BACKGROUNDER ON THE SCHEME TO CAPTURE THE

SUPREME COURT AND REVERSE CORE RIGHTS

Key Analysis of the Court, Amy Barrett, Trump Advisor
Leonard Leo, and Billionaire Charles Koch
Charles Koch’s political arm, Americans for Prosperity, has launched a “full-scale” campaign to
get Amy Coney Barrett confirmed to a lifetime seat on the Supreme Court.

That is only one part of the influence machine Koch Industries’ CEO has built up to capture the
Supreme Court--and, with it, the meaning of our Constitution. The network he funds includes
the Federalist Society.

His groups deploy deceptive rhetoric designed to assure Americans that Barrett will be a judge
who supposedly “puts the Constitution first, interprets the law as written, and protects our
freedoms.” They also claim she will “uphold the rule of law” and “not legislate from the bench.”
The reality is the opposite. The reason the Koch machine and its close allies are “all in” for
Barrett is because they believe she will be a sure vote for their agenda. That includes the multi-
million dollar dark money operation orchestrated by Leonard Leo, the co-chair of the Federalist
Society, who hand-picked her to replace the ailing Justice Ruth Bader Ginsburg.
Their rhetoric obscures from the public the real motive: they believe she will help reverse a
century of legal precedents they dislike, rulings that protect the hard-won rights of Americans.
Here’s how Leo described this revolution behind closed doors at the Council on National Policy:

This backgrounder will help translate the real meaning of those terms of art reeled off by Leo,
the man who selected the potential nominees from which Donald Trump chose for his Supreme
Court nominee. In this sense, Leo is like the chef who sets the menu for the whole restaurant.
This report includes key facts about the Supreme Court and the structural changes that Leo and
his secret funders are advancing. It provides information about his dark money operations and
the network of groups spending money to get Justices confirmed in order to reverse legal
precedents in cases they are bringing to the Court. It also describes the role of right-wing
billionaire Koch and his wealthy allies in their war to pack the Court and re-set our destiny.
This report also describes why Barrett should recuse herself from any cases involving this
election. Additionally, it details why installing her on the Court will harm our public health and
our democracy.
 2

FOUR KEY FACTS ABOUT THE Limiting Americans’ Voting Rights. In a

COURT + THE STAKES 5-4 decision, along partisan lines, the Court
overruled key protections against voter
1. IT’S FOR LIFE. suppression in the Voting Rights Act of 1965
by declaring them no longer necessary, despite
A nominee confirmed to the Supreme Court is new GOP restrictions that disparately impact
given a job for life. Amy Barrett is 48. She black voters. Shelby County v. Holder (2012).
could issue rulings affecting people’s rights for
40 years or more, beyond 2060. There is no
appeal from Supreme Court decisions,
including ones that alter the meaning of our
Constitution—such as rolling back decades of
legal precedents, as Leo exalted.
2. DISCRETIONARY POWER.
Limiting Power to Secure Fair Maps. In
Almost all of the cases the Supreme Court another 5-4 decision, the Court declared that
decides are discretionary, meaning Barrett federal courts do not have the power to
could form a bloc with three other Justices to overturn extreme partisan map drawing that
choose the cases/laws she wants to change. grossly distorts our representative democracy
(such as GOP candidates winning 10 of 13
CASE SELECTION IS NOT RANDOM. congressional seats but only 53% of the vote
Each year, nearly 8,000 cases are filed with statewide). Rucho v. Common Cause (2019).
the Court seeking review, but four Justices on
the nine-member court can vote to hear a case.
Each year, the Court hears only about 80 cases
or 1% of the cases seeking review. This stands
in stark contrast to 60, 50, and 40 years ago,
when the same number of Justices decided
almost 50% more cases (143, 142, 150,
respectively)—from fewer appeals. They did so
with fewer law clerks and with typewriters. Limiting Power to Curb Corruption. In
another 5-4 decision, the Court barred
VERY POLITICAL + CHANGING THE
Congress from regulating groups raising and
STRUCTURE OF OUR DEMOCRACY.
spending money on “issues” around an
election. It struck down key provisions of the
In 1988, President Reagan revised federal law
Bipartisan Campaign Reform Act designed to
to allow the Justices to hand-pick their entire
limit the corrosive and distorting influence of
caseload. Under Court rules, a clique of four
dark money. Citizens United v. FEC (2010).
justices can single out any case that bloc wants
That law, McCain-Feingold, was opposed by
to rule on. They are using this power to choose
Sen. Mitch McConnell and others in the GOP.
cases to limit the rights of millions of people.

With Chief Justice John Roberts at the helm,

the Supreme Court has already begun Leo’s
revolution to change the structure of modern
American democracy through a trio of cases.

It gutted landmark protections for the voting

rights of Black Americans, which are under
attack. It struck down anti-corruption -----
legislation that limited the corrosive influence These 5-4 rulings are structural edicts, thumbs
of election season spending by big, secret on the scales of justice, that have changed key
donors; and, it blocked other judges from rules in our democracy that benefit the same
having power to overturn unfair maps. political party that appointed those Justices.
 3

