Speaker 1: Welcome back to Drilled. I'm Amy Westervelt. As you've heard
Speaker 1: me say a few times. Now, we launched a spinoff
Speaker 1: podcast called Damages. It's following all of the climate litigation
Speaker 1: that's happening all over the world right now. There are
Speaker 1: over eighteen hundred climate cases in courts all over the
Speaker 1: world at the moment, so obviously we're not keeping tabs
Speaker 1: on every single one of them, but we are trying
Speaker 1: to follow quite a few, and we're doing a season
Speaker 1: right now that turned out to be pretty timely. We're
Speaker 1: explaining a lot of different kind of ins and outs
Speaker 1: of the legal system and the various strategies that are
Speaker 1: being used both to try to further climate action and
Speaker 1: to try to block it. So go check that out,
Speaker 1: especially as we all prepare for the ruling in West
Speaker 1: Virginia versus EPA. I'm still hoping the court will say
Speaker 1: we don't actually need to rule on this, there's no
Speaker 1: problem that we can solve here, but you know, probably
Speaker 1: wishful thinking at any rate. Today's episode of Damages is
Speaker 1: one that I think is so important I wanted to
Speaker 1: bring it to you in full here. It is about
Speaker 1: amicus briefs. I know sounds very legal and wonky, but
Speaker 1: these are briefs that are prepared by lawyers who are
Speaker 1: quote unquote friends of the court. This idea came about,
Speaker 1: you know, in the days when the Internet didn't exist
Speaker 1: and libraries weren't even all that accessible, and the court
Speaker 1: could look to experts in different fields, or you know,
Speaker 1: folks who had worked on similar cases for insight into
Speaker 1: how to rule on a particular case. I've been noticing
Speaker 1: a huge increase in these. I've also noticed that lots
Speaker 1: of different right wing organizations have very well funded amicus
Speaker 1: brief probe and I've been wondering why that is, because,
Speaker 1: you know, is any judge really surprised to hear that
Speaker 1: the Cato Institute is anti regulation? Probably not. I wanted
Speaker 1: to figure out what was going on here, and so
Speaker 1: I talked to the person who knows the most about
Speaker 1: it and has been trying to really get on top
Speaker 1: of this issue, and that is Senator Sheldon Whitehouse from
Speaker 1: the state of Rhode Island. He joins me in this
Speaker 1: episode today to explain why there's been an increase, why
Speaker 1: that matters, and how it impacts all of the various
Speaker 1: things that the Court is doing now. Hope you enjoy it.
Speaker 1: Here we go, Welcome back to damages. I'm Amy Westerveldt Today.
Speaker 1: Another super wonky legal thing. Vice word to God is fascinating.
Speaker 1: Amiicus briefs or amikus briefs. It's Latin, and I hear
Speaker 1: lawyers pronounce it both ways. If you know the correct pronunciation,
Speaker 1: please just share it with me at any rate. Amicus
Speaker 1: or amkus is Latin for a friend, so these are
Speaker 1: also sometimes referred to as friend of the court briefs.
Speaker 1: And way back before the Internet and before large accessible libraries,
Speaker 1: even judges and their clerks couldn't so easily look up
Speaker 1: other cases that were relevant to the case at hand,
Speaker 1: so lawyers or other experts would submit these briefs that
Speaker 1: would point out similarities between the cases they were hearing
Speaker 1: and previous cases. It evolved over the years to include
Speaker 1: expert briefs more generally, but in the last decade or
Speaker 1: so it has morphed into something else entirely just a
Speaker 1: mountain of anonymously funded briefs pushing particular agendas, especially since
Speaker 1: the passage of Citizens United in twenty ten, which enabled
Speaker 1: endless amounts of anonymous corporate funding. There's just been an explosion. Now,
Speaker 1: as you might assume, the Supreme Court does have disclosure
Speaker 1: rules about these things, of course it does, but they're ridiculous.
