Dark Money Went In, Supreme Court Rulings Are Coming Out

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The barrage of devastating, precedent-setting Supreme Court rulings that could drop any day now may have many Americans wondering how we arrived at such a dark moment. The answer is simple, even if it is rarely discussed in corporate media: It lies in a giant pile of anonymous cash that was deployed to buy Supreme Court seats, help determine justices’ caseload, and shape their decisions.

A secretive, well-financed dark money network helped build the Supreme Court’s radical conservative supermajority and has also been bankrolling many of the politicians and organizations involved in the most controversial cases now before the court. That includes the cases that could invalidate federal abortion rights and prevent the federal government from combating climate change.

The public will almost certainly never know the identities of the ultra-wealthy individuals and interests who paid to stack this court and influence its decisions, but much of the credit should go to a man named Leonard Leo and his cadre of conservative activists.

The co-chairman of the Federalist Society, the conservative lawyers group in Washington, Leo is best known for serving as President Donald Trump’s top judicial adviser. Leo, an anti-abortion zealot, helped select Trump’s Supreme Court picks while simultaneously leading a dark money network that boosted their confirmations with TV ads and contributions to conservative groups that promoted the judges.

Leo’s dark money network has also funded Republican state attorneys general and conservative nonprofits that are backing and even directly arguing some of the most contentious cases before the high court right now.

It is in these cases that the Supreme Court is widely expected to issue rulings that will end federal protections for abortion rights; strip environmental regulators of their ability to regulate carbon emissions; dismantle the high court precedent requiring police officers to inform people of their rights to remain silent and to an attorney when they’re being detained; and strike down blue-state restrictions on carrying concealed firearms.

The court may also give conservative state lawmakers more power to chip away at Americans’ voting rights, and weaken tribal sovereignty.

So to fully understand how we got here, it’s important to follow the money — at least to the extent that we can.

Quietly Building The Court’s Conservative Supermajority

Leo and his allies first formed the Judicial Crisis Network in 2005 to help confirm George W. Bush’s Justices, John Roberts and Samuel Alito — and Leo reportedly played a “decisive role” in both of their selections. The organization has grown quietly and steadily since then, and played a key role in flipping the court and building its 6-3 conservative supermajority.

In 2016, following the death of conservative Justice Antonin Scalia, the Judicial Crisis Network spent $7 million on an advertising and advocacy campaign to pave the way for Republican senators to avoid holding a vote on President Barack Obama’s court pick, Merrick Garland.

Under Trump, Leo helped select Trump’s Supreme Court picks, while the Judicial Crisis Network spent tens of millions of dollars on ad campaigns to confirm Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The Judicial Crisis Network and its sister group, a charitable organization called the Judicial Education Project, both routinely funneled big donations to allied conservative nonprofits that helped create an echo chamber supporting the judges’ nominations.

In early 2020, Leo told Axios of his plans to remake the Judicial Crisis Network and Judicial Education Project and expand their scope.

The Judicial Crisis Network was rebranded as the Concord Fund, while the Judicial Education Project was renamed the 85 Fund. Both organizations maintained their original names as trade names; the Concord Fund continues to run ads under the alias of the Judicial Crisis Network.

Now, both organizations have grown into financial juggernauts. The Concord Fund reported raising more than $48 million between July 2020 and June 2021, a period of time that included Barrett’s confirmation. The 85 Fund brought in nearly $66 million in 2020.

Throughout their history, these organizations have done an exceptional job of keeping their donors secret, while raising giant sums from just a few contributors.

According to its most recent tax return, which was obtained by the watchdog Citizens for Responsibility and Ethics in Washington, the Concord Fund raised nearly all of its recent $48 million haul from two anonymous donors. As The Lever previously reported, one of those donors is the Rule of Law Trust, a nonprofit helmed by Leo, which gave the group $22 million in 2020. None of the very few and obviously ludicrously wealthy donors to the Rule of Law Trust have been disclosed.

Between 2018-19, the Concord Fund received $3 million from the 45Committee, a dark money group affiliated with the billionaire Ricketts family, which owns the Chicago Cubs.