3. MORE CASES TO REVERSE LEGAL Only for a brief period, from the 1940s to the
PRECEDENTS ARE IN THE QUEUE— early 1970s, was the Court considered
BACKED BY SOME RUNNING ADS TO “liberal,” even though it was enforcing ideals
GET BARRETT CONFIRMED. in our Constitution. For example, in Brown v.
Board of Education, it found that racially
The Supreme Court is engulfed in dark money segregated schools violated the promise Equal
manipulation being orchestrated to reverse Protection in the 14th Amendment. In Gideon
Americans’ rights, with groups spending big to v. Wainwright, it ruled that the right to
get Trump’s nominees confirmed in order to counsel means a poor man accused of a crime
overturn precedents and statutes those groups has the right to a lawyer. It also ruled that
want struck through cases they are bringing. constitutional protections barred states from
One example is Carrie Severino, who works in criminalizing women’s access to birth control.
concert with Leonard Leo, to operate the
Judicial Crisis Network. JCN spent millions to Much of the focus of right-wing groups is on
get Brett Kavanaugh and Neil Gorsuch demanding the Court overturn Roe v. Wade,
confirmed. And it has is spent millions to help which forbade criminalizing abortion early in
get Barrett installed on the Supreme Court. a pregnancy, and on decisions protecting
LGBTQ Americans from rank discrimination.
Under a related group that was called the
Judicial Education Project (JEP), Severino has Others trying to capture the Court, such as
signed legal briefs that have urged the Court to Charles Koch, have used the controversy over
strike down laws she opposes. those issues to give cover to a far-reaching
agenda to limit the power of Congress to
One of her main targets is overturning the empower agencies to regulate corporations.
Affordable Care Act (ACA), which protects This could neuter the authority to adopt rules
access to health care for millions. The true to regulate carbon and try to mitigate the
funders of both her ads and her litigation devastating climate changes underway.
are not disclosed to the public, but she
has been using enormous sums from
secret sources to get the referees she
wants on the bench to issue rulings.

These undisclosed donors are

spending millions to back Barrett
because of the belief that she will help
them get rid of this law, through raw,
partisan political power in the form of
a judicial fiat.
4. THE COURT HAS BEEN
CAPTURED BY THE GOP AND
FAR RIGHT.

In announcing his decision to support

a hearing from Barrett, Sen. Mitt
Romney asserted: “my liberal friends
have over many decades gotten very
used to the idea of having a liberal
court.” The reality is that for the past
five decades, the Court has been
dominated by GOP appointees, whom
right-wing activists and zealots believe have (Rehnquist was confirmed to an Associate and then to a
not gone far enough to reverse people’s rights. Chief Justice seat; and so each appointment is counted.)
 4

FOUR KEY FACTS ABOUT She Refused to Recuse. Barrett refused.

BARRETT’S NOMINATION. Rather than Promise to Recuse, Barrett
Referenced an Unreviewable Rule.
Other organizations have issued profiles about
Instead of pledging unequivocally to recuse
Judge Barrett’s background, statements on
and remove any doubts about her fairness on
issues, and troubling opinions she has issued
this, she stated she would apply the rule
during the 30 months she has worked as a
regarding recusal. However, she knows a
judge. This backgrounder will not reprise
Justice’s recusal is solely in her discretion, and
those but will focus on four facts relevant to
that a justice’s refusal to recuse from a case is
her unfairness and unfitness for a promotion.
unreviewable: “[T]here is no formal procedure
1. Trump wants her confirmed because for court review of the [recusal] decision of a
he thinks she will help his election. justice in an individual case. This is because it
has long been settled that each justice must
The Election Results Are at Risk. Days decide such a question for himself.”
after Ginsburg died, Trump said “I think this
[the election] will end up in the Supreme She Could Easily Have Pledged to
Court, and I think it's very important that we Recuse Based on Recent Precedent. In
have nine justices." He added “I think having Caperton v. A.T. Massey Coal (2010), the
the four-four situation is not a good situation Supreme Court ruled that a state supreme
if you get that... just in case it would be more court justice was required to recuse in a case
political than it should be, I think it’s very involving the man who helped put him on the
important to have a ninth justice.” Based on bench: “Just as no man is allowed to be a
the recent Pennsylvania ballot case, she could judge in his own cause, similar fears of bias
actually cast a tie-breaking vote in his favor. can arise when—without the other parties’
consent—a man chooses the judge in his own
Unprecedented. Trump made a claim no cause,” the majority wrote.
other president has: “Get rid of the ballots and
you'll have a very peaceful--there won't be a Assurances She Made No Commitment
transfer, frankly, there'll be a continuation.” to Trump Are Disingenuous. Barrett and
the White House know the Senate Judiciary
Lawsuits Underway. The Trump campaign Committee’s Questionnaire asks if any
has filed suits in seven states to stop efforts to commitments were asked or made and so no
expand absentee ballot access despite the commitments are ever expressly sought.
pandemic. His allied GOP governors have
issued dramatic orders greatly limiting 3. Trump Chose Barrett to Overturn the
locations for dropping off ballots, which are ACA, Reverse Roe v. Wade, and More
also being litigated. There is every reason to
believe Trump’s lawyers will urge the Supreme Trump Promised to Put People on the
Court to stop the counting of absentee ballots Court to Overrule the ACA. Trump
submitted by mail or drop boxes, in a Bush v. campaigned for office on ending the ACA and
Gore II scenario, replete with baseless or has sought to dismantle the law that secures
greatly exaggerated claims of voter fraud. access to health care for millions of
Americans, including more than 100 million
2.Barrett refused to commit to recusing people with pre-existing conditions, through
herself, despite good reasons to do so. Congress, regulations, and appointments to
the federal courts. He also said: “I’m
Asked to Recuse. Sen. Patrick Leahy (D-VT) disappointed in Roberts because he gave us
noted Trump expects Barrett “to side with him Obamacare, he had two chances to end
in an election dispute.” Sen. Richard Obamacare, he should have ended it by every
Blumenthal (D-CT) observed: “Your single measurement and he didn’t do it, so
participation … in any case involving Donald that was a disappointing one. Everybody
Trump’s election would immediately do thought he was good, he was a Bush
explosive harm to the court’s legitimacy and to appointee, he was somebody that should have,
your own credibility,” Blumenthal said, frankly, ended Obamacare, and he didn’t.”
adding: “You must recuse yourself.”
 5

