Welcome back to Drilled. I'm Amy Westervelt. As you've heard me say a few times. Now, we launched a spinoff podcast called Damages. It's following all of the climate litigation that's happening all over the world right now. There are over eighteen hundred climate cases in courts all over the world at the moment, so obviously we're not keeping tabs on every single one of them, but we are trying to follow quite a few, and we're doing a season
right now that turned out to be pretty timely. We're explaining a lot of different kind of ins and outs of the legal system and the various strategies that are being used both to try to further climate action and to try to block it. So go check that out, especially as we all prepare for the ruling in West Virginia versus EPA. I'm still hoping the court will say we don't actually need to rule on this, there's no problem that we can solve here, but you know, probably
wishful thinking at any rate. Today's episode of Damages is one that I think is so important I wanted to bring it to you in full here. It is about amicus briefs. I know sounds very legal and wonky, but these are briefs that are prepared by lawyers who are
quote unquote friends of the court. This idea came about, you know, in the days when the Internet didn't exist and libraries weren't even all that accessible, and the court could look to experts in different fields, or you know, folks who had worked on similar cases for insight into how to rule on a particular case. I've been noticing
a huge increase in these. I've also noticed that lots of different right wing organizations have very well funded amicus brief probe and I've been wondering why that is, because, you know, is any judge really surprised to hear that the Cato Institute is anti regulation? Probably not. I wanted to figure out what was going on here, and so I talked to the person who knows the most about it and has been trying to really get on top of this issue, and that is Senator Sheldon Whitehouse from
the state of Rhode Island. He joins me in this episode today to explain why there's been an increase, why that matters, and how it impacts all of the various things that the Court is doing now. Hope you enjoy it. Here we go, Welcome back to damages. I'm Amy Westerveldt Today. Another super wonky legal thing. Vice word to God is fascinating. Amiicus briefs or amikus briefs. It's Latin, and I hear lawyers pronounce it both ways. If you know the correct pronunciation,
please just share it with me at any rate. Amicus or amkus is Latin for a friend, so these are also sometimes referred to as friend of the court briefs. And way back before the Internet and before large accessible libraries, even judges and their clerks couldn't so easily look up other cases that were relevant to the case at hand, so lawyers or other experts would submit these briefs that would point out similarities between the cases they were hearing
and previous cases. It evolved over the years to include expert briefs more generally, but in the last decade or so it has morphed into something else entirely just a mountain of anonymously funded briefs pushing particular agendas, especially since the passage of Citizens United in twenty ten, which enabled
endless amounts of anonymous corporate funding. There's just been an explosion. Now, as you might assume, the Supreme Court does have disclosure rules about these things, of course it does, but they're ridiculous. You only have to disclose funding if it went toward the actual hands on, manual production of the brief, So like if Charles Koch paid someone to type that brief, you have to disclose it. But if you funded an
entire amicus program at your think tank, you don't. Just to give you a sense of how rapidly this is exploding right now, Amichi filed seven hundred and eighty one briefs in the twenty fourteen Supreme Court term. That was a more than eight hundred percent increase from the nineteen fifties and a ninety five percent increase from nineteen ninety five, and the number of filings has just continued to rise since then. In the court's twenty nineteen term, Amichi filed
nine hundred and eleven briefs. The twenty twenty term featured almost nine hundred and forty. Some high profile cases will even draw more than one hundred amicus briefs. And there's another disturbing trend. Amichi's showing up at the Cerciari stage or cert that's the phase when the Supreme Court is being petitioned to hear a case or reject it. Between nineteen eighty two and twenty fourteen, the percentage of petitions with at least one cert stage amicus more than doubled.
When I first started looking into this, it really didn't make sense, because I thought, is any judge really going to be surprised or swayed by a brief from the Cato Institute that says, we don't think you should regulate business.
No.
But here's the thing. They're not swayed by the organization. They're swayed by the attorney representing them. And any good amicist program worth its dark money knows which lawyers will get which judge's attention at the cert stage. These connected lawyers can improve the chances of the Court viewing the case as sir worthy at any stage. Seasoned members of the Supreme Court bar add credibility to amicus briefs. The late Justice Ruth Ginsberg actually talked about this in a
two thousand and eight interview. She said clerks often divide the amicus briefs into three piles. Those that you can skip entirely. Those that should be skimmed and those that should be read and full. If the attorney submitting the amicus brief has significant experience before the court, it would be more likely that their brief would be placed in a higher priority pile. So it is actually an effective strategy, and more and more Supreme Court justices are actually citing
amicus briefs in their rulings. From twenty eight to twenty thirteen, the Supreme Court cited amicus briefs six hundred and six times in four hundred and seventeen opinions. Between the nineteen ninety four and two thousand and three terms, the Court's majority opinion referenced an amicus brief only thirty eight percent of the time, and in earlier terms like nineteen forty six to nineteen fifty five, it was less than twenty
percent of the time. So it's gone from about eighteen percent in the fifties to more than one hundred percent today. Another tactic folks will use with amicus briefs is to gather so many of them that it gives the justices the sense that there's some kind of consensus behind one side or the other. Of course, what all of this points to is the ability of people with deep pockets
to tilt the courts in their favor. You would think that the Supreme Court would just improve its disclosure requirements and be done with it, but for some reason, it hasn't done that. So in the meantime, Sheldon white House, the Senator from the great state of Rhode Island, has proposed legislation that would force the issue. He's here today to walk us through that legislation and why the Supreme Court resists transparency and how this whole amicus thing is
really messing with democracy. That's coming up after this quick break.
