Over the past eighteen months, in election after election, Americans across political parties have rebuked the Republican appointees on the U.S. Supreme Court for reversing Roe v. Wade and overturning Constitutional protections for abortion access. You might think the rightwing faction that dominates the nation’s highest court would reconsider their reckless approach to destroying legal precedents that Americans rely on to protect their freedoms and their families.
You would be wrong.
The six-member faction that dominates the court, helmed by George W. Bush appointee John Roberts, seems hell-bent on overturning long-standing legal precedents that protect public health and our planet.
What’s at stake? Many things you probably care about, or should, including rules to secure cleaner water and air, protect consumers from fraud, ensure access to more affordable health care, forgive student loan debt, and more. The court’s rightwing faction is on the verge of overturning or significantly rolling back Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the landmark 1984 case that allows federal agencies to issue reasonable regulations based on their expertise.
Chevron has provided valuable stability to the law and helped safeguard the lives of millions of Americans in innumerable ways. It also strikes the right balance by requiring federal judges, who have little expertise—if any—on the technical matters many regulations cover (like the dangers of a corporation unleashing cancer-causing chemicals, such as benzene), to defer to civil servants who have this expertise. Career public servants can develop deep knowledge about how to protect the public interest from corporations more devoted to pursuing profits and cutting costs than prioritizing the public health of neighbors, unlike judges who get indoctrinated on hostility to regulations through judicial junkets underwritten by corporate titans and the nonprofits they fund.
If the Supreme Court overturns or weakens Chevron, it will unleash a horde of lawyers to attack countless rules designed to protect the American people from corporate predators.
Roberts’s chaotic court is poised to do just that in a pair of cases called Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. On the surface, the cases are about commercial fishing boats and who pays for government inspectors whose job it is to protect marine wildlife from overfishing.
But that narrative is a red herring constructed with cold, hard Koch cash. If you look deeper, what becomes visible is the leviathan Charles Koch, the sixteenth richest person in the United States who runs the second largest private company in the country.
These consolidated cases should really be called Koch v. America, because the plaintiffs are being used as fronts for Koch’s extreme agenda. Fifty years ago, just a few years after he inherited his father’s pipeline and refinery kingdom headquartered in Kansas, Koch was railing against regulations and claiming—absurdly—that, in the United States of 1974, “free enterprise has already been crippled by government intervention.”
Showing his extremism, Koch smeared regulations as “socialistic” and asserted, “We have confiscatory taxation, wage and price controls, commodity allocation programs, trade barriers, restrictions on foreign investments, so-called equal opportunity requirements, safety and health regulations, land use controls, licensing laws, outright government ownership of businesses and industries, and many more interventions. No advocate of free enterprise should confuse all of this with a free, capitalistic economy!”
Safety and health regulations? How dare We the People regulate corporations whose products or practices are unsafe or harm our health. How dare we enforce the Fourteenth Amendment’s guarantee of “equal protection of the laws” through “equal opportunity requirements.” That’s just the beginning of the list that Koch’s for-profit and nonprofit empire would litigate to death if the Chevron precedent requiring judges to defer to reasonable agency rules were to be crushed.
As Maya Angelou famously remarked, “When someone shows you who they are, believe them the first time.”
Since 1974, as Koch forecasted, he has invested hundreds of millions of dollars in creating a “cadre” of advocates to attack government regulations, including through what he described as “strategically planned litigation and administrative procedures.” Koch, an engineer by training, has used the vast wealth he inherited and compounded to try to re-engineer the United States to suit his agenda. It’s a dystopian agenda that, after years of seeding, he is now harvesting through the court.
Let’s take a closer look at the Loper Bright flank of the attack on the Chevron precedent. That litigation, brought by a group called the Cause of Action Institute, is entirely subsidized by secret sources (in this instance, from the Koch fortune); steered by lawyers whose day jobs are working for Koch’s flagship nonprofit group; and governed by Koch’s top political and corporate lieutenants, along with the managing partner of the law firm defending Koch Industries from climate change litigation and other environmental regulations that he dislikes. The institute is a facade for Koch, deceiving the public about who is really behind this case.