Speaker 1: You only have to disclose funding if it went toward
Speaker 1: the actual hands on, manual production of the brief, So
Speaker 1: like if Charles Koch paid someone to type that brief,
Speaker 1: you have to disclose it. But if you funded an
Speaker 1: entire amicus program at your think tank, you don't. Just
Speaker 1: to give you a sense of how rapidly this is
Speaker 1: exploding right now, Amichi filed seven hundred and eighty one
Speaker 1: briefs in the twenty fourteen Supreme Court term. That was
Speaker 1: a more than eight hundred percent increase from the nineteen
Speaker 1: fifties and a ninety five percent increase from nineteen ninety five,
Speaker 1: and the number of filings has just continued to rise
Speaker 1: since then. In the court's twenty nineteen term, Amichi filed
Speaker 1: nine hundred and eleven briefs. The twenty twenty term featured
Speaker 1: almost nine hundred and forty. Some high profile cases will
Speaker 1: even draw more than one hundred amicus briefs. And there's
Speaker 1: another disturbing trend. Amichi's showing up at the Cerciari stage
Speaker 1: or cert that's the phase when the Supreme Court is
Speaker 1: being petitioned to hear a case or reject it. Between
Speaker 1: nineteen eighty two and twenty fourteen, the percentage of petitions
Speaker 1: with at least one cert stage amicus more than doubled.
Speaker 1: When I first started looking into this, it really didn't
Speaker 1: make sense, because I thought, is any judge really going
Speaker 1: to be surprised or swayed by a brief from the
Speaker 1: Cato Institute that says, we don't think you should regulate business.
Speaker 2: No.
Speaker 1: But here's the thing. They're not swayed by the organization.
Speaker 1: They're swayed by the attorney representing them. And any good
Speaker 1: amicist program worth its dark money knows which lawyers will
Speaker 1: get which judge's attention at the cert stage. These connected
Speaker 1: lawyers can improve the chances of the Court viewing the
Speaker 1: case as sir worthy at any stage. Seasoned members of
Speaker 1: the Supreme Court bar add credibility to amicus briefs. The
Speaker 1: late Justice Ruth Ginsberg actually talked about this in a
Speaker 1: two thousand and eight interview. She said clerks often divide
Speaker 1: the amicus briefs into three piles. Those that you can
Speaker 1: skip entirely. Those that should be skimmed and those that
Speaker 1: should be read and full. If the attorney submitting the
Speaker 1: amicus brief has significant experience before the court, it would
Speaker 1: be more likely that their brief would be placed in
Speaker 1: a higher priority pile. So it is actually an effective strategy,
Speaker 1: and more and more Supreme Court justices are actually citing
Speaker 1: amicus briefs in their rulings. From twenty eight to twenty thirteen,
Speaker 1: the Supreme Court cited amicus briefs six hundred and six
Speaker 1: times in four hundred and seventeen opinions. Between the nineteen
Speaker 1: ninety four and two thousand and three terms, the Court's
Speaker 1: majority opinion referenced an amicus brief only thirty eight percent
Speaker 1: of the time, and in earlier terms like nineteen forty
Speaker 1: six to nineteen fifty five, it was less than twenty
Speaker 1: percent of the time. So it's gone from about eighteen
Speaker 1: percent in the fifties to more than one hundred percent today.
Speaker 1: Another tactic folks will use with amicus briefs is to
Speaker 1: gather so many of them that it gives the justices
Speaker 1: the sense that there's some kind of consensus behind one
Speaker 1: side or the other. Of course, what all of this
Speaker 1: points to is the ability of people with deep pockets
Speaker 1: to tilt the courts in their favor. You would think
Speaker 1: that the Supreme Court would just improve its disclosure requirements
Speaker 1: and be done with it, but for some reason, it
Speaker 1: hasn't done that. So in the meantime, Sheldon white House,
Speaker 1: the Senator from the great state of Rhode Island, has
Speaker 1: proposed legislation that would force the issue. He's here today
Speaker 1: to walk us through that legislation and why the Supreme
Speaker 1: Court resists transparency and how this whole amicus thing is
Speaker 1: really messing with democracy. That's coming up after this quick break.
Speaker 2: You press on the Supreme Court to take action, and
Speaker 2: their first response is to pretend that there's no problem, and.
Speaker 3: Then you keep pressing, and.
Speaker 2: Ultimately within the Judiciary somebody realizes, okay, actually is a problem, and.
Speaker 3: They begin to do some work on it.
Speaker 2: I don't know whether that's quietly blessed by the Supreme
Speaker 2: Court or despite.
