[A POLITICO review indicates most conservative briefs in
high-profile cases have links to a small cadre of activists aligned
with Leonard Leo.]
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‘PLAIN HISTORICAL FALSEHOODS’: HOW AMICUS BRIEFS BOLSTERED
SUPREME COURT CONSERVATIVES  
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Heidi Przybyla
December 3, 2023
Politico
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_ A POLITICO review indicates most conservative briefs in
high-profile cases have links to a small cadre of activists aligned
with Leonard Leo. _

, POLITICO illustration/Photo by Getty Images

 

Princeton Professor Robert P. George, a leader of the conservative
legal movement and confidant of the judicial activist and Donald
Trump ally Leonard Leo
[[link removed]],
made the case for overturning _Roe v. Wade_ in an amicus brief
[[link removed]] a
year before the Supreme Court issued its watershed ruling.

_Roe, _George claimed, had been decided based on “plain historical
falsehoods.” For instance, for centuries dating to English common
law, he asserted, abortion has been considered a crime or “a kind of
inchoate felony for felony-murder purposes.”

The argument was echoed in dozens of amicus briefs supporting
Mississippi’s restrictive abortion law in _Dobbs v. Jackson
Women’s Health Organization, _the Supreme Court case that struck
down the constitutional right to abortion in 2022. Seven months before
the decision, the argument was featured in an article on the web page
of the conservative legal network, the Federalist Society
[[link removed]],
where Leo is co-chair.

In his majority opinion, Justice Samuel Alito used the same quote from
Henry de Bracton, the medieval English jurist, that George cited in
his amicus brief to help demonstrate that “English cases dating all
the way back to the 13th century corroborate the treatises’
statements that abortion was a crime
[[link removed]].”

George, however, is not a historian. Major organizations representing
historians strongly disagree with him.

A POLITICO review of tax filings, financial statements and other
public documents found that Leo and his network of nonprofit groups
are either directly or indirectly connected to a majority of amicus
briefs filed on behalf of conservative parties in seven of the
highest-profile rulings the court has issued over the past two years.

It is the first comprehensive review of amicus briefs that have
streamed into the court since Trump nominated Justice Amy Coney
Barrett in 2020, solidifying the court’s conservative majority.
POLITICO’s review found multiple instances of language used in the
amicus briefs appearing in the court’s opinions.

The Federalist Society, the 70,000-member organization that Leo
co-chairs, does not take political positions. But the movement
centered around the society often weighs in through many like-minded
groups. In 15 percent of the 259 amicus briefs for the conservative
side in the seven cases, Leo was either a board member, official or
financial backer through his network of the group that filed the
brief. Another 55 percent were from groups run by individuals who
share board memberships with Leo, worked for entities funded by his
network or were among a close-knit circle of legal experts that
includes chapter heads who serve under Leo at the Federalist Society.

The picture that emerges is of an exceedingly small universe of mostly
Christian conservative activists developing and disseminating theories
to change the nation’s legal and cultural landscape. It also casts
new light on Leo’s outsized role in the conservative legal movement
[[link removed]],
where he simultaneously advised Trump on Supreme Court nominations,
paid for media campaigns promoting the nominees and sought to
influence court decision-making on a range of cases.

Adam Kennedy, Leo’s spokesperson, said Leo has “no comment at this
time.”

The picture that emerges is of an exceedingly small universe of mostly
Christian conservative activists developing and disseminating theories
to change the nation’s legal and cultural landscape. It also casts
new light on Leo’s outsized role in the conservative legal movement
[[link removed]],
where he simultaneously advised Trump on Supreme Court nominations,
paid for media campaigns promoting the nominees and sought to
influence court decision-making on a range of cases.

Adam Kennedy, Leo’s spokesperson, said Leo has “no comment at this
time.”

Leonard Leo (top left, bottom right), seen with Supreme Court Justices
Neil Gorsuch (top right) in 2017 and Brett Kavanaugh (bottom left) in
2019. With Leo’s network having attained power on the right, its
many amicus briefs appear to be gaining attention. | Sait Serkan
Gurbuz/AP; T.J. Kirkpatrick/The New York Times via Redux Pictures

George, in an emailed response, defended his claim that abortion was a
crime, saying the historians have been “comprehensively refuted,”
including by John Keown, a leading English scholar of Christian
ethics
[[link removed]] at
Georgetown University and Joseph Dellapenna, a now-retired law
professor who also submitted a brief
[[link removed]].

