Conservative activist Leonard Leo is remaking state high courts
For the past decade, Leonard Leo has led a multimillion-dollar effort to remake state Supreme Courts, leveraging hefty support from corporate backers like Philip Morris and Charles Koch and his late brother, David.
Leo, a longtime conservative power broker and the co-chairman of the Federalist Society, is well known for the key role he reportedly played in influencing then-President Donald Trump’s nomination of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the U.S. Supreme Court. More recently, he made news this year as the recipient of the largest single political contribution in U.S. history — a $1.6 billion windfall from reclusive billionaire Barre Seid.
Less well known, however, is Leo’s role in orchestrating a successful decadelong effort to aid at least a dozen conservative judges in winning or retaining their seats on state high courts.
A Grid investigation has found that a network of political nonprofits connected to Leo has funneled at least $31 million in campaign funds into at least 42 races for seats on state Supreme Courts or other high-level state judgeships in 15 states since 2010.
“Leonard Leo has already spent a fortune to distort state judicial elections, including for state Supreme Courts, to elect radical partisan hacks who stop at nothing to undermine voting and democracy,” Norm Ornstein, senior fellow at the American Enterprise Institute, noted at the time Seid’s donation became publicly known. “The same, of course, for the U.S. Supreme Court. Now he has $1.6 billion for it.”
Neither Leo nor Koch responded on the record to questions for this report.
The nation’s 339 justices serving on their states’ highest courts are selected through elections in all but 12 states, and play an outsized role in shaping public policy that affects the daily lives of all Americans. State Supreme Courts play essential roles in electoral issues, like resolving redistricting disputes. They’re poised to become even more powerful across a range of issues, including abortion, thanks to the federal Supreme Court, which has kicked more and more thorny legal debates back to the states to decide.
Compared with congressional elections, where hundreds of millions of dollars can be raised and spent by campaigns aiming to move the electoral dial a fraction of a percentage point, races for seats on state Supreme Courts are relatively low-profile, low-budget affairs. Even in the most competitive races, campaign spending typically totals less than $10 million — meaning smaller contributions can have an outsized impact.
While there are some public disclosure requirements for political spending in state Supreme Court races, much of the spending happens in the weeks immediately before Election Day and is not disclosed until voters have already cast their ballots. Even then, the identities of parties seeking to influence the courts can be difficult to decipher. Because the names of donors are often not disclosed, voters, parties in the lawsuits and even other judges will never know whether those conflicts exist.
“This opaque spending hides crucial information from voters,” said Douglas Keith, counsel for the Democracy Program at the Brennan Center for Justice. “These races are so under the radar and candidates are often spending very little money in these elections, which makes it so that the messages of these outside groups are often the only messages that voters hear about these races.”
In one of the most prominent instances of the influence of campaign spending influencing state Supreme Court deliberations, Massey Coal Chairman and Principal Officer Don Blankenship spent $3 million to elect Brent Benjamin over an incumbent on the West Virginia Supreme Court of Appeals in 2004, just as the court was set to hear an appeal of a $50 million jury verdict against his company. Benjamin won, refused to recuse himself from the case and served as acting chief justice due to the recusal of other judges. The court overturned the verdict.
The U.S. Supreme Court heard the case and in 2009 overturned the state court’s verdict in a 5-4 opinion written by Justice Anthony Kennedy, who called the facts of the case “extreme by any measure.”
Michael Kang, a professor at Northwestern University’s Pritzker School of Law, said while the Massey case was “egregious,” the fact that $3 million in political spending helped overturn a $50 million verdict exemplifies why special interests are motivated to spend in judicial races.
“The return on investment is really good for state Supreme Court election,” he said. “And there’s less money still spent on judicial races than legislative or executive contests. So they’re cheaper, and the money has a big impact, because there’s not that many seats at stake”
The money trail
The combination of vast power and low public profiles have made state Supreme Courts an attractive target for political donors seeking to influence the government. Spending on court races has skyrocketed alongside the increasing partisanship in American politics.
Leo’s influence has come in large part through a political spending entity called the Republican State Leadership Committee Judicial Fairness Initiative (JFI).
The JFI, which spent more than $10 million from 2014 to 2018 to influence state judicial elections, is largely funded by the Republican State Leadership Committee.
The top contributor to the RSLC in recent years has been the Judicial Crisis Network, a 501(c)(4) led by Leo. And the leading funder of the Judicial Crisis Network was the Wellspring Committee, another 501(c)(4) tied to Leo along with billionaire industrialists Charles and David Koch.
The network of dark money nonprofits has shifted forms several times in several years, creating an opaque and byzantine path for the money to flow through year after year. For instance, the Judicial Crisis Network was formerly known as the “Concord Fund,” and before that, the “Judicial Confirmation Network.”
A constant, however, has been the continually increasing funding Leo-controlled entities have received and spent in their effort to bend state courts in a more conservative direction.
Early this year, JFI said it was “committed to spending more resources on state Supreme Court races in 2022 than in any year in the committee’s history.”
Andrew Romeo, a spokesman for the RSLC, wrote in response to questions for this report that the organization “will continue to be transparent about our mission to elect conservative judges across the country in order to stop the Democrats’ sue until it’s blue gerrymandering scheme.”
