Today President Biden announced Judge Ketanji Brown Jackson as his nominee to fill the U.S. Supreme Court vacancy created by Justice Stephen Breyer’s announced retirement. If confirmed, she would be the first Black woman to serve as a justice on the nation’s highest court.
Judge Jackson would join a court dominated by partisan justices handpicked by right-wing dark money networks that have worked for years to swing the Supreme Court and other courts in their favor in an effort to remake Americans’ legal rights to suit a right-wing agenda.
The most recently appointed justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were selected by President Trump from a shortlist personally chosen by right-wing lawyer Leonard Leo, who also helped dark money groups raise more than $400 million to promote right-wing judges and causes in recent years.
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Leo co-chairs the Federalist Society and launched the for-profit CRC Advisors group in 2020, after his central role in directing funds to capture the Supreme Court was exposed by The Washington Post and by Sen. Sheldon Whitehouse (D-Rhode Island).
Although Judge Jackson’s replacement of Breyer would not alter the 6-3 political composition of the Supreme Court, many of the same Leo-affiliated dark money groups are continuing their fight to dominate the institution by attacking Jackson’s appointment. Attacks that delay her confirmation could have serious consequences: If Biden’s nominee is not confirmed before the midterms, Sen. Mitch McConnell (R-Kentucky) could retake control of the Senate, blocking any confirmations until after the next presidential election and thus possibly strong-arming another judicial seat for Republicans.
Right-wing women’s groups like the “Independent Women’s Forum” (IWF), “Concerned Women for America” (CWA) and the “Network of Enlightened Women” (NeW) — all of which preemptively attacked Biden’s shortlist of nominees — have received funding from Leo’s network.
Groups like the IWF are poised not only to use their identity as women’s groups to attack the woman Biden nominates, but also to use their facade of political “independence” to legitimize the right-wing narrative used in recent Supreme Court appointment fights. That false narrative depicts judges selected by Leo as following the “rule of law” and Democratic appointees as “activist” judges, despite clear evidence that Trump appointees vetted by Leo and chosen by his dark money network are taking steps toward overturning major legal precedents, such as Roe v. Wade.
Dark Money Groups Present Their Right-Wing Judicial Doctrine as Apolitical
Even before Biden announced Judge Jackson as the nominee, special interest groups with substantial funding from unidentified donors launched ads targeting Biden’s presumed shortlist of potential nominees. One example is a $75,000 ad buy from the “Club for Growth” — a right-wing vehicle for injecting cash into targeted elections and issues, which has long ties to the Koch fortune — that targeted Latino voters by claiming that Biden overlooked other potential nominees of color by selecting a Black woman.
Meanwhile Leo’s dark money court-capture powerhouse, the “Judicial Crisis Network” (JCN), recently announced a staggering $2.5 million ad campaign painting the Democratic nominee as a “liberal activist” backed by progressive groups.
Recently, the IWF released a video and talking points accusing Democrats of “diversity hypocrisy” for opposing former nominees to the court who are women or minorities because they were not progressive, and accusing Democrats of selecting judges to advance a “woke agenda.” Meanwhile, the IWF has taken more than $600,000 in funding from Leo-backed groups. It has run no ads objecting to the regressive judicial activist agenda that Leo has orchestrated (despite that agenda’s negative impact on women), and instead has spent substantial funds to help get Leo-approved Trump nominees confirmed.
Senator Whitehouse has called such attacks by right-wing dark money groups “squid ink,” a defensive maneuver designed to distract from their own “corrupt operation.” He has described this as “a bizarre reimagining of the very strategy that they, themselves, hatched and executed.”
These attacks seemingly form part of a broader strategy to inaccurately cast right-wing judges and justices as uniquely nonpartisan, despite the concerted right-wing effort to capture the Supreme Court.
IWF Chair and Vicks VapoRub heiress Heather Higgins explained the political expediency of being a right-wing group that appears nonpartisan while describing her group’s role within the right-wing infrastructure to funders at a David Horowitz event: “Being branded as neutral, but actually having people who know that you’re actually conservative puts us in a unique position,” she pitched, touting how IWF can “repackage” right-wing messaging to appeal to women outside the GOP.