Like George’s view of abortion as a crime throughout history,
arguments in amicus briefs often find their way into the justices’
opinions. In major cases involving cultural flashpoints of abortion,
affirmative action and LGBTQ+ rights POLITICO found information cited
in amicus briefs connected to Leo’s network in the court’s
opinions.

Dating from Rome

Amicus briefs date to the Roman empire as vehicles for neutral parties
to make suggestions based on law or fact. In pre-18th Century England,
the amicus was a neutral lawyer in the courtroom. Around the turn of
the 20th century in America, there was a shift to amicus briefs
becoming vehicles for parties who felt a stake in the case but
weren’t among the official litigants. Still, in the century that
followed, amicus briefs only rarely influenced cases.

But now, with Leo’s network having attained power on the right, some
legal experts bemoan them as ways for activists to push for more
ideologically pure or sweeping judicial decisions.

Justices appointed by both Democrats and Republicans over the past
decade have come to rely
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amicus briefs, including those funded by advocacy groups, for
“fact-finding,” says Allison Orr Larsen, a constitutional law
expert at William and Mary Law School who’s been tracking the trend
for nearly a decade
[[link removed]].

“There’s no real vetting process for who can file these amicus
briefs,” said Larsen, and the justices often “accept these
historical narratives at face value.” While it’s impossible to
gauge the precise impact, “what I can prove is they’re being used
by the court,” she says.

The Supreme Court building is seen in 1942. In the 20th century,
amicus briefs only rarely influenced cases; justices weren’t even
obliged to read them. | Max Desfor/AP

A former Supreme Court clerk, Larsen has called for reforms including
disclosure of special interests behind “neutral-sounding
organizations” which, in reality, are representing a broader
political movement.

For instance, Leo and George are board directors at the Ethics and
Public Policy Center [[link removed]],
which filed amicus briefs in support of the restrictive Mississippi
abortion law in the _Dobbs_ decision and in the case in which the
court found a Colorado website designer could refuse to create wedding
websites for same-sex couples. They are also both on the board of the
Becket Fund for Religious Liberty, which also filed briefs in those
cases.

Combined, the entities have taken in millions of dollars from Leo’s
primary aligned dark money group, the 85 Fund, including $1.4 million
to the Ethics and Public Policy Center in 2021. Leo himself received
the Canterbury Medal, Becket’s highest honor, in 2017.

In the _Dobbs_ case, Becket’s brief posited
[[link removed]] that
“religious liberty conflicts would likely decrease post-_Roe_.”

Abortion as a Crime

In July of 2022, a few weeks after the _Dobbs _decision was
announced, historical organizations issued a statement
[[link removed]] saying
that abortion was not considered a crime according to the modern
definition of the word and citing a “long legal tradition”
— from the common law to the mid-1800s 
[[link removed]]–
of tolerating termination of pregnancy before a woman could feel fetal
movement.

“The court adopted a flawed interpretation of abortion
criminalization that has been pressed by anti-abortion advocates for
more than thirty years,” they wrote.

A trio of scholars of medieval history
[[link removed]] also
denounced Alito’s argument as misrepresenting the penalties involved
related to abortion. The Latin word “crimen” was more akin to a
sin that would be “absolved through penance” before the Church —
and not a felony, said Sara McDougall, a scholar of medieval law,
gender and justice at City University of New York Graduate Center.
Further, the meaning of “abortion” often involved “beating a
pregnant woman” and was so broad it covered infanticide, she said.

“There’s not one felony prosecution for abortion in 13th century
England. The church sometimes (but not always) imposed penance — but
usually when the intent was to conceal sexual infidelity,” said
McDougall, who was one of the three medieval scholars. Indeed, this
medieval doctrine persisted for hundreds of years until Pope Pius IX
proclaimed in 1869 that life began at conception, they wrote.

In his response, George said the three medievalists “lamentably
conceal what is in the public record,” by ignoring what the
definition was at the time of a “formed” fetus. They “fail to
engage at all with the compelling evidence that abortion was
unlawful” and “subject to criminal sanction after quickening,”
which was after 42 days from conception, he said.