SIDEBAR: RECUSAL AND FAIRNESS special position to influence

The Code of Conduct for U.S. Judges details the judge.”
conditions requiring recusal and applies to all
of the lower court judges in the federal court
system. It does not, however, apply to the U.S. “An appearance of
Supreme Court, which has refused to adopt it.
U.S. Supreme Court justices make their own impropriety occurs when
determinations about recusal without any reasonable minds, with
binding code of ethics and without review.
knowledge of all the relevant
That Code includes cannons and commentary circumstances disclosed by a
that should bind the nation’s highest court in
order to instill confidence in the integrity of reasonable inquiry, would
the judiciary, such as: conclude that the judge’s
“An independent and honesty, integrity,
honorable judiciary is impartiality, temperament, or
indispensable to justice in our fitness to serve as a judge is
society. A judge should impaired.”
maintain and enforce high But even these ethical guidelines simply do
standards of conduct and not go far enough to ensure that the integrity
and fairness of the judiciary are protected.
should personally observe
those standards, so that the That is because a major issue has emerged
that was not contemplated at the time when
integrity and independence of the Code of Conduct for U.S. Judges was first
the judiciary may be adopted in 1973. That issue is the bias and
appearance of bias created when a group
preserved.” spends millions to help a judicial candidate
win a seat to get laws it dislikes overturned.

“A judge should not allow That is because “the appearance of corruption

can be as bad as corruption itself and ... weak
family, social, political, recusal rules erode trust in the justice system,”
financial, or other as Common Cause Wisconsin has said.
relationships to influence This is also a challenge for state high courts:
judicial conduct or judgment. “Supreme Court races have become very high
money races. There are millions of dollars
A judge should neither lend being spent, not only by the candidates, but
the prestige of the judicial more importantly by the advocacy groups,
third party special interest groups. And the
office to advance the private perception is, every time they vote consistently
interests of the judge or with a group that has contributed money to
their campaign or helped them get elected,
others nor convey or permit people question the impartiality of that
decision. It is giving a sense to the public that
others to convey the justice is for sale,” as former Wisconsin
impression that they are in a Supreme Court Justice Janine Geske noted.
 6

Despite Claiming She Is Not Hostile to Carrie Severino and Gary Marx, Judicial Crisis
the ACA, She Has Attacked It. She wrote a Network;
law review article attacking it and also Chief William Mumma, Becket Fund;
Justice John Roberts, which some of Trump’s David Bossie, Citizens United;
claims about the Affordable Care Act echo. Jenny Beth Martin, Tea Party Patriots;
Kelly Shackleford, First Liberty;
The next ACA case will be argued on Ed Whelan, Ethics and Public Policy Center;
November 10, and Barrett may be hearing it. Heather Higgins, Independent Women's
Forum and Independent Women’s Voice;
4. Trump Promised the Religious Right
Jean Mancini, March for Life;
Wing He’d Appoint Supreme Court
Marjorie Dannenfelser, Susan B. Anthony List
Justices Who Would Overturn Roe v.
Carol Tobias, National Right to Life;
Wade. Trump said overturning the landmark
Maureen Ferguson, Catholic Association;
precedent “will happen automatically” if he
Mike Davis, Article III Project;
gets his nominees to the Court confirmed.
Penny Nance, Concerned Women for America;
She Has Called for Roe to Be Overruled. Cleta Mitchell, legal advisor to several groups;
Kay Coles James and John Malcolm, Heritage
Brett Kavanaugh Promised to Follow Foundation;
Precedent in His Hearings, Too, But Tom Fitton, Judicial Watch;
Soon After He Was Confirmed He Voted and Kristan Hawkins, Students for Life.
to Overturn Roe. Sen. Susan Collins (R-
ME) claimed she believed his assurances All of these individuals represent groups
despite ample evidence they were unreliable. seeking to overturn major legal precedents as
Why would anyone believe Barrett’s similar well as statutes passed by Congress.
assurances she will follow legal precedents?
Most of them have expressly called for the
Other Precedents Are in Jeopardy. These Supreme Court to overturn Roe v. Wade.
include Obergefell (gay marriage), civil rights,
and numerous legal precedents delegating to Several have asserted in briefs that a company
agencies the power to regulate corporations. has a right to have its religious “beliefs” trump
the rights of a woman to have access to birth
Despite being chosen because she satisfies control under the Affordable Care Act.
such inappropriate litmus tests to overturn
laws, Barrett and GOP Senators have asserted For example, some of these groups submitted
repeatedly she will merely follow the law. amicus briefs in the Hobby Lobby case, where
Barrett Is Backed by Dark Money a 5-4 partisan majority of the Court allowed a
Groups Seeking to Reverse Precedents. discount retailing company to claim its faith
“beliefs” allowed it to bar the clerks who work
Several groups seeking to overturn these and at its crafting stores from accessing IUDs--a
other precedents attended the Covid-19 super- common birth control device--through their
spreader event in the Rose Garden for employee health insurance under the ACA.
Barrett’s nomination and have been raising or Despite Hobby Lobby’s claimed devotion to
spending money on ad campaigns to get her spiritual commands not specified in the Bible,
installed on the Court. the company and its leaders found the dictate
“thou shalt not steal” inapplicable to their
Some, like Carrie Severino, have also theft of 11,000+ ancient artifacts from Iraq.
submitted secretly-funded amicus briefs to the
Court calling for laws they dislike to be Increasingly, a right-wing cabal on the Court
reversed, as Sen. Whitehouse detailed at the is trying to use the First Amendment’s
hearing on Barrett and in his book. protection of freedom of worship not as a
shield but as a sword to strike down the legal
Numerous leaders of right-wing groups rights of other people, attacking equal
attended the White House event announcing protection of the law for LGBTQ Americans --
Barrett’s nomination, including: as Justices Thomas and Alito recently made
clear in their statement on the Kim Davis case.
 7

