Despite not having grown up in the US, for virtually all my life I’ve heard about the robustness of American democracy, including – especially – the strength of its judiciary. Given those childhood paeans, it was surprising to come across this headline a few days ago: “The Supreme Court is Smothering American Democracy”. What happened?
Although many such statements have been made in reaction to the nomination of Amy Coney Barrett (ACB) for the Supreme Court seat left vacant by Ruth Bader Ginsburg (RBG), the judicial smothering of democracy began much earlier. The most pernicious threats to the judiciary as the protector of democracy come not from a norm-flouting, cantankerous executive, but from the influence extreme wealth and power wields over its functioning.
Merely hours after RBG’s death, and even before ACB’s nomination, the spending wars began. Supreme Court nominations are expensive affairs, with several political groups outlaying millions of dollars to support or block any given nomination. Estimates claim that ACB’s nomination may elicit expenditures upwards of $40 million. Most such groups owe their operations to the beneficence of anonymous donors making one-time donations denominated in the tens of millions of dollars.
One such prominent group is the Judicial Crisis Network (JCN), a conservative organisation involved in judicial activism. JCN spent around $27 million to block the confirmation of Obama-nominee Merrick Garland, and appoint Trump-nominees Neil Gorsuch and Brett Kavanaugh. Unsurprisingly, JCN’s president admitted ACB’s nomination was bound to be a “major, major battle.”
This “battle” is primarily geared towards garnering support among the electorate by advertisements and mobilising the relevant political and lobbying groups. For example, Axios reported that the US Chamber of Commerce has begun mobilising key members to support ACB’s appointment, explaining that “her confirmation is aligned with the business community’s priorities.” Among the numerous institutional criticisms that have been made of the Supreme Court and its justices, few rise to the Chamber’s contempt.
The judicial system in the US has an especially important role to play in the country’s affairs because the American constitution is not very concrete and prescriptive, and hence always in need of interpretation. The jurisprudential philosophies of justices then are of significant consequence, because they will inevitably shape how each justice understands the concrete application of otherwise vague laws. This also means that certain interests would prefer judges with ideologies that would interpret the law in their favour, explaining the stratospheric expenditures.
These investments have borne fruit. Marco Ventoruzzo and Johannes Fedderke find that conservative justices are far more pro-business in their rulings and favour less regulated markets than liberal ones.  While this doesn’t mean that justices are explicitly sycophantic in their decisions, it certainly implies that justices are not nominated purely on jurisprudential merit, but because their interpretations coincide with certain interests. As legal scholar Ozan Varol writes, “Although occasional judicial resistance remains a real possibility, consistent counter-establishment jurisprudence is unlikely.”  More simply, the interests seeking to regulate the judiciary are willing to risk statistical error, but not much more.
Unsurprisingly, but perhaps unfortunately, constitutional scholars Tom Ginsburg and Aziz Huq write the Court’s “jurisprudence to date is inconsistent with a robust judicial defense of democracy.”  Indeed, if a constitutional democracy is to mean anything, it is a guarantee that all citizens will be treated equally before the same law, a requisite which no longer holds if the law predictably leads to certain kinds of decisions over others.
This isn’t the only way extreme wealth effectively games the operation of the judiciary. Outrageous, untraceable donations are also made for the preparation of “amicus briefs”, which are documents filed by non-litigants with interests in the case. Amicus briefs aren’t of small consequence because they signal to the courts the stakes of the case, and are often used as reference while justices write their rulings.
One such case was King v. Burwell (KvB), which contested the legality of tax credits to citizens who purchase health insurance from the federal government, a key provision of the Affordable Care Act. Leaked documents show that the Bradley Foundation, whose mission is to donate to “public charities”, funded an amicus brief in KvB arguing the illegality of federal subsidies. Although they lost, a subsequent memo celebrated that “the case succeeded in reshaping the country’s public discourse about health-care policy, the rule of law, the role of Congress, and agency accountability.”
The nature of public discourse is perhaps even more important in any democracy than the outcome any particular court case, because as Ginsburg and Huq, among many other scholars, note, an uncompromisable prerequisite for democracy is a common “epistemic foundation.”  Discourse and decisions around the constitution and laws are the pillars of any such epistemic foundation.
Targeted advertisements around judicial nominations, the appointment of justices with predictable interpretation of laws, and the sponsorship of several amicus briefs regulating discourse around key matters of public importance mean that this epistemic foundation is being determined by the interests of the extremely rich. This is doubly insidious: not only does it seek to ensure the outcome of judicial decisions, but also seeks to change the way we think about the broader issues themselves.
Many responses to criticism of the finances around such judicial issues have said that other, more liberal groups – like Demand Justice – also receive anonymous donations and spend millions of dollars. Although touted as a response, this is in fact a damning critique. Unaccountable, untraceable donors effectively lobbying the judiciary have practically limited the jurisprudential spectrum, another insidious way of distorting the possibilities of the law.
Without a relatively level playing field whereby justices of various jurisprudential dispositions may compete with each other for important posts and decisions, the sovereignty of the law is meaningless, leaving behind only veneers of a constitutional democracy. This is perhaps a key dimension of what Varol has called “stealth authoritarianism” , whereby the very rich, acting perfectly legally, are de facto limiting democratic challenges and entrenching the status quo.
Although much is uncertain during this moment, it’s clear that if we continue with such a judicial system, democracy will die not in the dark, but in bright daylight on First Street in Washington D.C.
Notes Marco Ventoruzzo and Johannes W. Fedderke, Do Conservative Justices Favor Wall Street: Ideology and the Supreme Court’s Securities Regulation Decisions, 67 Fla. L. Rev. 1211 (2015).  Varol, Ozan O., Stealth Authoritarianism, Iowa Law Review, Volume 100 Issue 4, 2015. pp. 1689  Ginsburg, Tom, and Aziz Z. Huq. How to Save a Constitutional Democracy. Chicago: The University of Chicago Press, 2018. pp. 146  ibid, p.107  See note 2 above