Dark Money Fuels GOP's Capture of U.S. Courts

      Money has long been recognized as the mother’s milk of electoral politics, in the phrasing of the legendary California politico Jesse Unruh. Now, for at least the past three years, money has also been the mother’s milk of judicial politics in the right-wing’s partial capture of the Supreme Court and the federal judiciary.

      A detailed report by three Democratic senators — New York’s Chuck Schumer, Michigan’s Debbie Stabenow, and Rhode Island’s Sheldon Whitehouse — released last week [May 27] untangles the web of dark money-funded organizations linked to the conservative-libertarian Federalist Society that have helped Republicans confirm two Supreme Court justices and a near record number of life-tenured federal judges during President Trump’s time in office.

      The impact of the mostly secretive spending by far-right legal advocacy groups can be seen most clearly in the undisclosed sources of the six- and seven-figure ad buys by the Judicial Crisis Network (JCN) in regard to the three most recent Supreme Court nominations. JCN, with offices in the same building that houses the Federalist Society, spent $7 million to help bottle up President Obama’s nomination of Judge Merrick Garland to the Supreme Court and then $10 million in support of Trump’s two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh.

      If the group had spent that money in support of candidates for elected federal office — Congress or the presidency — federal campaign finance law would have required full disclosure of the donors to help the public watch out for undue influence by moneyed interests. Instead, Gorsuch and Kavanaugh took the bench, after historically narrow confirmations in the Republican-majority Senate, without any public accounting of the debts that they may owe to  corporate fat-cats or ax-grinding ideologues of the far right.

      One can be sure, however, based on their public appearances at the Federalist Society’s gala dinners in Washington shortly after their respective confirmations that Gorsuch and Kavanaugh are both fully aware of the gratitude they owe to their friends and supporters from the confirmation fights. When he spoke at the black-tie dinner in November 2018, Gorsuch declared that his confirmation showed that “a committed originalist and textualist” can be confirmed to the Supreme Court — a pledge that brought hearty applause from the committed originalists and textualists in the audience.

      A year later, Kavanaugh, fresh from the painful confirmation fight marked by sharply disputed charges of sexual misconduct from his high school days, appeared at times to be choking up during a speech that he said was built on a single theme: gratitude. “There’s a saying that adversity introduces a man to himself,” he told the black-tie audience at Washington’s Union Station, “it also reveals your true friends.”

      The Democratic senators’ report — titled, “Captured Courts: The GOP’s Big Money Assault On The Constitution, Our Independent Judiciary, And The Rule of Law” — tells at least part of the story about the sources of the Federalist Society’s money: $20.7 million in donations in 2017. A major chunk, $5.5 million, came from a group, Donors Trust, linked to the fiercely right-wing Koch brothers, and another $2.4 million from private foundations or trusts controlled by wealthy families, some with industry ties. The U.S. Chamber of Commerce, a frequent amicus in business-related cases at the Supreme Court, chipped in $50,000; and several big corporations added five- or six-figure contributions.

      The Federalist Society disclaims any policy-related advocacy, but it is unsurprising that with funding sources such as these that the society, its speakers, and now its scores of federal judges give scant regard to racial justice, environmental protection, consumer protection, or workers’ rights. In short, the society is a partisan advocacy group, its protestations to the contrary notwithstanding.

       “[D]ark money is a uniquely pernicious threat when deployed to capture the institution in which fairness and equality under the law matters most: our courts,” the Democratic senators state in their report. “When dark money is deployed to capture seats on the federal courts, the effects can last for generations.”

      Indeed, with Gorsuch and Kavanaugh both in their 50s, their confirmations appear all but certain to lock in a conservative, Republican majority on the Supreme Court for another decade unless Justice Clarence Thomas decides, improbably, to retire while in good health. Meanwhile, Trump has been allowing the Federalist Society, and its longtime leader Leonard Leo, to take the lead role in vetting nominees for lower federal courts.

      With seven months remaining in his four-year term, Trump has already installed a near-record 194 judges on federal courts — just below President Jimmy Carter’s record 208 judges at this point in his one-term presidency. Trump’s judges include 51 appointed to the influential federal courts of appeals: nearly one-third of the total number of judges on the intermediate-level circuit courts. The Senate’s Republican leader, Kentucky’s Mitch McConnell, who slowed action on Obama’s judicial nominations in his final year in office, has fast-tracked Trump’s judicial nominations and is vowing now to “leave no vacancy behind” by the end of Trump’s time in office.

      In the Trump era, the blatant politicization of federal judicial appointments, in contrast to the relative bipartisanship through most of U.S. history, may seem the least of his offenses against political and constitutional norms. But the senators conclude by underscoring the long-term threat to democracy. “It is time for America to reckon with the reality that our courts are being captured,” they write. “Nothing less than our democracy is at stake.”