FOUR KEY FACTS ABOUT Leo files no financial disclosures for

this role and has increased his assets.
LEONARD LEO AND HIS Because Leo is a “volunteer” in picking Trump
DARK MONEY NETWORK judges and not a federal employee/appointee,
he has not filed any financial disclosure forms
Leonard Leo plays a singular role in the GOP’s
which would reveal sources of his income and
court capture, as a near-decisive chief in the
the nature of his investments. Such forms are
selection process who orchestrates donations
designed to root out conflicts. What is known
to get his judicial picks confirmed. Ginni
from public records shows increased wealth.
Thomas, the fringe partisan activist married to
Justice Thomas, bragged to United in Purpose In 2018, the year Trump nominated Brett
that Leo “has single-handedly changed the Kavanaugh to the Supreme Court, Leo paid off
face of the judiciary under the auspices” of the a 30-year mortgage he took out on his home in
Federalist Society. She added: “He has many 2010, paying it off 22 years ahead of schedule.
hats. That isn’t even all he does. He doesn’t
really tell all that he does, but I know enough On the eve of Kavanaugh’s confirmation vote,
to know he’s a force of nature. He’s a in October 2018, Leo closed on a 12-bedroom
disciplined strategist … and a hero to me.” Maine mansion, a $3.3 million sale of a robber
baron’s estate valued at more than $4 million.
1. Leo, a Leader of the Federalist
Society, Was Tapped by Trump to In fact, the tax filing now available from the
Create the List of Judges He Picks Federalist Society for 2018, when Leo was its
From, But His Finances Are Not Public. Executive Vice President, shows he took a
nearly $100K pay cut that year in his total
Leo is Trump’s “judge whisperer.” In compensation. However, he was flush with
2016, Trump asked Leo to create a list of funds to pay off his mortgage in the tony DC
potential Supreme Court nominees and Leo suburbs and buy a waterfront estate in Maine.
did. He continues to aid Trump and also
makes recommendations for lower courts. Last year, in 2019, Leo hosted a fundraiser at
that very mansion for Sen. Collins, who cast a
After Trump became president, Leo worked key vote for Kavanaugh’s confirmation.
with White House Counsel Don McGahn on
the nomination of Neil Gorsuch to fill the According to FEC filings, donors to Collins at
vacancy created by Justice Antonin Scalia’s that protested event included Neil and Ann
death. Sen. McConnell, Sen. Lindsey Graham, Corkery, anti-choice/anti-gay activists at the
and others held that vacancy open for more center of Leo’s dark money network. Neil
than 400 days, blocking a hearing on Corkery ran the Wellspring Committee, and
President Obama’s nomination of the other groups. Ann was also a law partner with
uncontroversial Judge Merrick Garland. Pat Cipollone, the White House Counsel.
 8

2. Leo’s Dark Money Ring Is Growing. received major funding from Charles Koch’s
network. After Scalia died, it got more than
In 2019, the Washington Post documented $28M from one donor. In 2016-17, it gave JCN
how Leo sits at the hub of a secretive scheme $38M, as JCN blocked Garland and backed
to capture the courts and remake our laws, Gorsuch. After Kavanaugh was confirmed, it
with a cadre of his confidantes and groups. closed. In all, it gave JCN more than $58M.
The Post tallied that dark money network at
$250 million, before the tax reports from 2018 Rule of Law Trust. As Wellspring was being
around Kavanaugh’s confirmation. True North disposed of, Neil Corkery created this group in
Research’s updated tally is now over $400M. 2018. Leo is listed as its only trustee. RLT
This does not include any spent for Barrett’s received nearly $80M from sources that are
nomination. Here are some of those groups: not public, and almost all its known expenses
were related to BH Group reimbursements.
CRC Advisors. In 2020, Leo announced he
was moving from Executive Vice President to Judicial Education Project/85 Fund. It is
Co-Chair of the Federalist Society to lead a a Neil Corkery entity. JEP’s other fictitious
for-profit group dubbed CRC Advisors. It names are the Law and Policy Forum and the
advises wealthy donors how to influence who “Honest Elections Project” (HEP), which has
becomes a judge or state Attorney General been criticized for peddling voter fraud claims.
(AG) and how to hide that influence. Its CEO In Severino’s name, JEP has filed amicus
is his friend Greg Mueller, who led Creative briefs siding with Trump on emoluments, and
Response Concepts (CRC), a comms firm Koch in cases on abortion, the Affordable Care Act,
groups have hired. Jonathan Bunch is its Deferred Action for Parents of Dreamers, the
Executive Director, formerly a Society staffer. Voting Rights Act, and attacks on workers.