Millions spent in “deep red” Arkansas
The network of dark money groups centered on Leo has worked to influence judicial races in swing states, where winning a single judgeship could alter the balance of power on the state’s highest court for years.
In Pennsylvania, Kevin Brobson received $1.6 million in RSLC-linked donations in 2021. That same year, JFI spent $380,000 to back Curtis Hudson in North Carolina.
But what is more surprising is the money spent in a handful of deep red states including Arkansas, which has not elected a Democratic statewide politician since 2010.
Despite the solid conservative hold on the state’s politics, entities tied to Leo have spent more than $7 million on judicial races in Arkansas since 2014 amid a yearslong battle over the state cap on punitive damages in civil litigation.
Koch Industries, one of the RSLC’s top donors, has an active business presence in Arkansas including a large paper mill in Crossett, Arkansas, that has faced scrutiny and agreed to pay civil penalties totaling $600,000 under an agreement in which it did not admit fault, in connection with allegations that the plant unleashed pollutants in the community.
Ads funded by the RSLC in 2014 targeted incumbent Courtney Goodson, who voted to strike down the state’s punitive damage limits in 2003. Goodson lost the race for chief justice but retained her seat on the court.
The RSLC took aim at Goodson again in a 2018 race that became the most expensive judicial election in the state’s history, with $3.4 million spent by interest groups. The Judicial Fairness Initiative spent $2.3 million in an unsuccessful effort to replace Goodson with its preferred candidate, David Sterling.
“RSLC-JFI has a long record of supporting conservative candidates in judicial elections, whether the state considers them partisan or non-partisan,” said Romeo of the RSLC. “Liberal activists who cloak themselves in ‘non-partisan’ labels when they run for election rule just like liberal activists when they are elected.”
Herbert Kritzer, a professor at the University of Minnesota School of Law who has studied state Supreme Courts, noted that the states that see some of the highest spending on state Supreme Court races are states where the elections are nonpartisan — meaning that political parties do not nominate the candidates.
“Keep in mind that it’s a deep red state,” Kritzer said. “They show up in Arkansas, Montana, Ohio, West Virginia and Wisconsin — all of which are states with nonpartisan elections.”
Kang, who has spent years studying the role of money in state courts, said his scholarship has found a clear relationship between the money that the justices receive and the decisions they ultimately make — particularly in instances where a judge who already holds a seat on a state court is up for reelection.
“That pattern is consistent, statistically significant and clear,” Kang said. “If you look at judges who cannot run for reelection, where they face a mandatory retirement, the money has a dramatically less effect on their decision-making. And so what that suggests is the need to raise money for the future has some sort of influence on judges who know that they are eligible to run for reelection.”
“Public has very little information”
When states began using elections to choose judges in the 19th century, they were seen as a reform tool to shield the judiciary from political influence.
Keith, of the Brennan Center, said today’s judicial elections are “just not serving that goal.”
“Judicial elections were supposed to bring the selection process out into the sunlight and reduce the corruption that was involved in picking judges,” he said. “Political parties are very involved. And the public has very little information about where all this money is coming from and who’s influencing judicial selection.”
But increasingly, these state Supreme Courts are more powerful than ever. A recent study by academics at George Mason University and the University of Utah analyzed whether, during eight different periods dating back to 1789, the Supreme Court generally centralized federal power or decentralized power by returning issues to state governments. The study found “the post-2006 Roberts Court era is the only period that shows up slightly more decentralizing than centralizing.” Returning issues to individual states makes these state-level high courts the point of final redress for issues from voting rights to abortion.
Scholars of state judicial systems point to states like New Mexico that have sought to avoid the problems inherent in judicial elections by instituting state judicial commissions to select judges. But even those commissions can be problematic if their members are chosen by, and beholden to, partisan officials.
State Supreme Courts — along with federal courts and lower state courts — formed a bulwark against efforts by former president Donald Trump and his allies in 2020 to subvert the results of the presidential election, delivering a series of decisions that rejected his unfounded claims of election fraud. Trump lost 61 of 62 legal challenges to the 2020 presidential election, including a number of consequential decisions from the Supreme Courts of Arizona, Nevada, Michigan, Pennsylvania and Wisconsin.
However, a far right-led movement to diminish the role of state courts in adjudicating electoral issues is taking shape. The “independent state legislature” theory — a legal theory that Article I of the Constitution gives state legislatures the ultimate authority to decide electoral issues — is being advanced by many conservative legal advocates.
This is most notably being argued in Moore v. Harper, a case currently before the U.S. Supreme Court regarding whether the North Carolina Supreme Court had the authority to reject an electoral map drawn by state lawmakers. The U.S. Supreme Court heard oral arguments Dec. 7, and its decision could have major implications for the role of state Supreme Courts in deciding electoral matters.
Yet experts say they fear the increasingly political bent of the state judicial elections — driven by increasing political spending — places the democratic safeguard provided by the judiciary at risk.
“Especially in this perilous moment for our democracy, the public really needs to be confident that courts can be a check on the political branches,” Keith said. “But these ads and their substance, really make it hard for the public to view judges as anything other than just another politician.”
Thanks to Brett Zach for copy editing this article.
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