Speaker 3: The Supreme Court, but it's happened twice.
Speaker 2: It happened first on Amica's disclosure, where the Supreme Court
Speaker 2: said nothing to see here or not a problem, go away,
Speaker 2: but then the Judicial Conference said, Okay, this is actually
Speaker 2: a really serious question, and they set up a special
Speaker 2: committee to look into it, and Judge Malett as a
Speaker 2: part of that discussion in the public meeting, I guess said, hey,
Speaker 2: we really got to know who the power is behind
Speaker 2: the throne on these.
Speaker 3: Amicus briefs.
Speaker 2: And she's obviously respected DC Circuit Court of Appeals Judge.
Speaker 2: So despite the Supreme Court's indifference, that has been taken
Speaker 2: up within the Federal judiciary, and then recently the peculiar
Speaker 2: failure of the Court to disclose gifts in the form
Speaker 2: of so called personal hospitality, which is read by the
Speaker 2: Supreme Court does not require that you even know the
Speaker 2: person who's giving you personal hospitality, not exactly the customary
Speaker 2: definition of the word personal right. But again, I wrote
Speaker 2: a letter asking for an explanation to all the different
Speaker 2: Circuit Courts of Appeal, and after ignoring it for quite
Speaker 2: a long time, on the eve of our hearing, the
Speaker 2: circuit courts sent in a joint response, I think again
Speaker 2: through the judicial conference, saying Okay, you're right, this is serious,
Speaker 2: and we're going to have a group of people look
Speaker 2: at it once again. I don't know if that is
Speaker 2: despite the Supreme Court or because they got a quiet
Speaker 2: signal for the Supreme Court saying.
Speaker 3: You better, you better look into this white house and
Speaker 3: go away.
Speaker 2: Right the place that we've been through the same routine
Speaker 2: with them, which is they pretend that everything is fine,
Speaker 2: and it's only when you persist that somebody then acknowledges.
Speaker 3: No, it is not fine. It is really wrong.
Speaker 2: And now we have these you know, ongoing reviews. But
Speaker 2: it would be far better if the Court from the
Speaker 2: get go took this seriously, took it up, you know,
Speaker 2: of its own volish and didn't put us through all these.
Speaker 3: Delays and prevarications. Mm hmmmmmm.
Speaker 4: Do you think there's a sense that the threat of
Speaker 4: Congress legislating this versus them setting their own rules kind
Speaker 4: of drives it along as well, It makes them take
Speaker 4: it more seriously.
Speaker 2: Lord knows what the what the reason is for them
Speaker 2: to be so obtuse about which seemed to be unbelievably
Speaker 2: obvious ethics and conflicts problems. Yeah, but I do think
Speaker 2: that knowing that Congress isn't going away has created some
Speaker 2: faint with of accountability, at least in the Judicial Conference,
Speaker 2: if not in the Supreme Court.
Speaker 3: Mm hmmm hmm.
Speaker 4: It seems to me and Please me if I'm wrong,
Speaker 4: But it seems to me like in a lot of
Speaker 4: these cases, the justices themselves probably do have some inkling
Speaker 4: of who's funding what, but this would provide more transparency
Speaker 4: for the public. Is that is that accurate?
Speaker 5: Or do you think that judges themselves are often in
Speaker 5: the dark too, to the extent of.
Speaker 2: Supreme Court justices are in the dark about who's behind
Speaker 2: some of these right wing em achy That is a
Speaker 2: case of willful blindness m because they often they often
Speaker 2: go and sit with these groups and with their funders
Speaker 2: mm hmm at Federalist Society dinners when all the drums
Speaker 2: come together.
Speaker 3: Right.
Speaker 2: So if if you can't figure that out as you're
Speaker 2: sitting at the Federal Society gala, at the table with
Speaker 2: front group organizations and those who fund them, then you
Speaker 2: have a problem of perspicacity on becoming of a judge.
Speaker 5: Yeah, yeah, but you think it would. I mean it
Speaker 5: seems to.
Speaker 2: The problem is if everybody knew, then the story would
Speaker 2: get far worse for the court, because what we have
Speaker 2: right now is these little flotillas of right wing ammicky
Speaker 2: show up, they ask the Court to do X. The
Speaker 2: Court almost invariably does X. Or at least some part
Speaker 2: of X, and there's a stunning.
