Statement for the Record, Hearing on “What’s Wrong with the Supreme Court: The Big‐​Money Assault on Our Judiciary”

Who Votes in Lockstep¹

Ever since Justice Anthony Kennedy announced his retirement in 2018, commentators have prophesied that President Trump’s replacement of that moderate jurist would lead to a conservative majority running roughshod over core liberal concerns. Chairman Whitehouse had already expressed concern about the “Roberts Five” — Chief Justice John Roberts and the then‐​four other Republican‐​appointed justices — which would presumably be “advancing right‐​wing and corporate interests” even more.² That’s why opposition to the milquetoast establishmentarian Brett Kavanaugh was so fierce, even before the 11th‐​hour sexual‐​assault allegations.

Many who opposed Justice Kavanaugh’s confirmation predicted that he would single‐​handedly overturned Roe v. Wade, but a funny thing happened on the road to apocalypse. Especially in petition rejections and other procedural votes on the “shadow docket,” he has demonstrated a pragmatic approach. His first term, which featured few big controversies, showed the liberal justices voting together much more than the conservatives.

There were 67 decisions after argument in the term that ended in June 2019. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 39 times. And of the 20 cases where the Court split 5–4, only eight had the “expected” ideological divide of conservatives over liberals. By the end of that term, each conservative justice had joined the liberals as the deciding vote at least once. Justice Kavanaugh himself voted as much with Justices Stephen Breyer and Elena Kagan as with Justice Neil Gorsuch.³ That’s the lowest level of agreement between two justices appointed by the same president serving in their first term together in modern history — yes, lower than Justices Clarence Thomas and David Souter in 1991–1992. Meanwhile, Obama‐​appointed Justices Kagan and Sonia Sotomayor were together in all the 5–4 cases in 2018–2019.

The following term, which ended in July 2020, showed a similar pattern. Although conservatives won a higher percentage of the 5–4 cases, the four Democratic‐​appointed justices — call them the “Ginsburg Four,” after Justice Ruth Bader Ginsburg — still voted as a bloc more than the five Republican‐​appointed justices.⁴ Most notably, Chief Justice Roberts “defected” on three key cases, involving LGBTQ rights, DACA, and abortion.

With Justice Amy Coney Barrett having now replaced Justice Ginsburg, Chief Justice Roberts is no longer the median vote, which means that it’s likely that his string of being the justice most often in the majority will come to an end. Still, it’s a safe bet that the Breyer Three will be together far more often than the Roberts Six.

That dynamic isn’t something that sprang up in the Trump era or with the Court’s newest personnel. In the 2014–15 term, with Justice Kennedy at the height of his “swing vote” power — the last full term before Justice Antonin Scalia’s death and resulting year‐​long vacancy — the four liberals stuck together in 56 of 66 cases, while the four conservatives voted as a unit in 43.

Even in 2013–14, when liberals and conservatives voted with their respective coalitions equally (54 times in 66 cases), 41 of those decisions were unanimous and there were only a handful of 5–4 rulings. In other words, when conservative justices vote together at the same rate as their liberal counterparts, it’s because the entire Court is united.

Speaking of politically fraught cases that end up 5–4, it’s notable that there’s never a question of how the liberal justices will vote. Speculation runs rampant over whether one of the conservatives will go wobbly — out of unpredictable moderation, minimalistic pragmatism, or idiosyncratic theory — but the liberals are guaranteed to please their ideological comrades.

Most famously, in 2012’s NFIB v. Sebelius, Chief Justice Roberts transmogrified the individual mandate into a tax to save Obamacare. Roberts did a similar thing twice in 2019, in cases regarding the census citizenship question (Department of Commerce v. New York) and judicial deference to administrative‐​agency reinterpretations of their own regulations (Kisor v. Wilkie). And again in 2020 in the aforementioned Bostock v. Clayton County (the employment‐​discrimination case where Justice Gorsuch wrote the 6–3 majority opinion), Department of Homeland Security v. Regents of the University of California (DACA), and June Medical Services v. Russo (abortion, going against his own previous vote on stare decisis grounds).