This artist sketch depicts Center for Reproductive Rights Litigation
Director Julie Rikelman speaking to the Supreme Court during oral
arguments in Dobbs v. Jackson, on Dec. 1, 2021, in Washington. | Dana
Verkouteren via AP

While debates over when life begins date to ancient Greece, the
definition George uses in an expanded version of his brief that he
provided to POLITICO — that a child is an “immortal soul” after
42 days — came from the author of an early forerunner to the
encyclopedia (c. 1240) who was a member of the Franciscan order and
frequent lecturer on the Bible. It is not clear how, without modern
ultrasound technology, a fetus’ gestational stage could have been
determined in the 1300s.

The case that abortion was a historical crime wasn’t part of the
anti-abortion push until it was introduced by Dellapenna
[[link removed]] during
an anti-abortion conference in the early 1980s, says Mary Ruth
Ziegler, a legal historian who authored a book on the history
of _Roe_. Dellapenna was a law professor at Villanova University and
not a historian. Moreover, she said: “This was not a disinterested
historian doing the research. This is someone at an anti-abortion
event.”

Over time, many others in the anti-abortion community seized on
Dellapenna’s work, including George, who “repurposed it” to
argue that abortion itself is unconstitutional, said Ziegler.

In response, George called it “amusing” that his critics among
historians “try to immunize themselves from critique by claiming
guild authority” while noting that his sources are themselves
historians.

“The trouble for them,” he said of the historical associations, is
“the sources are available to us, just as they are to them. So we
can see what the sources say, and compare it with what they claim the
sources say.”

George’s friendship with Leo dates to the 1990s
[[link removed]].
The two share similar beliefs on religion, politics and even personal
hobbies. Both are avid wine collectors. Each is also among a handful
of recent recipients
[[link removed]] of the
John Paul II New Evangelization Award, given by the Catholic
Information Center in Washington to those who “demonstrate an
exemplary commitment to proclaiming Christ to the world.”

When it comes to abortion, George’s scholarship appears throughout
the federal court system, particularly among judges with deep ties
[[link removed]] to
the Federalist Society.

Princeton professor Robert P. George sits in his office in 2015.
George, a close friend and collaborator of Leo, made the case for
overturning Roe v. Wade in an amicus brief a year before the Supreme
Court issued its watershed ruling. | Chris Goodney/Bloomberg via Getty
Images

In April, Judge Matthew J. Kacsmaryk in Texas cited George’s 2008
book, “Embryo: A Defense of Human Life,” in the first footnote
of his preliminary ruling invalidating
[[link removed]] the
Food and Drug Administration’s approval of the abortion pill,
mifepristone. Kacsmaryk used George’s work to defend his use of the
terms “unborn human” and “unborn child” — most often used by
anti-abortion activists — instead of “fetus,” which is
the standard term used by jurists
[[link removed]].

“Jurists often use the word ‘fetus’ to inaccurately identify
unborn humans in unscientific ways. The word ‘fetus’ refers to a
specific gestational stage of development, as opposed to the zygote,
blastocyst or embryo stages,” reads the first footnote of the
decision, citing George.

Affirmative Action

The longest-standing agenda item of the conservative legal movement
aside from abortion was affirmative action.

In June, when the court rejected
[[link removed]] affirmative
action at colleges and universities across the nation, there were at
least three instances in which Justice Clarence Thomas used the same
language or citations from amicus briefs of filers connected to Leo,
whose friendship and past business relationship with Thomas’s wife,
Virginia Thomas, who is known as Ginni, have been reported
[[link removed]].

Thomas read from the bench his concurring opinion barring such
race-conscious laws, including quoting from the Virginia Bill of
Rights of 1776. It asserts that “all men are (already) by nature
equally free and independent and have certain inherent rights,” he
said.

The quote and reference to Virginia’s Bill of Rights also appeared
in an amicus brief filed by John Eastman
[[link removed]],
a former Thomas law clerk who has a long history of support from Leo.
Indeed, roughly eight in ten of all briefs filed in the
case, _Students for Fair Admissions v. Harvard_, are connected to
Leo’s network.