As The New York Times reported, the lawyers who filed this case on behalf of the Cause of Action Institute all work for Koch’s political policy arm, Americans for Prosperity. Cause of Action and its financial books are literally housed within the headquarters of Koch’s Stand Together Chamber of Commerce, the vehicle Koch uses to gather funds from his fellow billionaires to influence U.S. elections, courts, and policy.
Between 2019 and 2020, before Cause of Action’s funding went almost totally dark as it was folded into Koch world, Stand Together gave it more than $5 million, the bulk of its budget.
The board that directs Cause of Action consists almost entirely of top-level Koch lieutenants:
- Brian Menkes, the chairman of the board, is the general counsel to the Charles Koch Foundation and the Charles Koch Institute and an officer of at least five other Koch groups as of 2022, including the Stand Together Trust and the Stand Together Foundation. (Menkes has been a director of Cause of Action since its inception as a project, along with two former Koch network interns, as they aimed to challenge Obama Administration regulations.)
- Emily Seidel is the chief executive officer of Koch’s Americans for Prosperity and, before that, the director of special projects for Koch Companies Public Sector, the lobbying arm of Koch Industries.
- Kurt Level is the deputy general counsel at Koch Companies Public Sector and is listed as the secretary of the board of Cause of Action.
- Alex Varban is the senior director of financial planning and analysis at Koch’s Stand Together group.
- James Valvo is the chief policy counsel of Koch’s Americans for Prosperity Foundation.
- William Burck’s day job is co-managing partner of the law firm Quinn Emanuel, which represents Koch Industries in litigation against environmental regulations. Burck represents Koch Industries in Minnesota’s climate change lawsuit against the company. (You may recall Burck’s name from his role in blocking thousands of documents sought by Senate Judiciary Committee Democrats regarding his friend, Brett Kavanaugh, during Kavanaugh’s nomination to the court.)
As the Times detailed, Koch’s law firm, Quinn Emanuel, recently attacked regulation of its handling of a massive amount of petroleum coke—a toxic waste product of oil refining—and coal on Chicago’s South Side.
Koch’s law firm has extolled a recent ruling by the Roberts Court restricting climate mitigation efforts by federal agencies: “The decision was less important for what it did—the Clean Power Plan had never taken effect, the Trump Administration had repealed it, and the Biden [Environmental Protection Agency] is currently working on a replacement plan—than for what it portends for future regulatory efforts to solve major national problems . . . . We are entering a new phase of American law where traditional deference to regulators gives way to scrutiny and skepticism. Federal agencies should expect legal headwinds when they claim the power to enact fundamental changes to the economy or society . . . . For businesses, the ‘major questions doctrine’ will be a powerful new tool to challenge undesirable regulations.”
With this new so-called major questions doctrine—a rightwing invention Koch and fellow extremist Leonard Leo helped advance—Koch already has a potent weapon to assail federal rules he dislikes. But that is not enough for Koch.
As The Guardian reported, “Jorge Lima, an economic policy strategist at the Koch network’s central coordinating group, Stand Together, said that the new composition of the court amounted to a huge ‘landscape opportunity, particularly on the administrative state. We’re doubling down on this strategy.’ ”
Do you have any doubt that these cases ostensibly about commercial fishing are really about Koch’s agenda? Koch’s team doesn’t.
Casey Mattox, whose job title is vice president of legal and judicial strategy for Koch’s Americans for Prosperity, recently crowed, “By now you may know that the Supreme Court will hear our Cause of Action team’s case asking the court to overturn the Chevron doctrine.”
That’s not all. The other case, Relentless, is also fueled by Koch cash.
These consolidated cases should really be called Koch v. America, because the plaintiffs are being used as fronts for Charles Koch’s extreme agenda.
