This podcast explores the surge in anonymously funded amicus briefs, the power of Amicus briefs in swaying judges' opinions, the Supreme Court's disregard for ethics and transparency, and the implications of climate cases and political speech.
Amicus briefs have evolved from pointing out similarities between cases to being used as tools for anonymously funded briefs pushing specific agendas, with a significant increase in their usage and influence in recent years.
Disclosure rules for amicus briefs are limited, allowing for a lack of transparency and enabling dark money-funded efforts to oppose improved disclosure and transparency, ultimately aiming to build a constitutional right to dark money and tilt the court in favor of certain agendas.
Deep dives
The Rise of Amicus Briefs
Amicus briefs, also known as friend of the court briefs, were originally used to point out similarities between current cases and previous cases before the internet and accessible libraries. However, in recent years, they have become a tool for anonymously funded briefs pushing specific agendas. The number of amicus briefs filed has skyrocketed, with a 95% increase from 1995 to 2014 and over 940 briefs filed in the 2020 term. Connected lawyers who have experience with the court can improve the chances of the court viewing a case. Justices are citing amicus briefs more in their rulings, from 38% in the 1994-2003 terms to over 100% today.
Problems with Disclosure and Dark Money
Disclosure rules for amicus briefs are limited, only requiring disclosure of funding used for the manual production of the brief. This loophole allows for a lack of transparency, and the Supreme Court has not taken steps to improve disclosure requirements. Dark money-funded efforts are also opposing improved disclosure and transparency. The goal is to build a constitutional right to dark money, expand the role of dark money, and tilt the court in favor of certain agendas. There is a need for transparency as the identities of funders may connect to entities funding the selection of justices and funders of senators involved in packing the court.
Impact of Amicus Briefs on Rulings
Amicus briefs serve as a way to influence the Supreme Court's decisions, and justices often have knowledge of the funders behind various groups. Certain attorneys are popular picks for these briefs and they are aware of which attorneys will get the judges' attention. By flooding the court with amicus briefs, it gives the impression of a consensus behind a particular side. The court's win rate for right-wing amicus briefs is high, and knowing the funders would further highlight the problem. Justices are citing amicus briefs more in their rulings, with a significant increase from earlier terms.
I have been wondering for months what possible sense it makes for every right-wing think tank to have an amicus program. I mean...is any judge really surprised to learn that the Cato Institute is against regulation? But these are not folks who spend money on things for no reason, and the presence and size of amicus programs at conservative "public interest" law firms and think tanks have been growing exponentially over the years, so I reached out to the only person I've ever seen mention this in public: Senator Sheldon Whitehouse. He had all the answers I was looking for and then some.