‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives

The briefs included one from a group of First Amendment scholars including George and Helen M. Alvare, a law professor at George Mason University’s Antonin Scalia Law School, which in 2016 received a $30 million gift brokered by Leo. Among seven briefs endorsed by people or groups connected to Leo was Turning Point USA, which received $2.75 million from Leo’s 85 Fund in 2020.

The overall concentration of conservative amicus briefs in the LGBTQ+ rights case tied to Leo’s network is among the highest, at about 85 percent, of any of the seven cases reviewed. Many were filed by Catholic or Christian nonprofits in support of the plaintiff, a designer whose company is called 303 Creative.

The two pillars of Leo’s network, The 85 Fund and the Concord Fund, gave $7.8 million between July of 2019 and 2021 to organizations filing briefs on behalf of 303 Creative LLC.

The Concord Fund is a rebranded group, previously called the Judicial Crisis Network, which organized tens of millions of dollars for campaigns promoting the nominations of the conservative justices. The 85 Fund is the new name of the Judicial Education Project, a tax-exempt charitable group that has filed numerous briefs before the court.

A burgeoning tool

Amicus briefs are not only tools of conservatives. The numbers of amicus briefs on both sides of major cases grew substantially after 2010, which happened to be when the court’s Citizens United ruling ushered in a new era of “dark money” groups like the Leo-aligned JEP.

The volume of amicus briefs seeking to influence the court has only increased since then, as both Democrat and Republican-nominated justices have come to borrow from them in their opinions, according to a study published in 2020 in The National Law Journal.

In her dissenting opinion in the affirmative action case, liberal Justice Ketanji Brown Jackson drew criticism for quoting misleading information cited in an amicus brief by the Association of American Medical Colleges about the mortality rate for Florida newborns.

Across the seven cases and hundreds of briefs reviewed by POLITICO — in addition to abortion, LGBTQ+ rights and affirmative action, the cases covered student loans, environmental protection, voting rights and the independent state legislature theory — the conservative parties had a slight advantage, accounting for 50 percent of the amici curiae. That compares to 46 percent in support of the liberal parties and about 4 percent filed in support of neither party.

While there is an amalgam of Democrat-aligned groups directing money to influence the court, such as Protect Democracy, Demand Justice and the National Democratic Redistricting Commission, which is focused on voting and democracy, they are decentralized and mostly revolve around specific issues.

“We don’t have a Federal Reserve or a Central Bank to go to. It doesn’t exist. You’re quantifying two wildly different ecosystems,” said Robert Raben, a former assistant attorney general at the Department of Justice under President Bill Clinton and counsel to the House Judiciary Committee.

Given the opaque nature of Leo’s network, it’s difficult to tally up just how much money has been spent on conservative legal advocacy linked to him. Yet just the two leading groups in his funding network, The Concord Fund and The 85 Fund, spent at least $21.5 million between 2011 and 2021 on groups advocating for conservative rulings.

Tax-exempt nonprofit groups must provide the names of their officers and board members on their annual IRS forms. In 15 percent of the briefs reviewed, Leo is a member of leadership, for instance a board member, trustee or executive representing the filers — or the filers received payments from one of Leo’s groups.

Expanding the circle to include executives who’ve previously worked for a Leo-aligned group, shared board memberships with him, led Federalist Society chapters or have other professional ties to him, Leo’s network is connected to 180 amicus briefs, or a majority.

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