That case was brought by a group that calls itself the New Civil Liberties Alliance, or NCLA. It was launched by Philip Hamburger, a professor at Columbia Law School, who has made numerous extreme claims, such as asserting that federal regulatory agencies are the biggest threat to civil liberties in human history. At NCLA’s fifth anniversary celebration, Hamburger described the group’s origins as one man offering him $75,000 to start the group and then “a very nice man—this is all individuals who just happen to care about this stuff—offered to give more, much, much more—and we were up and running.” Based on a review of filings, we know that man is Charles Koch.
Koch staked NCLA with $1 million to launch attacks on long-settled administrative rules. He has given the group more than $5 million since it was created seven years ago.
Of course, that’s not the end of the story.
As ProPublica recently reported, a few years ago, Supreme Court Justice Clarence Thomas told fellow partiers at the all-men’s Bohemian Grove retreat in Northern California that he had decided he opposed Chevron. He also suggested that he had persuaded the late Justice Antonin Scalia to join him in voting to overturn that precedent before Scalia died in 2016. Thomas had attended those retreats with David Koch, Charles’s late brother, who died in 2019, and had stayed at the lodging of another now famous billionaire, Harlan Crow, who has lavished Thomas with private jet travel and yacht trips.
Thomas’s apparent change of heart about Chevron came after he attended Koch donor retreats.
Meanwhile, the Koch fortune has been deployed to invest in anti-abortion operative and Federalist Society leader Leonard Leo’s scheme to pack the Supreme Court with Justices to overturn Roe and other legal precedents that he and his billionaire benefactors dislike. As True North, the watchdog group that I am the executive director of, has documented, groups linked to Leo raised nearly $600 million from 2014 to 2020 to help install like-minded lawyers on the nation’s highest court and on the lower courts, and to change legal policy. That was before another billionaire named Barre Seid, who is opposed to abortion and government regulations, gave Leo control of a $1.6 billion trust in 2020 to advance that agenda.
Leo also secretly arranged to pay Ginni Thomas, the wife of a sitting Supreme Court Justice, for an unknown period and from a hidden source, in addition to providing other perks like fine bottles of wine. These are just part of the flow of secret gifts to keep a sure vote for the rightwing agenda on the court after Justice Clarence Thomas threatened to quit if he could not live the lifestyle he desired. An untold number of billionaires and multimillionaires have been subsidizing the Thomases’ life of luxury.
The U.S. Senate Judiciary Committee, in work spearheaded by Senator Sheldon Whitehouse, Democrat of Rhode Island, and the Finance Committee, in an investigation led by Senator Ron Wyden, Democrat of Oregon, are pursuing investigations of Thomas. The attorney general of Washington, D.C., has opened an investigation into Leo, too. But much more is needed to address the rank corruption engulfing the Supreme Court that investigative reporters have helped uncloak.
Despite his ties to Koch, Thomas has failed to recuse himself from these Koch-fueled cases challenging Chevron. Nor has he bowed out of cases involving Donald Trump—despite Ginni Thomas’s role in trying to block the 2020 presidential election results. Kavanaugh has also failed to recuse himself from these Koch cases, even though they’re driven by a group his dear friend Bill Burck helms. Honest judges actively avoid all impropriety and the appearance of bias, but not these guys and others on the high court, like Justice Samuel Alito.
If the U.S. Supreme Court were indeed a fair court and not one beholden to powerful special interests that helped its rightwing appointees get their seats of power, it would reject Koch’s effort to overturn a long-standing legal precedent that has been cited in more than 15,000 cases.
A credible court, one that is not corrupted, would also reject—and indeed condemn—the charade that Koch is perpetrating here by hiding behind fishing companies to accomplish his personal agenda to destroy regulations.
But this is not a credible court. It is full of hand-picked rightwing politicians seemingly eager to cause chaos by destroying the precedents and protections most Americans rely on.
The Roberts Court is running amok. We cannot give in to this. We must continue to demand that those who represent us curb this arrogant Supreme Court and reform it as soon as humanly possible.
True North’s Evan Vorpahl, Alyssa Bowen, Ansev Demirhan, and Caitlin Mahoney contributed to this piece.