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Can philanthropy save the courts?

By Bradford K. Smith
September 22, 2020

Close-up of EQUAL JUSTICE UNDER LAW carved into the portico of the U.S. Supreme Court building

Just when I thought I’d figured out a survival strategy for this pandemic-slammed, economically bleak, racially charged, wildfire-ravaged, election-crazed year, an acrimonious firefight has begun over the Supreme Court vacancy left by the death of Ruth Bader Ginsburg. With Senate Majority Leader Mitch McConnell (R) poised to use the so-called “nuclear option” introduced by his predecessor, Harry Reid (D), a bruising confirmation process awaits. In the end, a lifetime appointment to the highest court in the land is likely to be approved by a simple majority along party lines.

Overcoming my initial despair at how Congress seems hopelessly divided and the courts have become an ideological battleground, I wanted to see if philanthropy had any answers. To find out I turned to “Foundation Funding for U.S. Democracy,” Candid’s free public web platform that tracks how foundations are working to improve democratic practice, the money involved in doing so, and relevant research.

Foundation funding is widespread

If you spend too much time on Breitbart or the American Independent, you would get the impression that George Soros and the Koch Brothers are locked in an epic struggle to determine the country’s future. A look at the data tells a different story. Apart from whatever personal funding they may provide, when it comes to institutional philanthropy, Soros and the Kochs are joined by more than 12,800 funders, who have invested some $9 billion since 2011 in support of American democracy. This may not seem like much given the more than $167 billion that funders have poured into improving American education over the same period, but when you think of the flexibility that grant funding provides, it is hugely important. Ideally, philanthropic resources are free from pressures of getting votes, selling products, or fundraising that drive governments, businesses, and sometimes nonprofit organizations to think and act in the short term. As long as foundations do not run afoul of IRS restrictions on political activity, they have the potential to take a long view of the systemic challenges facing government and democratic practice.

Some funding focuses on the judiciary

Of the $9 billion that funders have invested in American democracy, some $69 million has focused on what is categorized as “judicial selection and performance.” Although more grant dollars have gone into, for example, “civil liberties” ($1.4 billion) or “voter education, registration, and turnout” ($324 million), this $69 million is still noteworthy, given how complex and increasingly significant the judicial system has become. And that funding is spread out among 617 funders making grants as small as $10 and as large as $2.6 million.

Grant funding is also polarized

Though funding for judicial selection and performance goes to 209 different grantee organizations, there are a handful that get the lion’s share. A closer look at four of them and their positions on the Supreme Court nomination reveals their polarization.

Brennan Center—“The Senate should approach Justice Ginsburg’s vacancy the same way it handled the last Supreme Court vacancy in an election year—wait until after the election. ‘To do otherwise, would be a power grab, plain and simple.’”

Judicial Watch—“President Trump now has a historic opportunity to nominate yet another constitutional conservative who will honor the Constitution and the rule of law across the full spectrum of constitutional issues.”

Alliance for Justice—“If 269 days was too close to an election to fill Justice Scalia’s seat, then 46 days is too close to an election to fill Justice Ginsburg’s seat.”

Federalist Society—The Federalist Society has closely advised the White House on judicial appointments, and the two leading female nominees, Barbara Lagoa and Amy Coney Barrett, are or have been its members.

In the graphic below, generated from Candid’s Foundation Funding for U.S. Democracy site, these four organizations are represented by purple circles and their leading funders by orange. They constitute two separate universes in which, when it comes to grants that we could reliably consider as being for the purpose of “judicial selection and performance,” the Brennan Center shares funders with Alliance for Justice, just as Judicial Watch shares funders with the Federalist Society. These organizations receive grants for other programs or general purposes as well, but the pattern remains the same. Looking at all grants for democracy to these four organizations, it appears that only one private foundation, the Hewlett Foundation, bridges these two universes. Over the years, it has made five grants totaling $2.1 million to the Brennan Center and one $1.5 million grant to the Federalist Society.

Chart showing funding sources for Alliance for Justice, the Brennan Center, the Federalist Society, and Judicial Watch

The other interesting thing to note is the importance of grants made to Judicial Watch from donor-advised funds. This explains the role of Fidelity and Vanguard, which administer large numbers of funds set up by individual donors to direct their philanthropy to groups and causes that motivate them. Judicial Watch has more than 570 donors whose average grant is $3,500. Its largest overall institutional funder is the Sarah Scaife Foundation, followed immediately by Fidelity, whose individual donor-advised fund holders have made nearly 800 gifts to Judicial Watch, some as small as $50.

A deeper look is in order

This is only a cursory view of data Candid has collected on how philanthropy approaches the functioning of the judiciary. But the foundation and grants data captured on Foundation Funding for U.S. Democracy is much richer. It focuses on four broad subject areas: Campaigns, Elections, and Voting; Civic Participation; Government (that is where “Judicial Selection and Performance” come in); and Media. In the weeks and months ahead, Candid will delve deeper into our democracy data to understand to what extent foundations are using their unique freedom and flexibility to tackle long-term challenges that markets and partisan politics seem ill equipped to address.

The value of Ruth Bader Ginsburg

Justice Ginsburg’s life reminds us of ideals related to the public good that America seems to have lost. As a litigator she brilliantly fought and won cases before an all-male Supreme Court by demonstrating how the failure to afford women equal protection under the 14th amendment was hurting men as well. As a Supreme Court justice, she perfected the art of writing dissenting opinions that have and will continue to be used as the basis for future Congressional legislation and jurisprudence. And, in something that seems unimaginable today, she was confirmed to her Supreme Court position in 1993 by 96 votes to 3.

But among her most remarkable achievements was a life-long friendship with Justice Antonin Scalia, who was as conservative as she was progressive. Beyond being personal friends and opera lovers, as professionals they so deeply respected each other’s competency that they would informally share their written opinions before they were presented to the rest of the Court.

At Candid we incorporate equity, inclusion, and respect for diverse perspectives in all our work. No one lived that more than RBG, who once remarked of her friendship with Justice Scalia: “You can disagree without being disagreeable.”

Tags: U.S. democracy; U.S. Supreme Court; U.S. judiciary