Eastman is best known as the accused mastermind of the legal strategy
Trump used to try and overthrow the 2020 election, and is now
co-defendant with Trump in the election-interference case in Georgia.
Both Leo and Ginni Thomas donated to Eastman’s unsuccessful 2010
campaign for state attorney general of California. Eastman, in
February of 2012, co-authored the first-ever brief
[[link removed]] that
Leo’s primary activist group, the Judicial Education Project, filed
before the Supreme Court.

Affirmative action advocates rally outside the Supreme Court on Oct.
31, 2022, as justices heard oral arguments on two cases on whether
colleges and universities can continue to consider race as a factor in
admissions decisions. | Francis Chung/POLITICO

John Eastman speaks to media outside the Fulton County Jail in
Atlanta, on Aug. 22, 2023. Eastman, a former law clerk for Justice
Clarence Thomas, has a long history of support from Leo. | Arvin
Temkar/Atlanta Journal-Constitution via AP

Thomas also cites the work of some of the same scholars mentioned in
briefs by former attorney general Edwin Meese III, who served with Leo
on the Federalist Society board and worked with him on judicial
nominations during the George W. Bush administration.

Same-sex weddings and free speech

Just weeks before the affirmative action decision was announced, the
court delivered a blow to LGBTQ+ rights in deciding a web designer
with religious objections to same-sex marriages can’t be legally
obliged to create speech she opposes. The justices were divided 6-3
between Republican and Democratic appointees.

A Christian nonprofit aligned with Leo’s network, the Alliance
Defending Freedom, represented the Colorado-based plaintiff. One issue
before the justices was whether the case constituted an actual dispute
between the designer and the Colorado Civil Rights Commission or was
generated simply to undermine LGBTQ+ rights
[[link removed]].

ADF is funded by Leo-aligned DonorsTrust, among the biggest
beneficiaries
[[link removed]] of
Leo’s network of nonprofits.

In at least two instances in Justice Neil Gorsuch’s majority
opinion, he used the same language or citations from amicus briefs
submitted by groups in Leo’s network, all of which endorsed the view
of an appeals court judge in the case, Timothy M. Tymkovich, that
“taken to its logical end,” allowing Colorado to require that web
designers produce content related to same-sex weddings would permit
the government to “regulate the messages communicated by all
artists.” In his opinion
[[link removed]], Gorsuch
cites the same quote, arguing the result would be “unprecedented.”

Alliance Defending Freedom lawyer Kristen Waggoner speaks after the
Supreme Court heard oral arguments on 303 Creative LLC v. Elenis on
Dec. 5, 2022. ADF is funded by Leo-aligned Donors Trust, among the
biggest beneficiaries of Leo’s network of nonprofits. | Anna
Moneymaker/Getty Images

The briefs included one from a group of First Amendment scholars
including George and Helen M. Alvare, a law professor at George Mason
University’s Antonin Scalia Law School, which in 2016 received a $30
million gift brokered by Leo. Among seven briefs endorsed by people or
groups connected to Leo was Turning Point USA, which received $2.75
million from Leo’s 85 Fund in 2020.

The overall concentration of conservative amicus briefs in the LGBTQ+
rights case tied to Leo’s network is among the highest, at about 85
percent, of any of the seven cases reviewed. Many were filed by
Catholic or Christian nonprofits in support of the plaintiff, a
designer whose company is called 303 Creative.

The two pillars of Leo’s network, The 85 Fund and the Concord Fund,
gave $7.8 million between July of 2019 and 2021 to organizations
filing briefs on behalf of 303 Creative LLC.

The Concord Fund is a rebranded group, previously called the Judicial
Crisis Network, which organized tens of millions of dollars for
campaigns promoting the nominations of the conservative justices. The
85 Fund is the new name of the Judicial Education Project, a
tax-exempt charitable group that has filed numerous briefs before the
court.

A burgeoning tool

Amicus briefs are not only tools of conservatives. The numbers of
amicus briefs on both sides of major cases grew substantially
[[link removed]] after
2010, which happened to be when the court’s _Citizens
United_ ruling ushered in a new era of “dark money” groups like
the Leo-aligned JEP.

The volume of amicus briefs seeking to influence the court has only
increased since then, as both Democrat and Republican-nominated
justices have come to borrow from them in their opinions, according
to a study published in 2020
[[link removed]] in
The National Law Journal.