The 85 Fund, meanwhile, received more than $20 million in 2020 from a nonprofit called Donors Trust. The latter organization has long been known as a “dark money ATM,” because billionaires use it as a pass-through vehicle to disguise their donations to conservative groups.

A Two-Pronged Attack On The Judiciary

Leo’s dark money network has spearheaded a two-pronged attack on the judiciary: First it has worked to install conservative judges, then it has worked to bring those appointees specific cases designed to destroy previous precedents, along with amicus briefs, or “friend of the court” filings, offering them rationales for doing so.

In its first mission to populate the bench with right-wing ideologues, Leo and his allies have worked closely with Republican Senate leaders. In its 2020-21 tax return, the Concord Fund reported donating $9 million to One Nation, a dark money group affiliated with Senate Minority Leader Mitch McConnell (R-Ky.), who led the Republican strategy to deny Garland a vote as Obama’s nominee in 2016.

At the time, McConnell justified blocking a vote on Garland’s nomination by arguing that the seat should not be filled in an election year. But in 2020, McConnell led the campaign to swiftly install Barrett to the court despite Justice Ruth Bader Ginsburg’s death coming just 46 days before the election. Barrett was confirmed eight days before the election.

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Those maneuvers, supported with advocacy and donations from Leo’s Concord Fund and 85 Fund, helped turn what could be a 5-4 Democratic majority now into a 6-3 conservative supermajority that may soon overturn longstanding Supreme Court precedents on abortion rights and policing, and gut the government’s ability to regulate greenhouse gases and potentially much more.

As conservative judges have been installed throughout the judiciary, the Concord Fund and the 85 Fund have simultaneously financed the Republican attorneys general and nonprofits that are supporting and, in some instances, directly leading the highest-stakes cases before the Supreme Court right now. The Concord Fund has long been the top financier of the Republican Attorneys General Association (RAGA), which works to elect GOP state attorneys general, donating more than $17 million to the organization since 2014, according to The New York Times.

Meanwhile, other groups funded by Leo’s network have been filing amicus briefs offering legal justification for some of the more destructive cases currently before the Supreme Court.  In their most recent annual tax returns, the 85 Fund reported distributing $34 million in grants to political groups and nonprofits, while the Concord Fund gave out $28 million to nonprofits.

How The Scheme Works

The playbook is now straightforward: Leo’s dark-money network installs right-wing judges, then Republican attorneys general boosted by Leo’s network bring cases and amicus briefs, while other groups funded by the same network file their own briefs — all to create the appearance of broad-based support for extremist rulings.

The Supreme Court’s Carson v. Makin decision, handed down Tuesday, illustrates how the multi-faceted scheme works in practice.

In a 6-3 decision, the court’s conservatives held that Maine must give public money to private religious schools. The decision represents a major infringement on the notion of separation between church and state in the U.S., and threatens the concept of a secular public education.

The Carson decision was undergirded with an amicus brief signed by 21 Republican state attorneys general, who are generally elected with support from the Concord Fund-backed RAGA. Briefs were also filed by Advancing American Freedom, a nonprofit founded by former Vice President Mike Pence that received $1 million from the Concord Fund between 2020-21, as well as the Becket Fund for Religious Liberty, which received $150,000 from the 85 Fund in 2020.

Another brief was filed by the Independent Women’s Forum and its Independent Women’s Law Center. The 85 Fund donated $310,000 to the Independent Women’s Forum in 2020, while the Concord Fund donated $500,000 to its sister group, Independent Women’s Voice, between 2020-21.

This scheme has been consistently replicated in other cases currently before the high court:

• Dobbs v. Jackson Women’s Health Organization — The Supreme Court is likely to overturn the landmark Roe v. Wade decision in 1973 that established a constitutional right to an abortion across the country — a decision that would endanger reproductive health care access for tens of millions of people.