Judicial Crisis Network/Concord Fund. America Engaged. Leo is its President, and
After the 2004 election, the Judicial Crisis Bunch is a Director. Other board members are
Network (JCN) was conceived at a small C. Boyden Gray and Todd Graves, a former
dinner party Leo attended with Neil Corkery state AG. It has given nearly $4M to Charles
and others. Justice Antonin Scalia was a guest. Koch’s Freedom Partners. In 2017, it gave
Launched as the Judicial Confirmation nearly $1M to the NRA as it backed Gorsuch.
Network, it was created in anticipation of the
Supreme Court vacancies that George W. Bush BH Group. This was created by Corkery after
ultimately filled with Justices John Roberts Scalia died. Leo controls 35% of it, and he has
and Samuel Alito. Corkery was one of three been listed as an employee. It received $947K
original board members, with Gary Marx (a from JCN and $1.3M from JEP. It also passed
Ralph Reed operative) and James Hirsen (an $1M to Trump’s inauguration. Wellspring gave
advisor to Mel Gibson’s splinter sect). Corkery it nearly $1.5M for PR, without any website.
has acted as a treasurer of several Leo-linked
groups, in addition to helping to lead the anti- BH Fund. Leo is the President; Bunch is a
gay National Organization for Marriage. Director. It was launched with a secret $24M
donor and gave $20M to George Mason
“JCN is absolutely Leonard’s group. Carrie University’s law school, securing Scalia’s name
[Severino] was working out of the Federalist and Leo’s special influence, as UnKoch noted.
Society office…. The JCN is Leonard Leo’s PR It also gave to Donors Trust and a few others.
organization—nothing more and nothing less,” Freedom and Opportunity Fund. Leo is
according to Leo’s former press rep. JCN is President, with Graves, Bunch, and Corkery
formally led by Severino. It is a major conduit on the board. It gave $4M to the Independent
of money to the Republican Attorneys General Women’s Voice as it sought to keep Scalia’s
Association, the Republican State Leadership vacancy open. It got $400K from BH Group.
Committee (for ads in state Supreme Court
races), and the Rule of Law Defense Fund. Other groups in the tally include Catholic
Voices and Catholic Association/Foundation.
Wellspring Committee was created and (Corkery also helped peddle climate denial via
run by Ann and Neil Corkery. It initially the Fund for Accountability and Civic Trust.)
 9

3. Leo Co-Chairs the Federalist Society, Big Secret Donors, Huge Corporations,
Which Has Helped Capture the Courts. and Corporate Agendas.

Much More than a Debating Society. The The Federalist Society’s two largest “known”
Federalist Society was created in 1981 as a funders are Donors Trust and Donors Capital
debating society to push a “conservative” and Fund, which were created specifically to hide
“libertarian” agenda in law schools. Antonin the identity of the real donors. According to
Scalia was one of its first advisors, before DeSmog, these secret donors have given the
President Reagan made him a judge. It backed Federalist Society a combined total of well
him for the Supreme Court. over $35 million in recent years.

Becoming a law school advisor

was almost a fast-track to a
nomination for a federal
judgeship, as with Scalia, Robert
Bork, and Frank Easterbrook.

By 1986, “more than half the 153

Reagan-appointed Justice
Department employees and all 12
assistant attorneys general [were]
members or ha[d] spoken at
Federalist Society events.”

One leader predicted: “Twenty

years from now we will see our
Cabinet secretaries and Federal Justices The Federalist Society’s biggest donor whose
coming from the Federalist Society.'' identity is known is the Bradley Foundation. It
is a $700M fund from the inherited wealth of
Almost 40 years later, five of the current anti-labor industrialists. Its board is led by
justices on the Supreme Court were either Koch allies and billionaires Art Pope and
members of or have been frequent speakers at Diane Hendricks. Bradley has also secretly
its events. Most of Trump’s circuit court funded JEP’s amicus briefs to the Court, as
nominees have deep ties to the group. True North Research recently documented.

For example, 5th Circuit Judge Edith Jones Other donors that have given it seven-figure
credited the Federalist Society, Leonard Leo, sums include the Koch family foundations,
and its director, Eugene Meyer, with putting Robert Mercer’s foundation, and the Searle
five new Trump judges on that court in less Freedom Trust, created from the Metamucil
than a year. (That tally is now 6 out of 17.) At fortune. Both Koch and Searle also fund amici.
that event, Justice Thomas joked that Leo was
“the third most powerful man in the world.” Some members are GOP election lawyers who
work to limit Congress’ power to pass laws like
The Federalist Society Gala in 2019 featured McCain-Feingold to limit dark money.
Sen. McConnell bragging about capturing the
Court and how “we have flipped the 2nd The Federalist Society is also stacked with
Circuit, the 3rd Circuit, and we will flip the corporate attorneys whose day jobs are to
11th Circuit.” He proclaimed that blocking defend some of the biggest corporations in the
Garland in the 2016 election year was the world. Through its articles and events, the
most important decision of his life. And, in a Federalist Society advances an agenda to limit
foreshadowing of his efforts to push Barrett the ability of Congress and federal agencies to
onto the Court despite this election, he told regulate corporations, including polluters, and
the Federalist Society crowd that his new to thwart mitigation of climate change--while
motto was: “leave no vacancy behind.” claiming this is a merely neutral philosophy.
 10

4. Leo Chose Barrett for the Short List Leo’s Agenda for “Constitutionalist”
for Trump, Possibly for RBG’s Vacancy. Barrett Is Far-Reaching. She represents
far more than the anti-choice and anti-ACA
Leo Pre-Nominated Barrett. According to agenda of Leo and his funders. Here is what
a new book co-authored by Severino--who Leo said last year behind closed doors at the
worked closely with Leo on the pressure Council for National Policy after Kavanaugh’s
campaigns to block Garland and install confirmation, as Bob O’Harrow and Shawn
Gorsuch--Leo met with then-White House Boberg of the Washington Post reported:
Counsel Don McGahn in April 2017 about
expanding Trump’s Supreme Court list to “We stand at the threshold of an exciting
include Barrett. moment in our republic: the revival of our
structural Constitution by the U.S. Supreme
At that time, Barrett had been a law professor Court, a revival in those very important
for 15 years and had no judicial experience, principles of limited constitutional
but Leo and the White House Counsel’s Office government—separation of powers,
were going to remedy that by getting her some federalism, enumerated powers, limits on
time sitting on a federal circuit court. judicial power, sovereignty—and this is really I
think, in recent memory, a newfound embrace
In May of that year, Trump nominated Barrett of limited constitutional government in our
to a vacancy on the Seventh Circuit created by country. I don’t think this has really happened
McConnell’s refusal to allow President since probably before the New Deal, which
Obama’s nominee, Myra S. Powell (the first means no one in this room has probably
black woman appointed to the Indiana experienced the kind of transformation that I
Supreme Court), a hearing for nearly a year. think we are beginning to see.”