You press on the Supreme Court to take action, and their first response is to pretend that there's no problem, and.
Then you keep pressing, and.
Ultimately within the Judiciary somebody realizes, okay, actually is a problem, and.
They begin to do some work on it.
I don't know whether that's quietly blessed by the Supreme Court or despite.
The Supreme Court, but it's happened twice.
It happened first on Amica's disclosure, where the Supreme Court said nothing to see here or not a problem, go away, but then the Judicial Conference said, Okay, this is actually a really serious question, and they set up a special committee to look into it, and Judge Malett as a part of that discussion in the public meeting, I guess said, hey, we really got to know who the power is behind the throne on these.
Amicus briefs.
And she's obviously respected DC Circuit Court of Appeals Judge. So despite the Supreme Court's indifference, that has been taken up within the Federal judiciary, and then recently the peculiar failure of the Court to disclose gifts in the form of so called personal hospitality, which is read by the Supreme Court does not require that you even know the person who's giving you personal hospitality, not exactly the customary
definition of the word personal right. But again, I wrote a letter asking for an explanation to all the different Circuit Courts of Appeal, and after ignoring it for quite a long time, on the eve of our hearing, the circuit courts sent in a joint response, I think again through the judicial conference, saying Okay, you're right, this is serious, and we're going to have a group of people look
at it once again. I don't know if that is despite the Supreme Court or because they got a quiet signal for the Supreme Court saying.
You better, you better look into this white house and go away.
Right the place that we've been through the same routine with them, which is they pretend that everything is fine, and it's only when you persist that somebody then acknowledges.
No, it is not fine. It is really wrong.
And now we have these you know, ongoing reviews. But it would be far better if the Court from the get go took this seriously, took it up, you know, of its own volish and didn't put us through all these.
Delays and prevarications. Mm hmmmmmm.
Do you think there's a sense that the threat of Congress legislating this versus them setting their own rules kind of drives it along as well, It makes them take it more seriously.
Lord knows what the what the reason is for them to be so obtuse about which seemed to be unbelievably obvious ethics and conflicts problems. Yeah, but I do think that knowing that Congress isn't going away has created some faint with of accountability, at least in the Judicial Conference, if not in the Supreme Court.
Mm hmmm hmm.
It seems to me and Please me if I'm wrong, But it seems to me like in a lot of these cases, the justices themselves probably do have some inkling of who's funding what, but this would provide more transparency for the public. Is that is that accurate?
Or do you think that judges themselves are often in the dark too, to the extent of.
Supreme Court justices are in the dark about who's behind some of these right wing em achy That is a case of willful blindness m because they often they often go and sit with these groups and with their funders mm hmm at Federalist Society dinners when all the drums come together.
Right.
So if if you can't figure that out as you're sitting at the Federal Society gala, at the table with front group organizations and those who fund them, then you have a problem of perspicacity on becoming of a judge.
Yeah, yeah, but you think it would. I mean it seems to.
The problem is if everybody knew, then the story would get far worse for the court, because what we have right now is these little flotillas of right wing ammicky show up, they ask the Court to do X. The Court almost invariably does X. Or at least some part of X, and there's a stunning.
Win rate.
M And if it were public who was behind those briefs, it would make the problem.
Of the win rate look even worse.
Right, It would cross reference, likely with funders of Republican senators who participated in packing the court with these right wing operative judges, and it would trace back to entities funding the selection of these very justices, right right. So this is they know enough to know that this is a world in which they don't like, they don't want the information to get out there because of their own problems.
Right right.
I know I read in your I read I was just saying, Megan before you get on that.
I read your Law Journal article again this morning, and I know you noted a few different groups that show up a lot. Are there any particular atturnes who are kind of like popular picks of.
These groups to be counsel on these briefs?
Yes, there are, and I just don't have them top of mind. But there are some, you know, pretty regular frequent flyers in the legal regime around this. The most obvious one who comes to mind right now, in the wake of this wretched cruise versus Federal.