Thomas's 'Theories' Poses Risks for Justice

      Supreme Court Justice Clarence Thomas recalls today that he viewed court-ordered busing in school desegregation cases in the 1970s as flawed and wrong-headed and still does. Interviewed for a hagiographic documentary Created Equal, Thomas told filmmaker Michael Park that as a student in the Boston area, he saw no purpose in busing black kids from Roxbury to white schools in other neighborhoods that were in his view no better than the schools in the black neighborhoods.

      The flaw, Thomas explained, lay in the “theory” that pro-busing advocates and judges had adopted with no appreciation of its actual consequences for the people involved. “Theory … add people,” Thomas explained in the film, with evident contempt.

      As Supreme Court justice over the past 30 years, however, Thomas has fallen victim to the same error: he has been single-mindedly committed to theories, original meaning and color-blind Constitution, with no regard for the ill effects his theories would have on real people, in real cases. Thomas’s admirers, out in force over the past few weeks, view his single-mindedness as judicial integrity rather than for it is: jurisprudential arrogance and indifference to justice.

      In an online webinar sponsored by the conservative Committee for Justice, for example, Ralph Rossum, a professor at Claremont McKenna College in California and author of a Thomas biography, cited favorably Thomas’s dissent in his first term on the Court in an otherwise unremarkable prison conditions case. The 7-2 decision in Hudson v. McMillian (1992) followed and somewhat expanded prior decisions allowing prison inmates to sue prison guards and officials excessive physical force under the Eighth Amendment’s Cruel and Unusual Punishments Clause for excessive physical force.

      Thomas called for discarding the precedents on the ground that the Eighth Amendment applied only to court-ordered punishments, not to prison discipline or other conditions.  Thomas’s argument persuaded Justice Antonin Scalia to join the dissent. If his view had prevailed —  no justice has picked it up since — real-life prisoners (‘people”) would have less protection today against excessive force.

      It bears noting that only a few months earlier, Thomas had assured the Senate Judiciary Committee that he had no plans to vote to overturn precedents if confirmed to the Supreme Court.  “I have no agenda to change existing case law,” he told the senators. Whatever lies he may have uttered in denying Anita Hill’s accusations of sexual harassment, Thomas’s professed devotion to stare decisis was at best dissembling, if not outright dishonesty. Quite likely, he would not have been confirmed had he truthfully acknowledged his limited respect for legal precedent.

      Indeed, Thomas’s dissent in the prison conditions case was not the only or the most consequential of his votes to overturn precedent during his first year on the Court. He joined in dissent at the end of the term with three other justices – White, Rehnquist, and Scalia – by voting in Casey v. Planned Parenthood (1992)  to overturn the landmark reproductive rights decision, Roe v. Wade. Had Thomas’s view prevailed, real-life women (“people”) would have had their liberty curtailed and would today have less individual freedom.

      Moving forward, the liberal Court watcher Jason Ryulander counted in 2011 more than 30 cases in which Thomas had called in concurring or dissenting opinions for overturning well-settled precedents. His admirers especially praise his stout insistence on a “color-blind Constitution” that, in Thomas’s estimation, prohibits any preferential consideration of race in admissions at selective colleges and universities.

      Thomas’s view is completely ahistorical. The congressional framers of the Fourteenth Amendment and its Equal Protection Clause created, in the interest of racial justice under law, the ‘Freedmen’s Bureau,’ with the specific mission of helping emancipated African American slaves to find productive lives and assume roles as free and equal citizens. Thomas remains a dissenter in calling to overturn the affirmative action decisions; if his views were to prevail, black and brown students (“people”) would have fewer opportunities than they enjoy today to gain admission at elite colleges and universities.

      His supporters note, however, that Thomas has been able to help move the Court on some occasions. In one notable instance, Thomas argued in a separate opinion in a Voting Rights Act case in 2009 to scrap the preclearance requirement imposed on states and localities with a history of racial discrimination. Four years later, Thomas was part of the five-vote majority led by Chief Justice Roberts  in Shelby County v. Holder (2013) that in fact nullified the preclearance requirement. The result was to free states such as Texas, among others, to enact new election laws and procedures that limited access to voting  for many voters (‘people”), with disproportionate impact on the poor and on minority voters.

      Thomas has also called for reconsidering decisions that prohibit race-based peremptory challenges by lawyers in civil or criminal cases. Thomas took that position most recently in dissenting from the 7-2 decision in Flowers v. Mississippi (2019) to grant a black defendant a new trial because of the white prosecutor’s use of peremptory challenges to exclude blacks from the eventual jury. Had Thomas’s view prevailed, Flowers — a real-life defendant, wrongly convicted — would still be in prison today, rather than out on bail awaiting the state’s decision whether to retry the case without racial discrimination.

      Park’s film, funded by far-right foundations, gave Thomas’s admirers the occasion to spin the story that the supposedly underappreciated justice had suddenly emerged as “a symbol of Trump era conservatism” and “a model for a new generation of lawyers.” Reporters who fell for the spin included Nicholas Casey, the New York Times reporter on the conservative beat, who suggested in a fawning, full-page article that Thomas may be on the way to becoming “a pop-culture icon” akin to his Supreme Court colleague, the “Notorious R.B.G.” Lady Justice weeps at the prospect.

