Senate Democrats Release New Captured Courts Report on One-Year Anniversary of Barrett Confirmation Showing String of Wins for Right-Wing Donor InterestsOctober 26, 2021
Big-money special interests reap huge return on dark-money investment
Sweeping protection for dark money interests and widespread use of “shadow docket” dominate 6-3 Republican-appointed majority’s record
Washington, DC – Senate Democrats – led by Democratic Policy and Communications Committee (DPCC) Chairwoman Debbie Stabenow (D-MI), Majority Leader Chuck Schumer (D-NY), and Senate Judiciary Courts Subcommittee Chairman Sheldon Whitehouse (D-RI) – released a new Captured Courts report examining the record of the new 6-3 Republican-appointed majority on the Supreme Court.
In the year since Senate Republicans rushed Justice Amy Coney Barrett onto the Court while voting was underway for the 2020 election, the Republican-appointed Supreme Court majority has delivered a spate of victories to the right-wing donor interests that propelled Barrett and other Trump justices to the bench. The decisions benefited these donors at the expense of ordinary Americans: eliminating women’s right to abortion in Texas, undermining landmark civil rights protections, boosting corporate interests over workers, and carving out a constitutional protection for their dark money court capture machine. Many of the majority’s decisions deployed the so-called “shadow docket,” a tool for shielding Republican-appointed justices and their backers from scrutiny.
“Justice Barrett’s rushed confirmation didn’t just break the ‘Garland Rule’ – it supercharged The Court That Dark Money Built,” said Whitehouse. “The current 6-3 Republican majority is the culmination of a decades-old scheme by right-wing donor interests to capture the Court. The donors’ goal is to achieve through courts what they could never achieve through elected branches of government. As the dark-money donors’ wins pile up, it’s not hard to see why the American people are losing faith in the Court.”
“On issue after issue, Republicans and well-funded special interest groups are doing everything they can to use the courts to push an extreme agenda that does not match the needs or wishes of the majority of Americans,” said Senator Stabenow. “The last thing Americans need or want are more right-wing judges who are being directed to take away peoples’ freedom to vote and right to make their own health care decisions. Our report shines a bright light on what’s continuing to happen to the independence of our courts and why.”
“For years, Republicans have worked hand-in-hand with right-wing groups to pack our courts with judges who represent big special interests rather than the interests of the American people. These radical, anti-health care, anti-choice judges are rolling back decades – if not a century – of progress, all to appease big donors and selling out the American people in the process,” said Leader Schumer. “This report shines a spotlight on the influence of dark money on the Republican-stacked court and shows how unpopular the Republican agenda is with everyday Americans.
During the Court’s first year as a 6-3 Republican-appointed majority, one decision stands out for its significance to right-wing donor interests. In Americans for Prosperity Foundation v. Bonta decided this past summer, the six Republican-appointed justices struck down a California requirement that charities and nonprofits confidentially report information about their top donors to the state, information that these organizations must already report to the IRS. A dark-money not-for-profit at the center of the Koch family network, Americans for Prosperity Foundation (AFPF), challenged that requirement alongside an armada of over fifty dark-money groups that filed amicus briefs. While the case was pending, AFPF spent over $1 million on a “Full Scale Campaign to Confirm Judge Amy Coney Barrett.” Despite this obvious conflict, Justice Barrett refused to recuse herself from the case or even offer an explanation for that refusal. The Court’s decision extends constitutional protection to dark money—a win that grants corporations and big-money donors the right to rig democracy from behind a veil of secrecy.
The new report takes a hard look at the Republican-appointed justices’ reliance on the “shadow docket.” Unlike the Court’s typical “merits” docket decisions – which involve oral arguments, thorough briefing, and opinions explaining the Court’s legal reasoning – justices issue shadow docket decisions with little opportunity for interested parties to weigh in and with little or no explanation for the justices’ reasoning. Shadow docket decisions are often unsigned and just as often delivered at odd hours when the public won’t notice them.
Among other things, the Republican-appointed majority has issued shadow docket decisions overturning the Biden administration’s COVID-19 eviction moratorium, halting President Biden’s policies, and striking down COVID-19 public health measures. Most egregiously, the Court permitted Texas’ S.B. 8 to go into effect, stripping abortion rights from women in the second largest state and encouraging other Republican-controlled states to consider following suit. As Justice Elena Kagan wrote in her dissent to the Texas ruling, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”
The new report also previews the potential peril of the Court’s next term. The Republican-appointed majority has taken a religious liberty case, Carson v. Makin, which could allow state-funded school vouchers to be used for private religious education—a clear rebuke of constitutional separation of church and state. A pair of cases—Johnson v. Arteaga-Martinez and Garland v. Gonzalez—offer the Court a chance to restrict immigrants’ opportunities to request hearings and potential release on bond. And the justices are poised to hear Dobbs v. Jackson Women’s Health, a case that threatens to overturn Roe v. Wade and the constitutional right to abortion care.
Last year, Stabenow, Schumer and Whitehouse led senators in releasing a series of Captured Courts reports on the right-wing takeover of our judicial system. The reports showed how, working hand-in-hand with the Trump administration and anonymously funded outside groups, the Senate confirmed more than 200 life-tenured federal judges to aggressively remake the federal courts and rewrite the Constitution. Most Trump judges were chosen for their demonstrated allegiance to Republican Party political goals. This latest report shows how that investment is paying off for the radical donor interests calling the shots for the Republican Party.
A PDF copy of the report is available here.