SCOTUS and the scourge of anonymous money

Dear President Trump,

I don’t know if you, or whoever reads these letters for you, felt it, but at the end of yesterday’s letter I sent a Category 5 blast of anger and frustration at you and at the economic system you and yours have milked so hard that next to nothing is left for those struggling at the bottom of the pyramid. And yes, I know that’s quite a jumble of metaphors – tough cookies.

Last night I didn’t have the character count or the energy to unpack how you all are syphoning up the goodies and even vacuuming up the crumbs like the Grinch did when he cleaned out the Who’s on Christmas Eve. Remember that scene? It’s pretty horrifying – if you have any sense of compassion or justice, that is. You probably delight in that scene and quick change the channel when the Who’s start holding hands and singing despite having nary a morsel to feed their children after the Grinch’s thievery. If you were ever still watching at this point you surely threw the remote at the TV because that’s when Mr. Grinch starts having an involuntary compassion conversion – you can’t be too careful with such things, they might be contagious.

Ok, so the Grinch story illustrates one of the most obvious ways that you and yours (and here I am referring to a long, long string of “trickle down” GOP politicians and economists) have fleeced the American people. But there is another, far more opaque practice that has contributed to your all’s remarkable success over the years as described by Senator Sheldon Whitehouse in a recent WP editorial (9/6/19). He describes an especially noxious and sleazoid way that you all have been tilting things in your favor (see also Todd Ruger’s post on the Roll Call about him on 1/30/19), which is the purchase of influence with the Supreme Court. In his WP editorial he argues that the SC, which is supposed to be an apolitical referee, has been heavily favoring conservative interests in their 5-4 decisions. He counts 73 close decisions since 2005 where big Republican donor interests carried the day and he attributes much of this to the Court’s willingness to accept amicus briefs anonymously funded by shadowy wealthy conservatives.

Whitehouse only mentioned one 5-4 decision that went the other way (in support of same sex marriage) and since I couldn’t tell from his editorial whether there might be a liberal cabal pumping similar amounts of shadowy money to support their agendas with the SC, I did some research. I also couldn’t tell from the editorial whether it’s just poor form to hide the donor information or if it’s squarely against the rules so I also checked into that as well. With regard to this second issue, the Cornell Law School website explains that except for briefs filed on behalf of geographic entities (towns, states, territories as per SC Rule 37.4), all funders of amicus briefs must be named (Rule 37.6) – as in no anonymous shadow people.

I also found an article by Adam Feldman on the SCOTUSblog (July 8, 2019) that breaks down the 5-4 decisions from 2005-2017 in a few different ways. It doesn’t look like it’s the source for Whitehouse’s numbers, but Feldman includes 5-3 decisions to account for the ‘Long Time of 8’ period in his numbers so it might be. Anyway, the most useful/interesting/damning/disturbing set of numbers is reflected in a lovely stacked bar graph where all the 5-4 decisions (to include the 5-3’s) are tallied by year with regard to whether the majority minus the swing vote was comprised of 4 conservative-leaning (shown in red), 4 liberal-leaning judges (blue), or if the majority was mixed (grey). From 2005 to 2017 there were 221 5-4 decisions, 110 of which went conservative, 67 liberal, and 44 mixed, which means that of the partisan decisions, 62% favored conservatives and 38% liberals. That’s a huge difference.

Whitehouse talks about how an amicus brief about gun control that was partially funded through a GoFundMe campaign with some anonymous donors was recently rejected by the SC (it was re-filed after the anonymous people’s money was returned or something like that) as an example of the differential treatment of briefs funded by conservatives and by moderates/liberals. He didn’t do an exhaustive breakdown of what briefs the SC has and hasn’t accepted (a 700 word WP editorial isn’t the place for that) and I’d really love to see how all that shakes out. What seems pretty dang clear, though, is that the legislation he is proposing to make Rule 37.6 legally binding is a good idea since the SC doesn’t appear capable of following it’s own ethical guidelines.

May we safeguard justice by taking anonymous money out of it.
May we all be willing to be transparent in our actions.
May we recognize the inherent rot in a system that lets some people break the rules.
May we not make peace with this inherently unjust system.

Tracy Simpson

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