$30 million gift will fund center to push for Supreme Court overhaul

July 10, 2024

A business executive and philanthropist has pledged $30 million to launch a first-of-its-kind center pushing to overhaul the Supreme Court, after a series of ethics controversies and conservative rulings prompted rising scrutiny of the justices.

The major gift from Jim Kohlberg, chairman and co-founder of the private equity firm Kohlberg & Co., will fund research, public outreach and policy advocacy over a decade at the prominent Brennan Center for Justice, which is affiliated with New York University.

The announcement comes amid a flurry of Democratic activity related to reshaping the high court, which includes forthcoming proposals from President Biden to limit justices’ terms and enact a binding ethics code, legislation capping gifts to justices, and a referral of Justice Clarence Thomas to the Justice Department for possible prosecution. The initiative will be called the Kohlberg Center on the U.S. Supreme Court.

The nonpartisan, nonprofit Brennan Center has often supported liberal positions on voting, criminal justice, money in politics and other law and policy issues. It was founded in 1995 and named after Justice William J. Brennan Jr., a liberal lion, and has a staff of about 160. Brennan’s president, Michael Waldman, directed speechwriting for President Bill Clinton and served on the 2021 panel convened by Biden that examined Supreme Court reform and issued a lengthy report.

Kohlberg, 66, a California resident, said he had no legal background and has not previously given money to court-related issues. He said he grew concerned with the direction of the court after the Citizens United decision in 2010 that loosened restrictions on campaign finance and was dismayed about what he called the court’s lack of response to recent ethics controversies, including Thomas’s refusal to recuse himself from some election-related cases after his wife pushed to overturn the results of the 2020 election.

But Kohlberg, who describes himself as a moderate who has voted for Democratic and Republican presidential candidates, said a tipping point came July 1, when the justices granted former president Donald Trump — and all future presidents — broad immunity from criminal prosecution.

“The Constitution is the backbone of the country. It’s critical that we have a court that follows it,” Kohlberg said. “It’s critical that we have a court that believes and adjudicates that no man is above the law. The immunity decisions cuts into that. … The court has lost its way, and it has lost the support of the country.”

The Kohlberg Center will advocate term limits for justices and a stronger code of ethics than the one enacted last year by the Supreme Court, Kohlberg and Waldman said. The code adopted by the court was largely panned by judicial ethics experts as weak and unenforceable.

The center will also explore other changes, such as how the court handles emergency cases sometimes described as the “shadow docket”; giving Congress legislative tools to respond quickly to rulings by the justices; and constraining the court’s ability to curb regulation on the environment, public health and financial markets.

It will convene meetings of scholars, hold public symposiums, publish policy reports and advocate specific proposals before Congress.

“The goal is to build public support and public understanding and scholarly depth with the hope going forward there will be bipartisan support when possible for reforms of various kinds,” Waldman said. The initiative begins immediately, with operations in New York City and Washington.

Pamela S. Karlan, co-director of Stanford University Law School’s Supreme Court Litigation Clinic, said the center appeared to be a novel development in the academic landscape and a sign of the ferment around the high court. She said there’s already much being done in terms of scholarship on Supreme Court reform, but the center could be effective in other aspects of the push for overhaul.

“The Brennan Center is an interesting creature in and of itself,” Karlan said. “It’s much more a public interest law firm. Coming up with a strategy to mobilize the public is in their wheelhouse.”

Even though the public officials calling for accountability at the high court are overwhelmingly Democrats, public support for change at times has spanned the political spectrum.

A recent Fox News poll showed roughly 80 percent of voters supported a mandatory retirement age for justices and 18-year term limits. Those numbers rose dramatically after the Supreme Court overturned Roe v. Wade in 2022, eliminating the constitutional right to abortion after nearly 50 years. The same poll showed the public approval of the Supreme Court at a record low.

A University of Pennsylvania Annenberg School of Communications survey released Monday was less resounding, and there were sharp differences based on political party. Overall, about half of Americans supported term limits, but there was a partisan split over whether Congress should limit the power of the Supreme Court. Democrats were much more supportive of the idea than Republicans.

“Democrats and Republicans are severely polarized on sentiments surrounding the Supreme Court, with Democrats expressing far more concern about Supreme Court power and ethics,” Yphtach Lelkes, a professor at the Annenberg School, said in a statement.

Those divides have largely stymied the push for Supreme Court reform to date.

Republicans have been deeply skeptical of calls for an overhaul, saying the proposals are a political attempt to undermine a conservative Supreme Court that has delivered major victories for the right on abortion, guns and other issues.

Republican lawmakers scuttled an attempt to pass a Supreme Court ethics package by unanimous consent that was mounted in June by Senate Judiciary Committee Chairman Dick Durbin (Ill.). A move by Rep. Alexandria Ocasio-Cortez (D-N.Y.) to impeach Thomas and Justice Samuel A. Alito Jr. is likely to meet a similar fate given the composition of Congress, as is a bill she and Rep. Jamie Raskin (D-Md.) put forward to cap gifts to justices at $50, the same limit set for Congress.

Earlier this month, Sens. Sheldon Whitehouse (D-R.I.) and Ron Wyden (D-Ore.) referred Thomas to the Justice Department for potential prosecution for possible tax and false-statement violations related to lavish travel gifts and a loan for a recreational vehicle.

The November election could change the political calculus. If Democrats win the House and retain the Senate and White House, it could pave the way for a substantial package of ethics bills to pass. At the same time, a Trump victory or Republicans retaining the House or capturing the Senate would probably doom any such effort.

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