Such intramural fractures often reveal lively intellectual debates that one rarely sees on the left. For example, Justice Gorsuch has joined the liberals six times in 5–4 decisions, typically writing for the majority or concurring separately without adopting progressive reasoning. These have mainly been in criminal‐​law cases, where Gorsuch’s originalism shines through to the benefit of defendants in the same way Scalia’s often did — to the surprise of those who weren’t paying attention. Indeed, Gorsuch is rapidly becoming a libertarian darling even as Kavanaugh — and even Barrett — steers down the middle of the road.

In sum, if lockstep voting and a results‐​driven Court concern us, it isn’t the conservatives we should be worried about. Senators, journalists, and academics love decrying the Roberts Five (now Six), but it’s the Ginsburg Four (now Breyer Three) that represent a bloc geared toward progressive policy outcomes. To be sure, a reinvigorated conservative grouping may yet come to dominate the Court, but it hasn’t happened yet.

Last fall, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on quite similar to this one.⁵ Indeed, Chairman Whitehouse testified at the hearing in much the same vein as I expect today’s hearing to run.⁶ The idea is that the proliferation of “big money” has influenced judicial appointments and otherwise politicized the courts in ways that benefit big business (among other supposedly nefarious interests). “The sooner we clean up this mess,” Chairman Whitehouse concluded, the sooner courts can escape the grimy swamps of dark‐​money influence, and return to their place in the broad and sunlit uplands of earned public trust.“⁷

Accordingly, he and Senator Dianne Feinstein in the last Congress introduced the Judicial Ads Act, which, according to a press release announcing the proposed legislation, would:

• Require groups that spend more than $50,000 in a calendar year on advertisements related to federal judicial nominations to disclose donors who have given more than $5,000 to the group during that year and the preceding year.
• Require groups to disclose information about each advertisement related to a judicial nomination including the name of the nominee the advertisement is about.
• Require advertisements related to a judicial nomination to contain disclaimers — just like campaign ads — making clear the identity of the group funding the advertisement.
• Ban foreign nationals from funding advertisements related to a judicial nomination.⁸

Ironically, soon after the bill dropped, Chairman Whitehouse, along with Senator Sherrod Brown, spoke to the American Constitution Society on the topic of “Captured Courts: The GOP’s Big Money Assault on the Constitution, Judiciary and Rule of Law.“⁹ ACS described that event as covering “ways that progressive lawyers from across the country can help fight back against these blatant attempts to use the court to achieve right‐​wing goals.“¹⁰ The irony is that ACS itself fits the definition of a “dark‐​money group” that tries to influence judicial picks and decision making, taking in millions of dollars in donations from donors it doesn’t disclose.

Now, I don’t have a problem with ACS not releasing its donor list. By law, it doesn’t have to match the Federalist Society’s practice of listing all donors over $1,000 in its public annual report. And it shouldn’t have to do so if it doesn’t want to, because donor privacy is part of the freedom of association that’s so important to civil society and civic engagement. But those who support the Judicial Ads Act are hypocritical if they don’t condemn ACS — or, even more, Demand Justice or Alliance for Justice, whose sole raison d’être is promoting judicial nominees they think will achieve progressive goals and opposing those they think will not.

And yet Chairman Whitehouse has said that he’d be happy to take money from left‐​wing “dark money” groups.¹¹ Indeed, in 2018, liberal “dark money” groups — led by those managed by “dark money monster” Arabella Advisors¹² — outspent conservative ones for the first time, while reform hawks like Elizabeth Warren and Bernie Sanders had their own groups supporting their presidential campaigns.¹³ So maybe it’s not so much the “dark money” or “donor disclosures” that’s the problem but the ideology or partisan preference of those who are donating or speaking? Those on the left get a pass because they’re “promoting justice,” while those on the right are “an assault on our judiciary”?