Mississippi Republican Attorney General Lynn Fitch is leading the case to overturn Roe. Fitch, who benefited from $225,000 in RAGA money in her 2018 race, asked the Supreme Court to uphold a Mississippi law that would ban most abortions at 15 weeks of pregnancy, even in cases of rape or incest. Eighteen Republican attorneys general filed a brief supporting Mississippi’s petition, as did a dozen Republican governors. The Concord Fund has donated $1 million to the Republican Governors Association this election cycle, according to Political MoneyLine.

According to a Lever review of their most recent tax returns, the Concord Fund and the 85 Fund donated to a long list of groups that filed amicus briefs in the Supreme Court abortion case: the Susan B. Anthony List ($2.3 million from the Concord Fund); Pence’s Advancing American Freedom ($1 million from the Concord Fund); Concerned Women for America ($440,000 from the Concord Fund, $100,000 from the 85 Fund); the Ethics and Public Policy Center ($488,000 from 85 Fund); the Becket Fund for Religious Liberty ($150,000 from the 85 Fund); CatholicVote.org Education Fund ($50,000 from the Concord Fund to Catholic Vote Civic Action); and Family Research Council ($25,000 from the Concord Fund to Family Research Council Action).

• West Virginia v. Environmental Protection Agency — The case could decide whether the EPA is allowed to issue rules to reduce greenhouse gas emissions, and could have significant implications for the government’s ability to tackle the climate crisis, as well as for other federal agencies’ rulemaking abilities. According to The New York Times, “the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants.”

West Virginia Attorney General Patrick Morrisey (R) is leading the case, with 17 Republican attorneys general signing onto his petition. Kentucky Republican Attorney General Daniel Cameron offered his own amicus brief on the matter to the high court. The New Civil Liberties Alliance, which received $1 million from the 85 Fund in 2020, also filed a brief.

• Vega v. Tekoh — This case considers whether a person’s constitutional rights are violated if law enforcement officers do not inform them of their so-called Miranda rights — their right to remain silent and right to have legal representation when they’re being detained. According to The Hill, the Supreme Court “seems poised to reverse its decision in Miranda” from 1966. Twenty-two Republican attorneys general, many of whom were elected with the help of RAGA, filed an amicus brief supporting the petitioner.

• New York State Rifle & Pistol Association Inc. v. Bruen — The Supreme Court is set to hand down a ruling on this major gun case that could drastically change the rules around firearms that can be carried in New York. A decision that hobbles the state’s rigorous gun permit process could have disastrous consequences, by making it easier in several blue states to legally carry concealed weapons in public.

Twenty-six Republican attorneys general, many of whom are supported by RAGA, filed an amicus brief supporting the New York State Rifle & Pistol Association, which is fighting to weaken the state’s gun laws. The Leo-backed Independent Women’s Law Center also filed a brief.

• Berger v. North Carolina State Conference of the NAACP — Justices will decide whether state lawmakers can intervene in a lawsuit filed against North Carolina concerning the constitutionality of the state’s restrictive voter ID law. Lawmakers want to intervene in the case because they disagree with the state attorney general’s handling of the matter.

A ruling in the legislators’ favor could establish the “independent state legislature doctrine” pushed by conservatives as the law of the land, enshrining state legislatures’ supremacy in regulating elections. Elections experts say this doctrine could give Republicans “intellectual cover” to override popular votes, and even “could be fatal to democracy.”

Nine Republican attorneys general with ties to RAGA filed a brief in the case, as did the Republican State Leadership Committee, which has received $1 million from the Concord Fund this cycle. The Honest Elections Project, an organization that’s part of Leo’s 85 Fund, submitted a brief in the case calling on the court to declare that the independent state legislature doctrine is law.

• Oklahoma v. Castro-Huerta — The case will determine whether states have the authority to prosecute non-Native Americans who commit crimes against Indigenous people on tribal lands. States currently have jurisdiction when the culprit and victim are both non-Indian. Handing states the authority to prosecute in the cases where offenders are non-Indian would have sweeping consequences for tribal sovereignty, upsetting “the balances struck between Congress, the tribes, and the states for more than a century,” as The New Republic wrote.

Once again, RAGA members are involved. Oklahoma Attorney General John O’Connor (R) is leading the case, with five more Republican attorneys general signing on to his petition.

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