In their ongoing effort to enforce ethics standards on the federal judiciary, Congressional Democrats are now calling on one of the levers of power to step in: the Judicial Conference, which makes judicial policy. Two lawmakers with oversight over the courts—Sen. Sheldon Whitehouse and Rep. Hank Johnson—called on the conference to impose great transparency from special interest groups filing amicus briefs with the courts.
A recent investigation by Politico shows just how deep and influential the dark money network created by conservative activist Leonard Leo is on decisions from district courts all the way up to the Supreme Court. Politico 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.”
Whitehouse and Johnson are asking the conference to require that groups filing amicus briefs disclose who is funding them. “We urge it to take into account the impact that these and other examples have on public confidence in the judiciary,” Whitehouse and Johnson said, citing the Politico report.
A panel in the Judicial Conference has been working since at least October on rules to expand disclosure from these interest groups, proposing a rule that would require those filing amicus briefs to disclose, in Reuter’s words, “when much of their revenue comes from a party in a case or its lawyers.” Whitehouse and Johnson spurred this action three years ago and have continued to pressure the conference to force transparency. The conference hopes to issue a new rule in the first half of next year.
But while it sorts through that, yet another example of Leo’s malign influence is heading to the courts, and this time, it’s an effort to gut what’s left of the Voting Rights Act. Late last month, a three-judge panel on the 8th Circuit Court of Appeals ruled that individual voters, or private plaintiffs, don’t have the right to sue to enforce Section 2 of the VRA, which prohibits states from discriminating against voters on the basis of race, color, or language minority group. The two judges who ruled against voters in this decision were both on Leo’s list of potential Supreme Court justices, which he presented to Donald Trump in 2016. But Leo didn’t just put the judges in place for this ruling, Mother Jones’ Ari Berman reports.
The Honest Elections Project, a group founded in 2020 with support from Leo to advocate for restrictive voting laws and oppose efforts to make voting easier during the pandemic, filed a friend-of-the-court brief before the 8th Circuit. The group said that it had a “significant interest in this case, as it implicates the legislature’s preeminent role in setting the rules for elections and election-related litigation.” It claimed that “a significant increase in the number of Section 2 cases brought by private litigation groups” had “undermine[d] the States’ efforts to protect election integrity and to discharge their duties to draw electoral maps” and had led to a “fast decline in the confidence in elections.”
And that’s how the court ruled, declaring that the U.S. attorney general is the sole claimant eligible to file lawsuits to enforce Section 2, even though the majority of these suits have come from individual voters—the people directly disenfranchised by states’ voter suppression efforts— represented by voting rights groups. Imagine an attorney general under Donald Trump suing to protect the right of people of color to vote.
It’s another concrete instance of Leo picking the judges and using his network to provide the arguments for those judges and justices to use in their decision. Shining a light on the extent of Leo’s dark ownership of all this won’t get all those judges and justices off the bench, but it might constrain their decisions.
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