In her dissenting opinion in the affirmative action case, liberal
Justice Ketanji Brown Jackson drew criticism for quoting misleading
information
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in an amicus brief by the Association of American Medical Colleges
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the mortality rate
[[link removed].] for
Florida newborns.

Across the seven cases and hundreds of briefs reviewed by POLITICO —
in addition to abortion, LGBTQ+ rights and affirmative action, the
cases covered student loans, environmental protection, voting rights
and the independent state legislature theory — the conservative
parties had a slight advantage, accounting for 50 percent of the amici
curiae. That compares to 46 percent in support of the liberal parties
and about 4 percent filed in support of neither party.

While there is an amalgam of Democrat-aligned groups directing money
to influence the court, such as Protect Democracy, Demand Justice and
the National Democratic Redistricting Commission, which is focused on
voting and democracy, they are decentralized and mostly revolve around
specific issues.

“We don’t have a Federal Reserve or a Central Bank to go to. It
doesn’t exist. You’re quantifying two wildly different
ecosystems,” said Robert Raben, a former assistant attorney general
at the Department of Justice under President Bill Clinton and counsel
to the House Judiciary Committee.

Given the opaque nature of Leo’s network, it’s difficult to tally
up just how much money has been spent on conservative legal advocacy
linked to him. Yet just the two leading groups in his funding network,
The Concord Fund and The 85 Fund, spent at least $21.5 million between
2011 and 2021 on groups advocating for conservative rulings.

Tax-exempt nonprofit groups must provide the names of their officers
and board members on their annual IRS forms. In 15 percent of the
briefs reviewed, Leo is a member of leadership, for instance a board
member, trustee or executive representing the filers — or the filers
received payments from one of Leo’s groups.

Expanding the circle to include executives who’ve previously worked
for a Leo-aligned group, shared board memberships with him, led
Federalist Society chapters or have other professional ties to him,
Leo’s network is connected to 180 amicus briefs, or a majority.

Since Leo’s handpicked justices solidified the court’s
conservative supermajority in 2020, they are agreeing to hear cases
advanced by his allies and ruling in favor of many of his Christian
conservative priorities. | Mark Peterson/Redux Pictures

Many of these professional ties are through the Center for National
Policy, whose members have included Leo himself, Ginni Thomas, former
Republican Sen. Jim DeMint of South Carolina and former Vice President
Mike Pence.

A number of the groups associated with these individuals have also
received funds from DonorsTrust, which is the biggest beneficiary of
Leo’s aligned Judicial Education Project, having taken in at least
$83 million since 2010.

While POLITICO’s analysis relies heavily on annual forms filed to
the IRS, its approximations may underrepresent Leo’s influence over
opinions presented to the court. That’s because the IRS does not
require nonprofit groups to list members of advisory boards, and
groups filing as churches don’t have to disclose their leadership.
Leo’s organizations also route tens of millions of dollars through
anonymous donor-advised funds like DonorsTrust, making it unclear
where it is going.

The campaign to fund and promote amicus briefs is but one facet of
Leo’s broader advocacy architecture built around state and federal
courts.

But it’s of special relevance at this moment in the court’s
history. Since Leo’s handpicked justices solidified the court’s
conservative supermajority in 2020, they are agreeing to hear cases
advanced by his allies and ruling in favor of many of his Christian
conservative priorities.

“In law reasons are everything. Rationale is our currency. It
matters that they’re using the briefs to justify themselves,” said
Larsen, who wrote a 2014 research report titled The Trouble with
Amicus Facts
[[link removed]].

“They’re looking to amicus briefs to support their historical
narrative,” she said.

_HEIDI PRZYBYLA is POLITICO’s award-wining national investigative
correspondent and a veteran Washington journalist who regularly breaks
exclusive reporting on the White House, Congress, presidential and
congressional elections and, most recently, the Supreme Court and
state of democracy at home. Her reporting has spanned leading
newspaper, digital, radio and television outlets. She’s appeared on
CNN, PBS, NPR, CBS, ABC, FOX and across NBC News platforms._

_POLITICO is the global authority on the intersection of politics,
policy, and power. It is the most robust news operation and
information service in the world specializing in politics and policy,
which informs the most influential audience in the world with insight,
edge, and authority. Founded in 2007, POLITICO has grown to a team of
700 working across North America, more than half of whom are editorial
staff._

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