Moreover, former Federal Election Commission chairman Bradley Smith explained that so‐​called dark‐​money groups — nonprofit public policy organizations, not political committees — are much less significant than they’re made out to be.¹⁴ Since Citizens United allowed nonprofits, labor unions, and corporations to spend on electioneering in 2010, those groups labeled as “dark money” have usually accounted for 3–5% of total campaign spending.¹⁵ From January 2019 through July 2020, however, that number was under 1%. FEC data shows that of the more than $6.2 billion spent on federal campaigns during that period, “dark money” only totaled about $20.8 million, which is 0.3% of the total.¹⁶

Setting aside that issue of efficacy, as well as the unequal treatment and viewpoint‐​based discrimination, the Judicial Ads Act threatens to complicate our already unworkable campaign‐​finance law by adding special rules for independent speakers who happen to speak about judicial nominations. Election lawyers must be rubbing their hands with glee at the prospect of advising clients on how to avoid certain “magic words” or litigating claims that some ad concerns judges. Would an ad saying that Joe Biden makes “the right decisions” about abortion or gun control qualify as a judicial‐​nominations ad? How about one imploring a senator to vote for “the talented people President Biden has chosen to implement his policies”? The Judicial Ads Act would invite the courts to police what can be said about their future colleagues and who can say it.

Because make no mistake: this bill is not about voter information or transparency, but is intended to chill speech. At a time when 62% of Americans are afraid to share their political views, when 32% (particularly well‐​educated Republicans) fear that disclosing their views could harm their careers — for good reason, as half of all strong liberals support firing Trump donors — should we enact more disincentives to political involvement?¹⁷ Another way to describe attacks on so‐​called dark money is as an attack on independent political speech and free association.

During the Civil Rights era, state governments attempted to force groups like the NAACP to disclose its membership lists. The Supreme Court stepped in and subjected such attempts to “the closest scrutiny.“¹⁸ Violations of the freedom of association must advance a compelling state interest and be narrowly tailored to that interest. The narrow‐​tailoring requirement prevents the government from infringing on constitutional rights when less restrictive means of achieving its goal are available. The Court requires “‘a fit that … employs not necessarily the least restrictive means but … a means narrowly tailored to achieve the desired objective,’ ” which applies “[e]ven when the Court is not applying strict scrutiny.“¹⁹ This rule reflects decades of First Amendment precedent in cases concerning both associational and non‐​associational rights.

Reducing the right to associate and speak anonymously would do profound damage in the current political climate. Times of political division bring attempts to silence political opposition, whether through direct government action or threats and harassment. The NAACP was subject to numerous attempts to force the organization to disclose its membership lists. In many cases, when individuals were discovered to be members of the NAACP, they quickly became targets of harassment, threats, and violence because of their affiliation with the group. By showing that “on past occasions revelation of the identity of its rank‐​and‐​file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,” the NAACP demonstrated that forcing disclosure of their membership lists was “likely to affect adversely the ability of [the NAACP] and its members” to engage in their constitutionally protected association and advocacy.²⁰

The Civil Rights Era was unique, but the right to private association is still vital. Groups advocating unpopular ideas face many of the physical, social, and economic dangers that the NAACP faced for decades. Donors and activists across the political spectrum have faced death threats, public harassment, and adverse economic actions because of their views and activities. In 2014, in a precursor to today’s “cancel culture,” Mozilla Firefox CEO Brendan Eich was forced to resign after it came out that he gave just $1,000 to the Prop 8 initiative that prevented same‐​sex marriages from being recognized in California.²¹ Since then, opponents of President Trump have used the internet to organize boycotts of companies because they or their officers donated to the president or other politicians who support him, or even said nice things about him.²² Last year, Rep. Joaquin Castro (D‑Tex.) tweeted a list of San Antonians who donated to the president, saying it was “[s]ad to see.“²³ Most seriously, in October 2018 a pipe bomb was placed in the mailbox of billionaire philanthropist George Soros, who “donates frequently to Democratic candidates and progressive causes” and who is often portrayed as a villain by the right.²⁴

In an era of increasing political polarization, protecting associational privacy becomes even more important. And when groups or individuals espouse unpopular or controversial beliefs, private association is critical. Supreme Court precedent is clear: no matter the level of judicial scrutiny, state actions that infringe First Amendment freedoms, such as the compelled disclosure of donor lists, must be narrowly tailored to the governmental interest asserted. Broader disclosures rules are only warranted where that interest outweighs the chilling of speech and potential for harassment and “cancellation.”

