A piece of news that came out on the same day that the Supreme Court heard arguments in a case that is at the heart of what the NRA has dubbed the Republican justices’ “project” to overturn gun safety highlighted how deep the rot runs.
The information was obtained from Russian hackers on the dark web. The Trace said that the hackers discovered a document indicating that the NRA paid a lawyer more than $500,000 to campaign on its behalf via “the Independence Institute.”
This includes submitting pro-gun rights “friend of the court” filings in Supreme Court cases, such as the one heard earlier this month, filed by the NRA’s New York chapter. None of these payments were made public or reported to the court. In essence, the NRA cloned itself in order to enhance its voice in court.
The justices claim that their regulations prevent such misbehavior, yet this is far from an unusual incidence. As Chairman of the House Courts Subcommittee Hank Johnson has repeatedly pointed out, the court’s rules only require the most immediate expenses involved in producing an amicus brief to be disclosed—nothing more than the cost of printing the brief for submission.
A dark-money organization or large industry front, such as the NRA, may hide behind anonymity and magnify its voice in court many times over. In the most recent court judgment in favor of these dark-money organizations, at least 100 Koch-funded dark-money organizations submitted papers in support of the plaintiff—a dark-money organization that is a key component of the Koch network.
Boats of anonymous legal briefs are just eddies on top of a far greater and more hazardous issue under the ocean. Wealthy right-wing benefactors have been funding and coordinating a major dark-money campaign for years in order to get what they cannot achieve via democratic elections through our federal court.
They poured nearly $400 million via a network of front organizations to route hand-picked judicial candidates into the federal courts, including Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, with the Federalist Society’s Leonard Leo at the helm.
The NRA alone spent $1 million on advertising supporting Kavanaugh’s confirmation, claiming that he was chosen to “break the tie” in gun-rights issues.
The NRA alone spent $1 million on advertising supporting Kavanaugh’s confirmation, claiming that he was chosen to “break the tie” in gun-rights issues. Right-wing benefactors finance litigation to pursue their extreme agenda via the courts, now that their judges have been approved. Finally, as seen by the NRA incident, they secretly pay flotillas of amicus filings to support their views and indicate how the judges should vote.
This strategy produces results. More than 80 political rulings by the Roberts Court have resulted in obvious victories for major Republican donor interests. In the last two years, the Supreme Court has eroded protections against discriminatory voter suppression laws, carved out a novel constitutional protection for dark money, used religious liberty as a stick to invalidate public health laws protecting against a deadly pandemic, and, most recently, used its “shadow docket” to temporarily nullify Texas’ constitutional right to abortion. Donors to the scam received what they paid for and more.
In the same 2019 Supreme Court case in which the NRA seems to have sponsored one of the amicus arguments, many Senate colleagues and I submitted our own brief asking the court to maintain its independence from the scheme. The American people are not stupid and are beginning to recognize the court’s deference to corporate, polluter, and party contributor interests.
What action did the court take in response? It marched on, despite the fact that its credibility was eroding. It brought victory after victory for contributors.
Meanwhile, studies suggest that public trust in the courts is steadily declining. Despite the justices’ public relations push to the contrary, more than 60% of Americans today feel that the justices’ votes are influenced more by politics than by the law.
The court’s and judiciary’s 80-to-zero record is not readily rectifiable, but there are actions the court and judiciary might do to cure itself. Greater openness may help guarantee that organizations like the NRA do not use their money to mislead courts and the public. Stronger ethical rules for federal judges, as well as a Supreme Court code of ethics, may help to prevent conflicts of interest. Reporting gifts and hospitality received by judges may help to restore public trust. These are steps that the courts might implement as soon as tomorrow.
Congress, too, has a role to play. Bills like the DISCLOSE Act will shine a light on people who use dark money to damage our democracy. There are bipartisan suggestions to hold judges to the same ethical standards as the other arms of government. Collaborating to improve the amicus disclosure standards that the NRA took advantage of is imperative.
It’s never a good sign when Americans have to depend on Russian hackers to figure out who’s trying to influence our Supreme Court. It is also unsustainable for a rising majority of Americans to think that the court’s rulings are guided by politics rather than the law. The answer is a combination of openness and accountability for the Supreme Court—a solution that must be implemented quickly.