Leo Lobbied Trump to Add Barrett. The decades before the New Deal, known as
According to Severino, Leo met for dinner the “Lochner Era,” were marked by extreme
with Trump in June and September about judicial activism where courts struck down
making Barrett a candidate on Trump’s list for protections people clamored for to regulate
the next vacancy on the Supreme Court, which the business activities of industrialists whose
was thought to be RBG. Barrett was confirmed wealth and agenda had dominated U.S. law.
to the Seventh Circuit on Halloween of 2017.
The echo of that laissez-faire activism can be
On November 17, McGahn announced that heard in the remarks of then-Federalist
Trump had added Barrett to his short list. Society advisor Antonin Scalia at its first
That announcement came during the Society’s national meeting: "the free market has the
National Convention, where Barrett spoke ability to order things in the most efficient
about Scalia for whom she had clerked. manner, and generally should be allowed to
operate free of government intervention."
Barrett has been a frequent flier for
Federalist Society events. After becoming That approach, dubbed “public choice” theory,
a federal judge, Barrett suddenly appeared to has been infused into an agenda to reverse a
have a lot more time to speak at Federalist century of law. Professor Nancy MacLean uses
Society events than when she was teaching a the phrase “democracy in chains” to describe
few classes a semester as a law professor. In public choice theory, which favors very limited
her nearly three years paid to be a federal government and has been fueled by Charles
judge, she addressed Federalist Society Koch, one of the richest men on this earth.
meetings almost two dozen times. It is the
group to whom she has spoken most “Limited constitutional government” is a
frequently. She was previously a member. variation on the “limited government” mantra
used by major Koch-funded groups, like
She also has close ties to Alliance Defending Americans for Prosperity, the Cato Institute,
Freedom, an anti-LGBTQ group whose claims and the American Legislative Exchange
have been published by the Federalist Society. Council, all of which strongly back Barrett.
 11

FOUR KEY FACTS ABOUT Koch’s network also took credit for pressuring
three Democrats it targeted (Sen. Manchin,
KOCH, COURTS, + BARRETT Heitkamp, and Donnelly) to vote for Gorsuch.
It said it “contacted nearly 400,000” people.
“We’re literally creating a generational change
in the direction of the courts,” Sen. Thom
For Kavanaugh, the Koch network spent big to
Tillis (R-NC) crowed to wide applause at
push his confirmation even before hearings
Charles Koch’s semi-annual gathering of
began and erupted in controversy over
billionaires in 2018, according to CNN. That
evidence he had lied under oath and had
was after Gorsuch was confirmed to the
attempted to sexually assault a fellow teen,
Supreme Court seat Sen. McConnell blocked
Christine Blasey Ford--which he denied.
Obama from filling and well before the Senate
Before September, it had already contacted
had confirmed more than 200 federal judges,
more than 1.2 million people and its video
backed by Koch groups, to lifetime seats.
reached millions of viewers. AFP also sent
mailers targeting Sen. Heitkamp and others.
Although Charles Koch has sought to distance
The total spent was not specifically disclosed.
himself from Trump the man, his network
have been very successful in using Trump the
administration to accomplish “once-in-a-
generation” tax cuts, rollingback regulations
protecting our environment, and capturing the
courts, as Nick Surgey of Documented noted.
The Koch network spent heavily in 2016 to try
to retain Republican control of the Senate, and
that spending buoyed Trump in swing states, a
playbook it tried to run again in 2018. His
political arm, Americans for Prosperity (AFP),
bragged that 2020 will be its biggest year ever.

1. Koch Is Invested in Court Capture.

With Barrett’s election-eve appointment on

the line, Koch’s AFP said it is “all in” for her.

In a memo obtained by Documented and the

Intercept, Koch’s Seminar Network (which is As Leo, speaking as a leader of the Federalist
now called Stand Together and was previously Society leader, stated: “We’re going to have to
Freedom Partners Chamber of Commerce) understand that judicial confirmations these
detailed how it gets judges it wants confirmed. days are more like political campaigns...” That
is exactly what the Koch and Leo dark money
In that memo to uber-rich donors (most of network groups, like JCN, do. The amount
whom are secret from the public), the Seminar they are spending to back Barrett is unknown.
Network noted how the groups Koch’s donor
collective funds mobilize activists in order to Koch is not the only wealthy interest focused
support Trump’s judicial nominees. It also on capturing the courts, but he does represent
stated that Koch’s Freedom Partners, perhaps the most enduring and devoted of
Concerned Veterans for America, and AFP those investing in changing the rules through
“have also been engaging in direct, under-the- changing who rules on those rules. As detailed
dome tactics, working with allies like the in “Captured Courts” by the Democratic Policy
Federalist Society.” It also described how it and Communications Committee, the GOP’s
used paid and earned media and had spent court capture is already “rolling back the clock
millions on waves of “direct mail, television on civil rights, consumer protections, and the
and digital advertising [targeting Senators], rights of ordinary Americans... in favor of
and phone-banking and door-knocking.” corporate and Republican political interests.”
 12

