Associate U.S. Supreme Court Justice Neil Gorsuch will speak at an event in late September for the Fund for American Studies (TFAS), a conservative group funded by the Koch brothers and dark-money organization Donors Trust. The scheduled appearance raises more troubling questions about Gorsuch’s political independence just as the Supreme Court’s term—already packed with high-stakes political cases—is set to start in October. And it’s not the first time Gorsuch has displayed questionable ethical judgment since appointed to the bench.
The invite-only event will be held on September 28 at the Trump International Hotel in Washington, D.C., and “will celebrate 50 years of TFAS and the constitutional framework that has protected our free society and made America exceptional,” an invitation for the event states.
According to its website, TFAS seeks to “change the world by developing leaders for a free society,” and does so by offering programs that “teach the principles of limited government, free-market economics and honorable leadership to students and young professionals in America and around the world.” The organization, founded in 1967, has summer and semester-long programs, and it hosts various activities and conferences for course alumni.
TFAS is an associate member of the State Policy Network (SPN). According to a 2013 report from the Center for Media and Democracy, the SPN is a “a web of right-wing ‘think tanks’ in every state across the country.” The report goes on to claim that although “many of SPN’s member organizations claim to be nonpartisan and independent … SPN and its member think tanks are major drivers of the right-wing, ALEC-backed agenda in state houses nationwide, with deep ties to the Koch brothers and the national right-wing network of funders, all while reporting little or no lobbying activities.”
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While SPN refuted the Center for Media and Democracy’s report, claiming that the affiliated think tanks are “fiercely independent,” documents obtained by the Guardian later that year revealed that the network was planning a “a co-ordinated assault against public sector rights and services in the key areas of education, healthcare, income tax, workers’ compensation and the environment.” SPN’s 2017 annual meeting is sponsored by well-known conservative groups—at least several of which are explicitly anti-choice—including the Heritage Foundation, the American Legislative Exchange Council, the American Conservative Union, and the Texas Public Policy Foundation.
TFAS, meanwhile, has its own ties to the Koch brothers. A review of the organization’s entry on the Conservative Transparency tracking database shows multiple large donations from the Kochs in recent years.
When Gorsuch was initially up for a spot on the Supreme Court, Mary Elizabeth Taylor—an alumni of a TFAS program and a former intern for Koch Industries—helped shepherd him through the process. A quick search for “Koch” on TFAS’s website reveals that Taylor is far from the only TFAS program alum who has gone on to work for the Kochs, and that the Kochs have sponsored events for the organization.
Gorsuch, confirmed to the Court earlier this year, has other ties to the Kochs. The brothers helped wage a sustained campaign to ensure Gorsuch made his way to the highest court in the land.
Concerned Veterans for America (CVA), a Koch group, launched a digital campaign in February urging senators to confirm Gorsuch. Though Charles and David Koch did not activate their vast political machine in support of Trump during the presidential election, Trump nevertheless tapped CVA to work on veterans’ issues after he won. The Koch group estimated it had made more than 250,000 calls to supporters in 11 states to accomplish its goal of confirming Gorsuch to the Court, according to the conservative National Review.
It also worth noting that Donors Trust is a frequent donor to TFAS. It is a Virginia-based charity that, as the Center for Public Integrity notes in a 2013 profile of the organization, is used by conservative foundations and donors such as the Kochs “to pass money to a vast network of think tanks and media outlets that push free-market ideology in the states.” The organization does not need to reveal its donors, essentially allowing it to act as a “pass through” for mega-donors to inject large sums of dark money into causes while obscuring the true source of those funds.
Gorsuch’s ties to dark money donor groups were a concern during his confirmation hearing, but—like his ties to the Bush-era torture and detention policies—those concerns didn’t translate into votes to keep him off the bench.
Supreme Court Justices and Codes of Conduct
Federal judges are bound by professional rules of conduct. Those rules state federal judges—like Gorsuch, when he sat on the Tenth Circuit Court of Appeals—should refrain from engaging in political activities, and that they are bound to uphold the integrity and independence of the federal judiciary. Violating those rules can result in ethics charges or, rarely, impeachment.
Those rules don’t extend to Supreme Court justices, however. Gorusch is no longer tethered by the professional codes that require judges to be impartial and to refrain from political activity. And Gorsuch’s activities off the bench make it clear he’s happy to be untethered to that ethical oversight.
September’s event will mean Gorsuch is rubbing elbows with conservative think tank representatives promoting a very specific anti-worker, anti-immigrant, anti-just-about-everything civil rights agenda. This is on the heels of his role as the main event at a Fourth of July parade sponsored by the clearly partisan Boulder County Republican Party. He’ll be continuing to actively hobnob with the very folks—supported by dark money groups—who are supporting policies and cases that could land before him on the Court. For example, do Trump’s continuing business deals violate the emoluments clause, and will Gorsuch recuse himself from the case after speaking at one of the properties that could be at the center of the lawsuit? It’s not likely, given his current behavior.
So what can be done about Gorsuch and his apparent disregard for ethics and transparency? Likely not much. The Constitution states that federal judges are to serve so long as they exhibit good behavior, no matter how tacky—and, in almost any other context, unethical—Gorsuch’s appearances have and will likely continue to be.
That kind of behavior from a sitting Supreme Court justices is sadly nothing new. Remember Justice Antonin Scalia and his hunting trips with then-Vice President Dick Cheney? Or Justice Clarence Thomas attending Koch brothers’ sponsored events while his wife worked as a political operative opposing the Affordable Care Act? His wife’s work lobbying against health-care reform turned into another legal challenge that would land before the Supreme Court without Thomas’ recusal.
In other words, transparency and upholding the integrity of the Court doesn’t appear to be a high priority for the most conservative justices on the bench.
The difference here, though, is that Gorsuch has taken that disregard for transparency and ideological independence to an entirely new level. All his actions, combined, are stretching the power of federal judges to actively politick from the bench as brazenly as President Trump is attacking the impartiality and power of the federal courts. Gorsuch has been quiet about these attacks, only calling the statements “troubling” and saying he was “disappointed” in the man who put him on the Supreme Court.
He’s so disappointed in Trump he’s speaking at one of his properties on behalf of conservatives. That’s deep, deep disappointment.
Gorsuch’s behavior off the bench suggests he’s just fine with attacks on the integrity of the federal judiciary, that he doesn’t much care for judicial independence or transparency, and that he will continue to politick off his position whether it’s appropriate behavior for a sitting Supreme Court justice to do so. To that end he is the perfect judicial pick for conservatives: bought by money that can’t be traced and likely willing to shill for conservative causes in return.