Election Commission decision. Yeah, is Don mcgon right.
Don mcgonn, who picked the last three judges or was told who to pick by the Federalist Society, the White House Council during their selection.
Let's put it that way.
And Mitch McConnell, who orchestrated their confirmation through extraordinary obstacles like, for instance, faking an FBI background investigation, faking an FBI supplemental background investigation for Kavanaugh. They're on the same brief telling the court what to do, and the big surprise, the court.
Does as instructive right, right, I mean, if.
You want to if you want to look at a like payback loop, Yeah, Chris, the FC is like the perfect payback loop.
That case in general is pretty stunning on multiple levels of.
Well, but also totally predictable because the Federalist Society justices are absolutely determined to expand the role of dark money for very obvious but also very unfortunate political reasons.
M m m hm.
So I wanted, I know you have to go in, but I had one more question, just in terms of I'm assuming that there are various dark money funded efforts against these disclosures. Have you come up against any I don't know, obvious kind of dark money funded opposition to improving disclosure and transparency.
Yes, I mean there's a whole right wing media operation to try to discredit it and to point out that it's hypocritical of Democrats to play by the rules and at the same time want to clean up the rules. M that's not an actual hypocrisy, but they frame it as one as part of their narrative.
Right, so you certainly see that in action.
And of course there's this mad rush to build a constitution, mad rush for the court to build a constitutional right to dark money. We'll get ahead of our legislation requiring disclosure of dark money.
Right.
And if you want to go back to Emicky the case in which they did that, I mean, it's just a beauty of a case.
It's called Americans for Prosperity Foundation versus Bonta at the end of the day went through a number of respondents as the officials changed in California.
But Americans for Prosperity Foundation, which is.
The five oh one C three twin to the Koch Brothers five oh one C four battleship Americans for Prosperity with massive overlap between the two, same address, overlapping boards.
Same staff. You could pierce the corporate veil between the two with a banana.
Yeah.
Yeah.
And they pick Americans for Prosperity Foundation as the petitioner to try to get this dark money constitutional right to have a foundation. And when they do that, fifty at least fifty. It's actually more, but it gets harder and harder to prove as you get into these small groups with no records, but at least fifty dark money.
Amiky showed up at.
The Cerchiurari stage, at the cert stage to push the Supreme Court to take up this case.
And by the way, it lurked for a very.
Long, strange period of time at the Supreme Court, and they only took it up once they had Judge Barrett giving them six and they only took it up literally two days after the attack on the Capitol, when everybody in America.
Was looking elsewhere. Wow, January eighth, they took the case up.
So they've got the case of the twin of the Koch brothers political battleship supported by fifty dark money front groups that they take onto their docket in the shadow of the attack on the Capitol, and sure enough, they create a constitutional right to dark money for.
This group, right right. I've been looking at this with respect to the climate cases because the very specific argument they're making about political speech in those cases is I don't know. It keeps jumping out to me as like a broadening of the citizens United stuff. And I think they're going to try to get it to the Supreme Court and blur the line between fraud in mine.
Absolutely absolutely.
I think if you look at the tobacco fraud case that the Department of Justice won, it makes an extremely good template for a climate fraud case against the fossil fuel industry.
The Supreme Court never took it up.
The DOJ one big in a just devastating decision by the DC District Court, which was powerfully upheld in a unanimous decision by the DC Circuit Court of Appeals, and the Supreme Court.
Declined to review it.
So that's floating out there as a template and a way to end corporate fraud. But just you wait for these guys to say that, oh, well, when it's petitioning government, right exactly, Yeah, then there's special protection here in the government of all people is in the worst possible position to police fraud against itself because they treat government as an interested party rather than as.
The popular summation of the public will.
Right.
So yeah, you could see that.
You could see that coming just as clearly as you could see the FPF case coming.
Yeah, yeah, oh, no problem, go vote. Thank you so much for your time, and I'll.
Keep you guys. There's lots of good material and we haven't been so thank you, thank you, thank you.
Yeah, thanks a lot. I have a bite.
That's it for this time. Thanks for listening, and we'll see you next week. Damages is an original Critical Frequency production. Our editor and senior producer is Sarah Ventry, mixing and mastering by Mark Bush. The show is written and reported by me Amy Westerveld, with additional reporting by Karen Savage, Meg Duff, and Lindall Rawlins. Our fact checker is Woo Dan Yan. Our First Amendment Attorney is James Wheaton of the First Amendment Project. Our theme song this season is
Burden the Hand by Fornown. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the File Foundation. If you'd like to support our work, please rate, or review the podcast wherever you're listening and share it with friends. Thanks for listening, and we'll see you next time.
Stop that that