In all of these attempts to restrict First Amendment freedoms — not just the Judicial Ads Act, but also H.R. 1,²⁵ the DISCLOSE Act, and plenty of other “reforms” — I hear echoes of earlier times, with government officials facilitating and enabling private harassment (and worse). No wonder the most important case of this Supreme Court term involves protections of donors to nonprofit organizations, Americans for Prosperity Foundation v. Becerra. The challengers to an oppressive California disclosure law there drew 41 supporting amicus briefs, representing dozens of groups that run the ideological gamut, including the ACLU, NAACP Legal Defense and Educational Fund, Electronic Freedom Foundation, and my own Cato Institute.²⁶

On the last day of 2020, Cato filed an amicus brief in this Supreme Court term’s big property rights case, Cedar Point Nursery v. Hassid, which will be argued later this month. Cedar Point is a Fifth Amendment Takings Clause challenge to a California law that forces agricultural businesses to allow union organizers onto their property three times a day for 120 days of the year. We assert that such a physical violation of one of the key aspects of property rights — the power to exclude — warrants just compensation even if the taking is neither permanent nor continuous. And even if unionizing workers is a serious public need, unions have myriad ways to try to organize workers other than invading private property.²⁷

Well, last month it was the turn of California’s amici to file their briefs. One of those briefs was filed on behalf of five senators, led by Chairman Whitehouse.²⁸ You may recall that the chairman led a different group of senators on a brief in N.Y. State Rifle & Pistol Association v. City of New York, the Second Amendment case that was ultimately mooted out. “Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics,” he wrote ominously in that one.²⁹

In Cedar Point, Chairman Whitehouse doesn’t take aim at the Supreme Court itself, but instead targets the motives of petitioners and their amici, claiming that this is a self‐​serving exercise to “to elevate private property rights over public safety and welfare.” Moreover, “we have seen flocks of ‘freedom‐​based public interest law’ organizations that exist only to change public policy through litigation, and which often do not disclose their funders.… the cottage industry that facilitates, orchestrates, and accelerates those desired outcomes lures the Court into trespassing upon elemental protections of the Constitution.“³⁰

There’s more: “Backed by untold financial support from regulated industry interests that have long sought to hobble labor unions and the American regulatory system,” Pacific Legal Foundation — for whom the chairman disdain going back 20 years, when he personally lost a Supreme Court case to them³¹ — and its fellow travelers, in this telling, are a corporate cabal plotting against the American way of life. “At least eleven of the amici who filed briefs in support of petitioners are funded by the same set of industry‐​tied foundations and anonymous money groups,” citing Cato among others.³² Who are these shadowy groups? DonorsTrust, Donors Capital Fund, the Lynde and Harry Bradley Foundation, the Charles G. Koch Charitable Foundation, and the Sarah Scaife Foundation.

In other words, they’re charitable foundations of the type that fund all sorts of causes and organizations — and the Whitehouse brief sets itself squarely against strategic litigation, apparently disapproving of the NAACP, ACLU, environmental groups, and a host of others who engage in public‐​interest legal campaigns. So is it that this sort of activity is bad when it’s advocated by free‐​market advocates and that deregulation is never in the public interest?

