An Open Letter to Donors After Regressive SCOTUS Decisions: Now is the Time to Do More

Dobbs should have been a wake-up call. Yet here we are, a year later, clenching our jaws and muffling our screams to hide our desperation. The Supreme Court has again overruled 50 years of progress, this time to find Harvard and UNC’s affirmative action programs unconstitutional, to allow discrimination against LGBTQ+ people, and to needlessly punish borrowers with crippling student loans. We are rightly indignant at this sudden turn in the law. And yet, after two cycles on this MAGA merry-go-round, we still are not making the necessary investments to protect the civil rights advances of the past century. 

As the leader of the Alliance for Justice and AFJ Action, nonprofits dedicated to fighting the conservative movement’s corruption of our courts, constitution, and culture, I bring a weary report: According to recent data, foundations donated only $11.5 million to “judicial selection and performance” in 2021— 0.002% of total giving. The data on individual donations is less reliable. But even if we were to assume individuals gave 10 times as much as foundations, contributions to courts advocacy would account for only $115M (or 0.02%) of all charitable giving. And perhaps more significantly, most of that investment goes to conservative interests. 

One case on point: Last year alone, billionaire Barre Seid donated $1.6 billion to Leonard Leo, architect of the Trump Supreme Court strategy and the broader conservative legal movement. That was more than 10 times the 2021 estimates for this space. But every cent went to conservative causes. In fact, Leo has used that money to, among other things, support efforts to restrict voting access in elections (and I assume to plan luxury travel for Justices Thomas and Alito that will be disclosed in a decade). 

Prior to that white whale, organizations like the Federalist Society and Judicial Crisis Network enjoyed a 4:1 or greater advantage in funding relative to progressive organizations. That’s right: If you combined the budgets of courts groups like Alliance for Justice, American Constitution Society, People’s Parity Project, Fix the Court, Take Back the Court, and Demand Justice, it would still be a quarter to every dollar invested in the conservative courts campaign. Less than that once you take Seid’s investment into account. 

What the right recognized years ago is that, when it comes to legal reform, personnel is policy — and they were willing to pay the staff costs. Trump’s judges did as he promised and overturned Roe v. Wade. Promises made, promises kept.  

Now we must confront the fact that all the issues we care about — climate change, gun control, reproductive health, education policy, LGBTQ+ rights, strengthening democracy, and more — are all vulnerable.  

If we’re going to resist, we simply must invest in protecting our courts, making them a top priority in activism and philanthropy.  

Making this shift will not be easy. Advocacy around the courts involves playing a long game that rarely produces exciting, short-term victories. This is not to discount the importance of the tremendous progress in the election of diverse and fair-minded judges across the country. Elections matter and we must invest there when we can (there are in fact more than 70 state supreme court elections in 2024 that need investment). But many groups are working on multiple long-fronts to defend and strengthen our courts: litigation, pipeline development and elections, court structure, ethics, and more. The coordination is painstaking, and wins are unpredictable. Yet the value of an investment compounds over time and, as we can see, can have generational effects.  

Donors of all sizes should be investing in scaling progressive courts organizations and sustaining them over the long-term. As conservative Justice Lewis Powell wrote in 1971 at the dawn of the conservative court's movement, “Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort.” For too long, our movement has been fragmented, small, and not thoroughly coordinated. We need both direct investments to build our infrastructure and resources to reinvest in the broader progressive movement to put courts permanently on the agenda.  

One of the Federalist Society’s most effective strategies has been connecting abortion and gun control to the courts by investing in those movements. We must establish similar connections. That means strategic partnerships with groups working on reproductive freedom, gun safety, the environment, worker rights, education, and LGBTQ+ liberty. United for Democracy is a good model for this kind of coordination and it’s what we’ve tried to model at AFJ. 

I know we want more to do than just give money. And there is more that can be done: push your Senators and the White House to fill every vacancy on the federal bench, ask your representatives to call on Justices Thomas and Alito to resign and DOJ to investigate, and push the Senate Judiciary Committee to consider every available legislative remedy to reigning in this Court, including term limits, jurisdiction stripping and court expansion.  

But we also must build an infrastructure to support all of these worthy campaigns and that will take money. We will not achieve a free, fair, and safe democracy if our courts remain tilted against our fundamental freedoms — or our movement limps along without the resources necessary to stay in the game. 

#courts #donors #philanthropy