In Prisons, Coronavirus Precautions Found Lacking

      Christopher Marlowe, an inmate at the Rayburn Correctional Center in southeastern Louisiana, suffers from diabetes — an underlying condition that makes him especially vulnerable to the risk of contracting COVID-19 from the novel coronavirus that is sweeping through prisons nationwide. Marlowe has been in federal court for the past two years, claiming inadequate medical treatment, and now is seeking more urgent relief in the form of stricter public health measures to protect himself and other inmates from the risk of coronavirus contagion.

      The federal judge in Marlowe’s case is one of two, the other in Texas, to have ordered prison officials last month to do more to protect inmates from the coronavirus. In both cases, however, a three-judge appeals court panel put the injunctions on hold with seemingly little concern about the urgency of protecting the inmates’ health.

      The judge who heard Marlowe’s testimony via teleconference along with the prison warden’s explanation of the protective measures under way concluded last month [April 23] that the prison had done too little to limit the spread of the virus. In a 14-page memorandum opinion, Judge Brian Jackson noted Marlowe’s testimony that water fountains and microwave ovens are not wiped clean and disinfected on a regular basis. Jackson also noted evidence that social distancing guidelines are not followed and are inevitably breached because of narrow corridors and lack of spacing the telephones for inmates’ use.

      Jackson acknowledged Warden Robert Tanner’s testimony that the prison staff had taken “some steps to deter the spread of the virus.” But the judge faulted Tanner for failing to require prison staff and orderlies to wear masks and other personal protective equipment.

      Marlowe testified that he sleeps in a 78-inmate dormitory, an arm’s length away from the prisoner in the adjoining bunk. At the outset, Jackson noted that Marlowe, because of his diabetes, was “extremely susceptible to serious, potentially fatal, complications should he contract COVID-19.” The judge also noted that 23 inmates had been found to have contracted the virus at the time of the hearing. With that evidence, Jackson concluded flatly that the “interests of justice demand that the court take emergency action”—specifically, ordering the prison to institute all the health measures recommended by the state.

      The fate of Jackson’s order now rests with the U.S. Supreme Court after a three-judge appeals court panel put Jackson’s injunction on hold. Emily Posner, the New Orleans attorney representing Posner, filed an application last week [May 14] asking the justices to lift the stay issued by the Fifth U.S. Circuit Court of Appeals on April 27. Marlowe’s case, Marlowe v. LeBlanc, 19A1039, is the second coronavirus-related prison suit to reach the Court within a matter of weeks; the previous case, Valentine v. Collier, 19A1034, from Texas, followed a similar path with a district court injunction ordering Texas officials to institute more stringent protective measures and then an appeals court decision to stay the injunction.

      In the Texas case, U.S. District Court Judge Keith Ellison noted such shortcomings as the lack of hand sanitizers and then detailed more than a dozen steps for the officials at Wallace Pack Prison in southeastern Texas to institute to protect the geriatric inmates at the facility from what he called the “grave” dangers from the virus. Ellison noted in his April 16 decision that one inmate at Pack Unit had already died from Covid-19 and that Covid-19 was “spread[ing] like wildfire” in prisons in Texas and throughout the country.

      The state asked the Fifth Circuit to stay Ellison’s injunction. The stay panel consisted of two Republican appointees — the veteran conservative Edith Jones and a Trump-appointed conservative Andy Oldham — and one Democratic appointee, Stephen Higginson. In an unsigned opinion granting the stay on April 22, the panel noted that some of Ellison’s ordered steps went beyond guidelines adopted by the federal Centers for Disease Control and Prevention (CDC). The panel also noted that the Prison Litigation Reform Act, adopted in the 1990s, requires that any court-ordered remedies in prison condition suits be “narrowly drawn” and “the least intrusive means necessary to correct the harms.”

      Attorneys for the inmates asked the Supreme Court, in effect, to reinstate Ellison’s injunction by staying the appeals court’s stay. But the Court turned down the request in an unsigned order issued last week [May 14]. In a seven-page opinion, Justice Sonia Sotomayor appeared to concede that the inmates had failed to make the showing needed to undo the appeals court’s stay, but went on to explicitly criticize the Fifth Circuit’s reasoning. “[T]he Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates,” she wrote. Sotomayor added later that the appeals court “may have acted outside its authority in refusing to defer to [the district court’s] factual findings.”

      Sotomayor closed by admonishing the appeals court to continue to monitor the litigation and to consider modifying its stay. The same panel, however, had already cited its ruling in the Texas case as authority for staying Judge Jackson’s order in the Louisiana case in an order issued on April 27. “It has long been said that a society’s worth can be judged by taking stock of its prisons,” Sotomayor wrote in a concluding passage. “That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.”