Moreover, despite Chairman Whitehouse’s idiosyncratic crusade against amicus brief funding,³³ there’s also nothing fishy about foundations’ donating to think tanks and other nonprofit organizations involved in strategic litigation. It’s done on the left and the right, and affects cases involving big business, small business, and no business. Cato itself is funded mostly by individuals (75% in 2019) and while we do get some funding from foundations (20% in 2019), we can hardly do the bidding of donors whose identities we don’t know.³⁴ We also get a tiny bit of corporate funding (3% in 2019), which I would hazard is much less than the chairman gets from corporate PACs for his reelection campaigns.³⁵

In short, the attack on amicus briefs and their funders is misguided. It also misplaces the causation arrow as between funding and issue advocacy. Advocacy groups exist to advance all sorts of causes — and donors, both individual and corporate, fund those causes they support.

As one Court watcher wrote a quarter‐​century ago, “Today’s confirmation battles are no longer government affairs between the President and the Senate; they are public affairs open to a broad range of players. Thus, overt lobbying, public opinion polls, advertising campaigns, focus groups, and public appeals have all become a routine part of the process.“³⁶ Those trends have only accelerated in the intervening 25 years, such that Supreme Court nominations are perhaps the highest‐​profile set‐​pieces in the American political system. Not even set‐​pieces but months‐​long slogs. Once the inside game of picking the nominee ends — that traditional dance between president and Senate — the outside game begins, culminating in the literally made‐​for‐​TV hearing and then a vote that, as we learned with Justice Kavanaugh, can be just as dramatic.

But the judicial debates we’ve seen the last few decades were never really about the nominees themselves — just like the proposals for “reforms” aren’t about “good government,” but about the direction of the Court. The left in particular needs its social and regulatory agendas, as promulgated by the executive branch, to get through the judiciary. That’s why progressive forces pull out all the stops against originalist nominees who would enforce limits on federal power. Indeed, all of the big nominee blowups in modern times — since the bipartisan opposition to Abe Fortas in 1968 — have come with GOP appointments. The one quasi‐​exception didn’t involve any attacks on the nominee, but the rare case of an election‐​year vacancy arising under divided government; Merrick Garland would’ve been confirmed had Justice Scalia died a year earlier.

Not that any of this is a good thing. “I really, really don’t like where we are right now,” sighed former solicitor general Don Verrilli, who had worked on nominations under Presidents Clinton and Obama and laments the evermore toxic atmosphere. “Something needs to be done to change the situation.“³⁷ If nominations were depoliticized, that would likewise depoliticize the exercise of judicial power, both in perception and reality.

But we can’t just wave a magic wand and go back to some halcyon age where the issues we faced and the political dynamic, were all different. “If they could truly, truly go back, I hear from most senators that they would prefer a return to the pre‐​nuclear‐​option days,” observed Ron Klain, now chief of staff to President Biden, “but in many ways, it’s easier for them now, because there’s very little constituency for voting for the other party’s nominees.“³⁸

The only lasting solution to what ails our body juridic is to return to the Founders’ Constitution by rebalancing and devolving power. Depoliticizing the judiciary is a laudable goal, but that’ll happen only when judges go back to judging rather than bending over backwards to ratify the constitutional abuses of the other branches.

In the end, all of this “reform” discussion boils down to re‐​arranging the deck chairs on the Titanic — by which I refer to the ship of state. The only way judicial confirmations will be detoxified, and the only way we reverse the trend whereby people increasingly see judges as “Trump judges” and “Obama judges,” is for the Supreme Court to restore our constitutional order by returning improperly amassed federal power to the states; securing all of our rights, enumerated and unenumerated alike; and forcing Congress to legislate on the remaining truly national issues rather than delegating that legislative power to executive‐​branch agencies.

The reason we have these heated court battles is that the federal government is simply making too many decisions at a national level for such a large, diverse, and pluralistic country. There’s no more reason that there needs to be a one‐​size‐​fits‐​all health care system, for example, than that zoning laws must be uniform in every city. Let federal legislators make the hard calls about truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas and California be California. That’s the only way we’re going to cure the “big‐​money assault on our judiciary.”