Speaker 3: Win rate.
Speaker 2: M And if it were public who was behind those briefs,
Speaker 2: it would make the problem.
Speaker 3: Of the win rate look even worse.
Speaker 2: Right, It would cross reference, likely with funders of Republican
Speaker 2: senators who participated in packing the court with these right
Speaker 2: wing operative judges, and it would trace back to entities
Speaker 2: funding the selection of these very justices, right right. So
Speaker 2: this is they know enough to know that this is
Speaker 2: a world in which they don't like, they don't want
Speaker 2: the information to get out there because of their own problems.
Speaker 3: Right right.
Speaker 4: I know I read in your I read I was
Speaker 4: just saying, Megan before you get on that.
Speaker 5: I read your Law Journal article again this morning, and
Speaker 5: I know you noted a few different groups that show
Speaker 5: up a lot. Are there any particular atturnes who are
Speaker 5: kind of like popular picks of.
Speaker 4: These groups to be counsel on these briefs?
Speaker 2: Yes, there are, and I just don't have them top
Speaker 2: of mind. But there are some, you know, pretty regular
Speaker 2: frequent flyers in the legal regime around this. The most
Speaker 2: obvious one who comes to mind right now, in the
Speaker 2: wake of this wretched cruise versus Federal.
Speaker 3: Election Commission decision. Yeah, is Don mcgon right.
Speaker 2: Don mcgonn, who picked the last three judges or was
Speaker 2: told who to pick by the Federalist Society, the White
Speaker 2: House Council during their selection.
Speaker 3: Let's put it that way.
Speaker 2: And Mitch McConnell, who orchestrated their confirmation through extraordinary obstacles like,
Speaker 2: for instance, faking an FBI background investigation, faking an FBI
Speaker 2: supplemental background investigation for Kavanaugh. They're on the same brief
Speaker 2: telling the court what to do, and the big surprise,
Speaker 2: the court.
Speaker 3: Does as instructive right, right, I mean, if.
Speaker 2: You want to if you want to look at a
Speaker 2: like payback loop, Yeah, Chris, the FC is like the
Speaker 2: perfect payback loop.
Speaker 4: That case in general is pretty stunning on multiple levels of.
Speaker 2: Well, but also totally predictable because the Federalist Society justices
Speaker 2: are absolutely determined to expand the role of dark money
Speaker 2: for very obvious but also very unfortunate political reasons.
Speaker 4: M m m hm.
Speaker 5: So I wanted, I know you have to go in,
Speaker 5: but I had one more question, just in terms of
Speaker 5: I'm assuming that there are various dark money funded efforts
Speaker 5: against these disclosures. Have you come up against any I
Speaker 5: don't know, obvious kind of dark money funded opposition to
Speaker 5: improving disclosure and transparency.
Speaker 2: Yes, I mean there's a whole right wing media operation
Speaker 2: to try to discredit it and to point out that
Speaker 2: it's hypocritical of Democrats to play by the rules and
Speaker 2: at the same time want to clean up the rules.
Speaker 2: M that's not an actual hypocrisy, but they frame it
Speaker 2: as one as part of their narrative.
Speaker 3: Right, so you certainly see that in action.
Speaker 2: And of course there's this mad rush to build a constitution,
Speaker 2: mad rush for the court to build a constitutional right
Speaker 2: to dark money. We'll get ahead of our legislation requiring
Speaker 2: disclosure of dark money.
Speaker 4: Right.
Speaker 3: And if you want to go back to Emicky the
Speaker 3: case in which they did that, I mean, it's just
Speaker 3: a beauty of a case.
Speaker 2: It's called Americans for Prosperity Foundation versus Bonta at the
Speaker 2: end of the day went through a number of respondents
Speaker 2: as the officials changed in California.
Speaker 3: But Americans for Prosperity Foundation, which is.
Speaker 2: The five oh one C three twin to the Koch
Speaker 2: Brothers five oh one C four battleship Americans for Prosperity
Speaker 2: with massive overlap between the two, same address, overlapping boards.
Speaker 3: Same staff. You could pierce the corporate veil between the
Speaker 3: two with a banana.