Supreme Court justices hold lifetime appointments, intended in part to insulate them from political pressure, and justices are meant to recuse themselves from cases if there could be a public perception of conflict of interest or impropriety.
But several of the right-wing justices have baldly disregarded these guidelines, not only failing to recuse themselves from cases, but also engaging in politically charged events that draw into question their objectivity.
Take Justice Clarence Thomas, for example. He has been singular in his defense of Trump without any apparent concern over his wife’s close ties to the former president. Ginni Thomas has given awards to groups that have filed briefs in the controversial cases before the Supreme Court — from which the justice has not recused himself — and attempted to arrange a meeting with GOP Florida Gov. Ron DeSantis, who she stated has been regularly speaking with her husband. Gorsuch also stirred controversy in February by speaking at a banquet closed to the press (but previously open), part of a Federalist Society event attended by DeSantis and former Vice President Mike Pence. A DeSantis case about redistricting that was recently rejected by the Florida Supreme Court could well be headed for a petition to the U.S. Supreme Court.
It should come as no surprise that the percent of the public that sees the Supreme Court as “independent” has nose-dived to its lowest level in four decades, according to a recent Pew poll, which also found that only 16 percent of adults believe the Supreme Court successfully keeps politics out of its decision making, although most believe it should. Of course, this fantasy that total “objectivity” in relation to judicial decision making is even possible invites some scrutiny, just as the idea of journalistic objectivity has been called into question by those who point out how journalists’ experiential background and social location inevitably shape their ways of understanding issues, no matter how much they aspire to “objectivity.”
Despite the obvious politicization of the Supreme Court by right-wing appointees and the groups that have backed their confirmation, right-wing pundits and dark money groups have asserted that “originalism,” an approach that purports to interpret the “original intent” of the men who wrote and amended the Constitution, is a neutral way to decide the law.
But originalism in effect allows the limited views of long-dead white men to trump the actual language ratified in the Constitution. In other words, there is nothing apolitical about originalism.
The originalist legal framework can be traced back to the backlash against Brown v. Board of Education, the unanimous 1954 Supreme Court decision that found racial segregation in public schools unconstitutional. Originalists condemned that decision by arguing that racial segregation was tradition in the 1800s — and so it was illegitimate to bar racial segregation.
Originalism has even been deployed in part by Justice John Roberts in his decades long crusade to eviscerate the 1965 Voting Rights Act by asserting that the intent of the law was to protect against only the kind of voter suppression that led to the law — not newer, more sophisticated methods.
Roberts’ 2013 ruling in Shelby County v. Holder, just seven years after Congress reauthorized the Voting Rights Act’s provisions for another 25 years due to the ongoing threat of voter suppression and discrimination, is the essence of judicial activism cloaked in originalism. Meanwhile, the concerns Congress expressed in 2006 have been vindicated by the voter suppression unleashed by Roberts and orchestrated by state GOP legislators. In 2021, hundreds of voter suppression laws were proposed in 49 states, fueled by the Big Lie that Trump won the 2020 election. Many of these laws are already disproportionately disenfranchising people of color.
Some right-wing legal activists seek to take the artifice of originalism a step further by appealing to “common-good originalism.” That theory would elevate and impose a vision of religious morality, deeply tied to a socially conservative Catholic perspective, on the U.S.’s pluralistic society. The Constitution expressly forbids religious tests for office.
The Dark Money Women’s Groups Attacking the Courts
Dark money groups that brand themselves as “women’s groups” have been particularly successful at misleading the public and persuading others that they are “apolitical,” playing up the role of their leaders as “concerned moms” and caregivers. The dark money “mom” groups popping up around the country to attack public school curricula — without disclosing their funding sources and GOP ties — highlight that potency.
The Leo-tied Independent Women’s Forum and its sister 501(c)(4) organization “Independent Women’s Voice” (IWV) claim to represent independent or neutral women, even though in many ways, IWF’s agenda does not stray meaningfully from the more religious perspectives of CWA, Susan B. Anthony List and NeW (and their attacks on LGBTQ+ and reproductive rights).