2. Koch’s Effort Is Deeply Tied to Leo. Moreover, as Connor Gibson has explained,
Koch did not think the Powell Memo went far
As the Koch network’s memo noted, it has enough. Koch gave a cornerstone speech on
funded Leo’s Federalist Society. The Society “Anti-Capitalism and Business” at his Institute
has also had one corporation regularly listed for Humane Studies in 1974. He attacked taxes
for years on its annual report as giving at least as theft, the minimum wage, “so-called equal
$100,000 a year: Koch Industries, which is opportunity requirements, safety and health
one of the largest conglomerates in the world. regulations, land use controls [and] licensing.”
He also urged businesses to invest only in
The Federalist Society has also received nearly
public institutions that “contribute in some
$8 million or more from the Koch fortune over
way to our individual companies or to the
the past two decades. The amount Koch has
general welfare of our free enterprise system.”
given personally is not known, if any, nor is
the actual amount given by his corporation. Through his Cato Institute and as the biggest
funder of the Libertarian Party, Koch also
Additionally, in 2018, the Koch network hired
attacked Social Security, protecting
Leo’s key Federalist Society staffer on state
endangered species, the idea of a Department
courts, Sarah Field, to be AFP’s Vice President
of Energy—as DeSmog detailed—and more.
of Judicial Strategy. Field actually worked for
Koch groups long before then. She had also He also used IHS to partner with the Liberty
helmed “Liberty Central,” the controversial Fund to host gatherings of lawyers to advance
political operation of Ginni Thomas, after his libertarian theories, in a precursor to the
Ginni left it for the entity “Liberty Consulting.” Federalist Society. One of the first successes of
that effort was advancing a new legal theory
3. Koch’s Efforts Date to the 1970s.
that the Constitution’s Fifth Amendment
Although Koch’s big investment in efforts to requires just compensation not only for the
capture our courts is recent, his interest in taking of land but for the impact of regulations
influencing our courts dates back decades. --by inventing the doctrine of “regulatory
takings.” Through these and similar programs,
As Jane Mayer detailed in Dark Money, Koch Koch’s operations cultivated lawyers and
has worked since the 1970s to operationalize professors like Henry G. Manne (later the
“the Powell Memo.” She called the Memo for Dean of GMU’s law school) and Richard
the Chamber of Commerce by then-tobacco Epstein to advance novel revisions of the law.
lawyer, and future Justice, Lewis Powell:
Since the 1960s, Koch has also sought to
“a brilliant battle plan detailing how promote the writings of Ludwig von Mises, a
conservative business interests could reclaim free market fundamentalist who attacked New
American politics. In the spirit of Hannibal, it Deal policies like Social Security. Efforts by
called for a devastating surprise attack on the Koch and others to promote this once-obscure
… establishment, which regarded itself as Austrian economist almost led to the
nonpartisan but which the conservatives Federalist Society naming itself the Ludwig
regarded as liberal. Carrying out this attack von Mises Society. Also, at its launch, it was
would be an alternative opinion elite that expressly described as both conservative and
would look like the existing one, except that it libertarian, despite the failure of the
would be privately funded by avowedly Libertarian Party in the polls, with David
partisan donors intent on implementing a pro- Koch’s loss in the 1980 election. Koch is not
business—and, critics would say, self-serving listed as a founding funder, but he has made
—political agenda.” up for that with millions since.
As Charlie Cray of Greenpeace has noted, the Koch also funded the creation of right-wing
Memo urged CEOs to invest in universities litigation outfits, like the Institute for Justice,
and think tanks, and in efforts to “exploit[]” and other legal groups. As Koch Industries
the judicial system and to fund litigators and also faced federal and state litigation over its
amicus briefs to advance businesses’ agenda. pollution, he also began funding posh judicial
 13

“seminars” to train judges how to think about standing legal precedent has helped insulate
litigation, as the late Doug Kendall proved. agency expertise from second-guessing by
courts, so long as Congress has not preempted
4. Koch Stealthily Funds Efforts to its interpretation and the agency was
Repeal Rules + Rights Including Voting. reasonable. (Leonard is the author of the book
Kochland, which details how protecting
Sen. Whitehouse observed that: “Decades ago, carbon from regulation is the top priority of
big corporations and right-wing ideologues Koch Industries and core Koch groups.)
figured out that judges with life tenure can
carry out their unpopular agenda and cement Other lines of attack to advance the so-called
those political victories for decades.” structural constitution focus on powers vested
by the Constitution in the three branches of
That is one of the reasons why the GOP has government and whether those powers can be
chosen to nominate such young ideologues to delegated. One version of this is to challenge
the Supreme Court. In his autobiography whether Congress can constitutionally pass a
Square Peg, Sen. Orrin Hatch takes credit for law that gives an agency judicial authority to
blunting the impact of President Clinton’s adjudicate cases or whether that cannot be
nominees, Ruth Bader Ginsburg and Stephen delegated. Another variant on this is to attack
Breyer, by getting the GOP caucus to allow an agency’s power to issue rules by claiming
them quick votes because they would not serve they violate some notion that only Congress is
as long as younger and more hardline judicial vested with the power to make laws. Forcing
picks of the GOP, like Clarence Thomas. In all laws to be via statutes, and not regulations
good health, Barrett could issue rulings from enforcing those statutes, would limit oversight
the Supreme Court beyond the year 2060. and allow corporations to use their formidable
lobbying influence to grind down statutory
Koch’s groups variously deploy all levers to regulation through filibusters and more.
accomplish Koch’s agenda: lobbying against
bills and rules, getting rules repealed when Another variation on this theme comes in the
they have a Koch-friendly administration, form of the “unitary executive” theory which,
litigating regs, and packing the courts with among other things, contends that Congress
judges hostile to regulation and agencies. cannot create “independent” agencies and that
any executive branch employee can be
In its memo to donors, the Koch network also dismissed by the President. Litigation or
touted its success at getting the Trump amicus briefs along these lines has been
administration to repeal or curtail rules, such pursued by Koch-funded groups like Cato and
as those regarding the Clean Power Plan, the the Heritage Foundation, as the DSCC noted.
Consumer Financial Protection Board, the
Keystone XL Pipeline, bars of fracking on However, some of these structural attacks are
public lands, estate tax rules, independent already well underway, as noted above with
contractor standards, labor rights, and, of regard to voting rights. It would be easy to
course, key ACA regulations. Koch would not believe that Koch-subsidized litigation focuses
have to spend so much on lobbying, however, only on challenging business regulations it
if he could get Justices to clear the field and dislikes. The reality is that its proponents have
bar Congress or agencies from having power, aggressively pursued an assault on democratic
under new interpretations of the Constitution, principles. Koch-funded groups have been
to make such rules in the first place. part of “flotilla of amici,” as Sen. Whitehouse
coined, not just on the ACA but in attacks on
That is what the “structural Constitution” the very structure of our democracy, such as
theory Leo and the Federalist Society have through gutting the Voting Rights Act and
trumpeted is really all about. Some of the Congress’ power to limit dark money. Koch’s
litigation to advance that agenda through Cato has played a key role. (See also our report
judicial rulings is already underway. For alleged election violations by Koch groups.)
example, as Chris Leonard described in the
New York Times, part of this agenda is an Notably, Sen. McConnell has praised the Koch
attack on “Chevron” deference. That long- network for supporting the Citizens United
 14