Speaker 1: Yeah.
Speaker 5: Yeah.
Speaker 2: And they pick Americans for Prosperity Foundation as the petitioner
Speaker 2: to try to get this dark money constitutional right to
Speaker 2: have a foundation. And when they do that, fifty at
Speaker 2: least fifty. It's actually more, but it gets harder and
Speaker 2: harder to prove as you get into these small groups
Speaker 2: with no records, but at least fifty dark money.
Speaker 3: Amiky showed up at.
Speaker 2: The Cerchiurari stage, at the cert stage to push the
Speaker 2: Supreme Court to take up this case.
Speaker 3: And by the way, it lurked for a very.
Speaker 2: Long, strange period of time at the Supreme Court, and
Speaker 2: they only took it up once they had Judge Barrett
Speaker 2: giving them six and they only took it up literally
Speaker 2: two days after the attack on the Capitol, when everybody
Speaker 2: in America.
Speaker 3: Was looking elsewhere. Wow, January eighth, they took the case up.
Speaker 2: So they've got the case of the twin of the
Speaker 2: Koch brothers political battleship supported by fifty dark money front
Speaker 2: groups that they take onto their docket in the shadow
Speaker 2: of the attack on the Capitol, and sure enough, they
Speaker 2: create a constitutional right to dark money for.
Speaker 4: This group, right right. I've been looking at this with
Speaker 4: respect to the climate cases because the very specific argument
Speaker 4: they're making about political speech in those cases is I
Speaker 4: don't know. It keeps jumping out to me as like
Speaker 4: a broadening of the citizens United stuff. And I think
Speaker 4: they're going to try to get it to the Supreme
Speaker 4: Court and blur the line between fraud in mine.
Speaker 3: Absolutely absolutely.
Speaker 2: I think if you look at the tobacco fraud case
Speaker 2: that the Department of Justice won, it makes an extremely
Speaker 2: good template for a climate fraud case against the fossil
Speaker 2: fuel industry.
Speaker 3: The Supreme Court never took it up.
Speaker 2: The DOJ one big in a just devastating decision by
Speaker 2: the DC District Court, which was powerfully upheld in a
Speaker 2: unanimous decision by the DC Circuit Court of Appeals, and
Speaker 2: the Supreme Court.
Speaker 3: Declined to review it.
Speaker 2: So that's floating out there as a template and a
Speaker 2: way to end corporate fraud. But just you wait for
Speaker 2: these guys to say that, oh, well, when it's petitioning government,
Speaker 2: right exactly, Yeah, then there's special protection here in the
Speaker 2: government of all people is in the worst possible position
Speaker 2: to police fraud against itself because they treat government as
Speaker 2: an interested party rather than as.
Speaker 3: The popular summation of the public will.
Speaker 5: Right.
Speaker 3: So yeah, you could see that.
Speaker 2: You could see that coming just as clearly as you
Speaker 2: could see the FPF case coming.
Speaker 4: Yeah, yeah, oh, no problem, go vote. Thank you so
Speaker 4: much for your time, and I'll.
Speaker 3: Keep you guys. There's lots of good material and we
Speaker 3: haven't been so thank you, thank you, thank you.
Speaker 4: Yeah, thanks a lot. I have a bite.
Speaker 1: That's it for this time. Thanks for listening, and we'll
Speaker 1: see you next week. Damages is an original Critical Frequency production.
Speaker 1: Our editor and senior producer is Sarah Ventry, mixing and
Speaker 1: mastering by Mark Bush. The show is written and reported
Speaker 1: by me Amy Westerveld, with additional reporting by Karen Savage,
Speaker 1: Meg Duff, and Lindall Rawlins. Our fact checker is Woo
Speaker 1: Dan Yan. Our First Amendment Attorney is James Wheaton of
Speaker 1: the First Amendment Project. Our theme song this season is
Speaker 1: Burden the Hand by Fornown. Artwork is by Matthew Fleming.
Speaker 1: The show is supported in part by a generous grant
Speaker 1: from the File Foundation. If you'd like to support our work,
Speaker 1: please rate, or review the podcast wherever you're listening and
Speaker 1: share it with friends. Thanks for listening, and we'll see
Speaker 1: you next time.
Speaker 5: Stop that that