Editor’s Note: This article was published in June 2018, before the confirmation of Brett Kavanaugh to the Court.
Can wealthy individuals and private foundations tell U.S. Supreme Court justices how to rule? No, of course not.
But what philanthropy can do is help determine which cases reach the Supreme Court and how well they’re argued.
A case in point is today’s ruling that public sector unions can’t compel non-member workers to pay dues. The decision, which deals a major blow to organized labor, came after years of investments by conservative funders in legal efforts to weaken public sector unions. In effect, business leaders and foundations created with corporate wealth have, through tax-deductible charitable giving, pursued the age-old battle against workers organizing—in yet another stark example of the increasing weaponization of philanthropy for policy combat. (Donors on the left have heavily bankrolled litigation, too, which I'll get to in a moment.)
Support for anti-labor litigation has been part of broader philanthropic investments over recent decades not only to shape judicial rulings, but also to determine who sits on federal and state courts. Groups like the Federalist Society, the Pacific Legal Foundation, and the National Right to Work Legal Foundation have received tens of millions of dollars in contributions. In the past two years alone, the Federalist Society—the flagship of the conservative jurisprudence movement for over 30 years—received $45 million in contributions. Nearly every top donor on the right—like the Kochs, Robert Mercer and and Richard Uihlein—give to the Federalist Society, as do most of the leading conservative foundations, such as the Bradley and Sarah Scaife foundations. Many donors also bankroll legal groups at the state level, like Art Pope, who’s long backed conservative litigation work in North Carolina, and Bruce Rauner and Richard Uihlein, who’ve been benefactors of such efforts in Illinois.
Perhaps no conservative funder has spent more to weaken public sector unions than Bradley, which is based in Milwaukee. Its former president, Michael Grebe, is close to Scott Walker, Wisconsin’s Republican governor, who’s led efforts to curtail the collective bargaining rights of public sector unions in that state.
In 2016, conservative litigation groups, financed by Bradley and other funders, succeeded in getting the U.S. Supreme Court to hear a case—Friedrichs v. California Teachers Association—challenging the right of public-sector unions to collect "fair-share" fees from non-members. In many states, workers who opt out of public sector unions still have to pay dues. The strategic benefits of barring that practice are clear enough: Since public sector unions provide major firepower for progressive causes and Democratic candidates, reducing their financial resources will weaken the left across a range of issue areas.
Bradley was one of the top funders of the Center for Individual Rights, which brought the suit challenging “fair share” fees. Bradley also supported at least 11 organizations that submitted amicus briefs for the plaintiffs in Friedrichs, which were nine California public school teachers who’d declined to join the California Teachers Association.
When the case reached the U.S. Supreme Court, the court had a vacancy due to the death of Justice Scalia, resulting in a tie vote that let union dues stand. This year, Justice Neil Gorsuch—a longtime member of the Federalist Society—provided the deciding vote against public sector unions in a similar case.
This decision will go down as one of the great victories of conservative legal philanthropy. But donors on the left have also scored some victories over the years. Most famously, in the middle decades of the 20th century, foundations and private donors supported the NAACP Legal Defense and Educational Fund through years of grinding litigation challenging segregation and other civil rights abuses, including work on the historic Brown v. Board of Education case in 1954, which called for desegregating schools. In turn, the arguments made in that case were strongly bolstered by research funded by the Carnegie Corporation documenting the negative effects of school segregation.
More recently, in 2015, a legal push to secure marriage equality that was heavily financed by LGBTQ rights funders triumphed in the Supreme Court.
That legal breakthrough, which set off celebrations in gay neighborhoods across the U.S., was years in the making. Part of the backstory here involves a wealthy donor named Chuck Williams, who, in 2001, made a $2.5 million gift to establish a center for LGBTQ scholarship at UCLA Law School. It was the biggest donation ever for legal academic work of this kind, and Williams went on to give the institute at least another $10 million. A half-dozen other individual donors have also made gifts of between $1 million and $5 million to the Williams Institute, which has also pulled in a steady stream of grants from foundations.
This money allowed the institute to do groundbreaking legal work arguing for advances in LGBTQ rights. Over time, Williams emerged as the legal nerve center for the push for marriage equality. It built up a staff of scholars who pumped out law review articles and policy studies and filed amicus briefs in crucial cases as marriage equality issues wound their way through the nation’s courts. Its scholars were also expert witnesses in multiple cases relating to marriage rights for same-sex couples, including every case heard before the Supreme Court. Numerous high federal courts cited the institute’s research in striking down bans on marriage for same-sex couples.
I could continue with more examples of philanthropic funding influencing judicial outcomes over many years. Because this has been going on for decades, it may seem like an old story. In fact, though, funding for legal work has dramatically expanded in the past 10 or 15 years. And nonprofit litigation groups have gotten more sophisticated about using the law to shape outcomes across both the policy and electoral spheres. For example, conservative legal organizations have waged a major battle for years to strike down the Affordable Care Act after its passage by Congress. That effort fell short, but it did result in the Supreme Court's repeal of the mandate that states must expand Medicaid—leaving millions without the health insurance promised by the law, a lack of coverage that’s led to thousands of deaths, according to research.
All of this is yet more evidence of the increasing political weaponization of philanthropy. Sometimes, such wealth is wielded on behalf of litigation to benefit marginalized groups or to protect the environment or consumers. More often, at least lately, it’s being deployed in ways that hurt the less powerful.