IWF states that it does not take a position on abortion, but its key staffers and fellows actively support overturning Roe. IWF Senior Legal Fellow Erin Hawley — who received nearly $630,000 between 2017 and 2020 as an independent contractor — is also senior legal counsel for Alliance Defending Freedom, a group overseeing the amicus coordination effort of groups in support of Dobbs v. Jackson Women’s Health Organization, the case before the Supreme Court that may overturn Roe.
The similarities of these right-wing groups are particularly evident within the current attacks on Judge Jackson. Concerned Women for America, Network of Enlightened Women and Independent Women’s Forum/Voice have all gone after President Biden for his promise to nominate a Black woman to the Court, despite celebrating Trump’s promise to nominate a woman to fill Ruth Bader Ginsburg’s vacancy in 2020, an analysis by True North Research shows.
IWF and IWV’s funders have historically included the Bradley Foundation (a major financier of voter suppression groups), organizations affiliated with billionaire libertarian Charles Koch, as well as tobacco, fossil fuel and other industries. Since 2014, IWF and IWV have also received more than $4.75 million in funding from Leonard Leo-affiliated groups ($4 million to IWV from the Freedom and Opportunity Fund, $610,000 to IWF from the 85 Fund — formerly the Judicial Education Project — and $150,000 to IWV from Judicial Crisis Network, a fictitious name for the Concord Fund).
IWF and IWV are no stranger to fights over the courts. In fact, IWF emerged out of Women for Judge Thomas, a group launched to back Clarence Thomas’s bid for the Supreme Court and discredit Anita Hill’s testimony that Thomas had sexually harassed her (which he denied but which other women said they too had experienced from him). And IWF visiting fellow Jennifer Braceras testified in John Roberts’s confirmation hearing.
In 2016, IWF and IWV actively tried to prevent President Obama from filling the vacancy caused by Justice Antonin Scalia’s death. And, since its launch in 2019, IWF’s Independent Women’s Law Center has joined the “amicus flotilla” of dark money groups filing “friend of the court” briefs to move the law in a right-wing direction.
The groups spent a substantial amount of money to help force Kavanaugh onto the Supreme Court, despite most American women disapproving of his confirmation, eyewitness testimony being offered under oath that he sexually assaulted Dr. Christine Blasey Ford (though he denied it), and documentary evidence that he had repeatedly lied under oath. IWF fellows and staffers attacked Blasey Ford, suggesting that the Stanford psychologist’s accusations against Kavanaugh were “a publicity stunt,” that she had a “credibility problem,” and that she was “mentally fragile and unstable.” These apparent smears had more potential influence because they were levied by other women.
Notably, IWF and IWV’s leader Heather Higgins was at the White House Rose Ceremony COVID-super spreader event where Trump announced Amy Coney Barrett as his Supreme Court nominee. IWF and IWV rallied for Coney Barrett, including staging an “I’m with Her” event outside of the Supreme Court at the same time as the 2020 Women’s March, as part of their “[broad] strategy of casting criticism of Barrett as anti-woman,” as described by The Intercept.
Higgins even took credit for Kavanaugh’s confirmation, claiming that Sen. Susan Collins confided to her that in the era of #MeToo, she could not have voted for Kavanaugh without the talking points provided to her by IWF. Higgins also claimed that Fox News drew talking points from IWF’s memo. (Notably, in 2019, a year after Kavanaugh was confirmed, Leonard Leo held a fundraiser for Collins at the $3 million mansion in Maine he bought on the eve of Kavanaugh’s confirmation. It turns out Leo has also hosted Clarence and Ginni Thomas at his estate, as detailed by The New York Times.)
And IWF and IWV’s work to appear neutral has been rewarded by appearances on and publications in mainstream news outlets, such as CNN, MSNBC, NPR, The Hill, The Washington Post and others. IWF and IWV members have also been invited by Republicans to testify before Congress against equal pay protections for women, against ratifying the Equal Rights Amendment, and against federal paid family and medical leave — all policies that would benefit many women and families.
In the coming weeks and months, Americans are likely to see more of IWF and other right-wing women’s groups leading the opposition to Biden’s nomination of Judge Jackson. As they do so, the public should be aware that these groups are anything but “apolitical” groups of “concerned moms” — rather, they are part of a coordinated, dark-money-funded infrastructure that has been clear in its desire to turn back the clock on women’s rights.