decision, which unleashed a tsunami of dark unlimited dark money floods elections;
money, and for their help in elections, saying: unwelcome voters are suppressed at the polls.”
“I don’t know where we’d be without you.”
This fight over the Supreme Court is about the
CONCLUSION reproductive rights of women protected in Roe
v. Wade and many rights Americans rely on.
Every day in America, judges decide cases that
But it is not actually about the ideological
have a big effect on our rights and our future:
battle-lines that one partisan faction has tried
to draw rhetorically: whether courts will have
If our families can access what they call “conservative” judges who are
needed health care in this “strict constructionists” who “will follow the
pandemic and beyond; rule of law” or if we have “liberal” “judicial
activists” who “will make the law.” That
If our right to vote is rhetoric by Leo/Koch/etc. misleads, greatly.
protected from partisans
This is especially true because the judges who
who unregister voters or who are the most “activist” hail from the partisan
block the counting of votes; right wing of the GOP, as shown by deeply
partisan decisions like Bush v. Gore, Citizens
If we can require fossil fuel United, Shelby County v. Holder, Husted v.
corporations to limit carbon Randolph Institute, Janus, and more. In each
emissions that are harming of those cases, the Court majority actually
our climate and our future; sided with the position taken by that same
political party, its leaders, or its rich donors.
If huge companies can take
Under America’s system of “checks and
away people’s constitutional balances” we entrust judges with the power to
right to jury trials through make fair and impartial rulings. They guard
forced arbitration; against factions of elected representatives
abusing their power by rigging our elections to
If nursing homes can be undermine our democracy or take away our
made to pay fully for injuries basic rights. Fair judges are essential to a well-
caused to parents and functioning democracy because judges are
grandparents by poor care; entrusted with the power to ensure our rights
are not trampled by the rich or powerful few.
If voters can know who funds We have a right to expect our Supreme Court
TV and digital attacks ads to be fair and follow legal precedents. But
that help elect those who are Barrett was chosen for the opposite reason:
supposed to represent us; because her champions believe she will
reverse decades of precedents they dislike.
If two adults who love each
other can marry or legally or At root, the issue in Barrett’s nomination is
nothing less than whether our courts will be
be discriminated against, fair or if they will be filled with judges chosen
and much, much more. with the expectation they will undo our rights
and groomed to be hostile to the precedents
As Sen. Whitehouse has noted: “right-wing that have defined modern America.
donor interests funnel hundreds of millions of
anonymous dollars through a complex web of The Senate’s legitimacy has been tarnished by
front groups to achieve things Republicans the farce pursued by the President’s apologists
can’t get past voters. Polluters are more free to in the Senate. And the Supreme Court’s own
pollute; gun makers can sell more guns; legitimacy is at stake with the appointment of
regulated industries enjoy weaker oversight; Judge Amy Barrett and the decisions ahead.
 15

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About Us

This backgrounder has been prepared by Lisa Graves for True North Research. Graves is the
Executive Director of True North Research, a watchdog that investigates corporate interests
distorting American democracy. She is also the co-curator of KochDocs.org and helps lead the Ben
Franklin Project and the BOLD ReThink. She has previously served as the Chief Counsel for
Nominations for the U.S. Senate Judiciary Committee, a Deputy Assistant Attorney General at the
U.S. Department of Justice (where she worked on judicial selection and fair courts), and Deputy
Chief of the Article III Judges Division of the Administrative Office of the U.S. Courts (where she
advised on anti-corruption measures). She began studying the Federalist Society in 1989 and the
nomination and confirmation process in 1991. Her analysis has been cited in many books, articles,
and interviews. She is the co-founder of Documented Investigations and is president of the board of
the Center for Media and Democracy. www.linkedin.com/in/thelisagraves.

Evan Vorpahl, Caroline Jones, and Alyssa Bowen of True North Research contributed research to
this backgrounder.

To arrange for an interview, please contact Kyle Moler at [email protected], p: 321-345-1758