after ignoring it for quite a long time on the eve of our hearing, uh, the circuit courts sent in a joint response. Um, I think again through the judicial judicial conference saying, okay, you're right. This is serious. And we're going to have a group of people look at it. Once again, I don't know if that is despite the Supreme Court, or because they got a quiet signal from the Supreme Court saying. You better, you better look into this White House isn't going away, right? That's the place that we've been through the same routine with them, which is they pretend that everything is fine. And it's only when you persist that somebody then acknowledges, no, it is not fine. It is really wrong. And now we have these, you know, ongoing reviews. But it would be far better if the court from the get go took this seriously and took it up. You know, of its own volition and didn't put us through all these delays and prevarications. Mm hmm. Mm hmm. Do you think, um, there's a sense that, that, uh, the threat of Congress legislating this versus them setting their own rules kind of drives it along as well? Like makes them take it more seriously? Lord knows what the… What the reason is for them to be so obtuse about what seemed to be unbelievably obvious Ethics and conflicts problems. Yeah But I do think that knowing that congress isn't going away has created Some faint whiff of accountability at least in the judicial conference if not in the supreme court Um, it seems to me and please correct me if i'm wrong But it seems to me like in a lot of these cases the justices themselves Probably do have some inkling of who's funding what but this would provide more transparency for the public Is that is that accurate or or do you think the judges themselves are often in the dark, too? Um, to the extent that Supreme Court justices are in the dark about who's behind some of these right wing amici, that is a case of willful blindness because they often, they often go and sit with these groups and with their funders at Federalist Society dinners when all the drums come together. Right. So, if, if If you can't figure that out as you're sitting at the Federalist Society Gala at the table with front group organizations and those who fund them, then you have a problem of perspicacity on becoming of a judge. Yeah, yeah. But you think it would, I mean, it seems to me like it would. The problem is if everybody knew, then the story would get far worse for the court. Right. Because what we have right now is. These little flotillas of right wing amici show up, they ask the court to do X, the court almost invariably does X, or at least some part of X, and there's a stunning win rate. And if it were public, who was behind those briefs, it would make the problem of the win rate look even worse. Right. It would cross reference likely with funders of Republican senators who participated in packing the court with these right wing operative judges, and it would trace back to entities funding the selection of these very justices. Right. So this is a, they know enough to know that this is a world in which they don't like, they don't want the information to get out there because of their own problems. Right, right. Um, I know I read in, in your, I read, I was just telling Megan before you got on that I read your, um, Yale Law Journal. Um, article again this morning, and I know you noted a few different groups that show up a lot. Are there any particular attorneys who, um, are kind of like popular picks of these groups to, um, to be counsel on these briefs? Yes, there are. And I just don't have them top of mind, but there are some. You know, pretty regular frequent fires in the legal regime around this. The most obvious one who comes to mind right now in the wake of this. Wretched Cruz versus Federal Election Commission decision is Don McGahn, right? Don McGahn, who picked the last three judges or was told who to pick by the Federalist Society, was what was White House counsel during their selection. Let's put it that way. And Mitch McConnell, who orchestrated their confirmation through extraordinary obstacles, like for instance, faking an FBI background investigation, faking an FBI supplemental background investigation for Kavanaugh. Um, they're on the same brief telling the court what to do. And gee, big surprise, the court does as instructed. Right. Right. I mean, if you want to, if you want to look at a like quick payback loop. FEC is like the perfect payback loop. That case in general is pretty stunning on multiple levels. But also totally predictable because the, um, federalist society justices are absolutely determined to. Expand the role of dark money for very obvious, but also very unfortunate political reasons Um, so I wanted I know you have to go soon, but I had one more question just in terms of um I'm assuming that there are various dark money funded efforts against These disclosures have you come up against any? Um, I don't know obvious kind of um dark money funded opposition to improving disclosure and transparency Uh, yes. I mean, there's a whole, um, right wing media operation to try to discredit it, um, and to point out that it's, um, hypocritical of Democrats to play by the rules and at the same time want to clean up the rules. Mm hmm. That's not an actual hypocrisy, but they frame it as one as part of their narrative. Right. So you certainly see that in action. And of course there's this mad rush to build a constitution, a mad rush for the court to build a constitutional right to dark money. We'll get ahead of our legislation requiring disclosure of dark money. Right. And if you want to go back to amici, the case in which they did that, I mean, it's just a beauty of a case. It's called Americans for Prosperity Foundation versus, uh, Bonta at the end of the day went through a number of, uh, respondents as the officials changed in California, but Americans for Prosperity Foundation, which is the 501C3 twin to the Koch Brothers 501C4 battleship, Americans for Prosperity, with massive overlap between the two, same address, overlapping boards, same staff. You could pierce the corporate veil between the two with a banana. Yeah. And they pick Americans for Prosperity Foundation as the petitioner to try to get this dark money constitutional right. To have a foundation and when they do that, 50, at least 50, it's, it's actually more, but it gets harder and harder to prove as you get into these small groups with no records, but at least 50 dark money amici showed up at the search your stage. At the cert stage to push the Supreme Court to take up this case. And by the way, it lurked for a very long, strange period of time at the Supreme Court. And they only took it up once they had Judge Barrett giving them six. And they only took it up literally two days. After the attack on the Capitol, when everybody in America was looking elsewhere. Wow. January 8th, they took the case up. So they've got the case of the twin of the Koch brothers, political battleship supported by 50 dark money front groups that they take onto their docket in the shadow of the attack on the Capitol. And sure enough, they create a constitutional right to dark money for this group. Right. Right. I've been looking at this with respect to the, um, the climate cases because the, the very specific argument they're making about political speech in those cases is, um, I don't know. It keeps jumping out to me as like a broadening of the Citizens United stuff. And I think they're going to try to get it to the Supreme Court and blur the line between fraud and lying. Absolutely. Absolutely. I think if you look at the tobacco fraud case. That the department of justice one, it makes an extremely good template for a climate fraud case against the fossil fuel industry. The Supreme court never took it up, but DOJ one big, you know, just devastating decision by the DC district court, which was powerfully upheld in a unanimous decision by the DC circuit court of appeals and the Supreme court declined. To review it. So that's floating out there as a template and a way to end corporate fraud. But just you wait for these guys to say that, Oh, well, when it's a petition in government, right? Exactly. Yeah. Then there's special protection here in the government of all people is in the worst possible position to police fraud against itself because they treat government as an interested party, rather than as. The popular summation of the public will. Right. So yeah, you could see that, you could see that coming just as clearly as you could see the AFPF case coming. Yeah. Yeah. Oh, no problem. Go vote. Thank you so much for your time and I'll, um, I'll keep you guys posted. Keep on this. There's lots of good material and we haven't been paying anywhere near enough attention. So thank you. Thank you. Thank you. Yeah. Thanks a lot. Have a good rest of your day. Bye bye. That's it for this time. Thanks for listening and we'll see you next week. Damages is an original critical frequency production. Our editor and senior producer is Sarah Ventry. Mixing and mastering by Mark Bush. The show is written and reported by me, Amy Westerveld, with additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton of the First Amendment Project. Our theme song this season is Bird in the Hand by Fournone. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the Feil Foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends. Thanks for listening and we'll see you next time.