Conservative Courts, Progressive Donors: A Few Thoughts

Dec 20

Conservatives hijacked the federal courts in part by bankrolling the Federalist Society and other groups looking to remake the judiciary. This giving unfolded over a generation and, if you add it all up, likely totals in the billions since the early 1980s.

In 2022, Blue Tent looked at the budgets of top conservative judicial groups and found that, collectively, these organizations raised around $230 million in 2019. This cash flow is surely higher now, especially in the wake of Barre Seid’s $1.6 billion donation to a funding group controlled by Leonard Leo, a key architect of the right’s court strategy.

The ROI from these investments is shaping up to be stunning. The right’s judicial giving could ultimately influence budgetary and regulatory policies worth trillions of dollars.

Money Well Spent

The Supreme Court’s student debt ruling alone will snatch away as much as $500 billion in loan relief from struggling young people. Likewise, when the court blocked Medicaid expansion under the ACA in 2012, it deprived low-income Americans of hundreds of billions of dollars in healthcare benefits. It’s estimated that thousands of people have died because of that ruling.

But it’s not just that courts have huge power over how government spends money and regulates businesses — or even whether people live or die. The Supreme Court’s decisions over the past few years also show that it can sweep aside key rights and social progress — rendering moot decades of gains won by liberal lawmakers, advocates, and philanthropists.

Still, in a great example of being “penny wise but pound foolish,” progressive funders have given very little money to try to shape the federal judiciary.

The American Constitution Society, which was founded in 2001 to counter the right’s judicial gains, reported revenue in 2021 of $5.6 million — compared to $22 million for the Federalist Society. Demand Justice, a newer and more aggressive group focused on the courts, had a budget a tad higher than ACS in 2021, while Take Back the Court pulled in a paltry $1.5 million.

To be sure, many liberal groups, like the ACLU and Lambda Legal, work on cases before the federal courts. But there’s simply never been enough donor interest on the left to scale anything like the right’s powerful ecosystem of judicial groups.

Ceding the High Ground of U.S. Politics

This is part of a larger pattern of liberal funders ignoring the highest ground of U.S. politics. Work to influence budgets and fiscal policy, as well as regulatory oversight of Wall Street and corporations, are two other areas that liberal funders have neglected. Instead, foundations have scrambled to cope with the devastating downstream effects of trillions of dollars in tax cuts and the massive wealth destruction in low-income communities of the 2008 financial crisis.

The good news is that many donors on the left do understand the importance of winning elections — and have gotten far more savvy about their political giving. This growing commitment points to an eventual exit strategy from conservative judicial dominance: hold the White House and Senate for years to come and slowly remake the courts, or work around them.

I know many people favor a faster exit plan — getting 51 Democratic senators to toss aside the filibuster and then expand the Supreme Court. Giving to groups like Take Back the Court is one way to push that option into the mainstream.

Shaping the Courts Through Elections

Realistically, though, winning elections is our best hope of protecting a century of social progress, not to mention making new gains. Given this reality, a lot of liberal funders need to change how they operate. While it’s true that many more donors have dialed into electoral giving, the lion’s share of liberal money still goes to issue work that’s highly vulnerable to judicial sabotage. In effect, most donors give downstream.

I get why this is the case. When many of us see attacks on the things we care about — like abortion rights or environmental protections — our reflex is to donate to groups like Planned Parenthood or the Sierra Club.

In fact, though, what all progressive funders should be doing right now is directing a much larger share of resources to electoral work. For foundations, that may mean big new investments in nonpartisan voter registration and election protection work. For individual donors, it means shifting funds away from your favorite issue groups to electoral priorities — at least for the next few years.

We’re in the fight of our lives. If we want to win, we have to do things differently.