Justice Anthony Kennedy caused quite a stir in a Supreme Court death penalty decision in 2005, when he observed that in deciding such cases it might be appropriate to consider the laws of other nations or Article 37 of the United Nations Convention on the Rights of the Child -- an international agreement that was never ratified by the U.S. Senate. For all the attention Kennedy's observation received at the time, there was another aspect of the story that got no coverage but which legal scholar Walter Olson recently brought to light. Writing in the Capital Research Center's Foundation Watch, Olson pointed out that the decision, including the suggestion regarding the role of international law in determining U.S. domestic statutes, "resulted from a campaign of legal and public advocacy built up over years, in which foundation grant-making was a driving force."
Specifically, Olson was referring to a juvenile justice program at the Northwestern University School of Law in Chicago, which was directed by former Weather Underground terrorist Bernardine Dohrn and heavily supported by funds from the Ford Foundation and other liberal philanthropies. Olson's point was not to criticize such funding decisions or to take a position one way or the other on the propriety of subverting U.S. law to foreign or international pronouncements. Rather, it was to highlight the degree to which philanthropies such as the Ford Foundation can have a decisive influence on the direction of American jurisprudence.
"Dohrn's notoriety aside, it's actually not unusual for the funding of a law school project to serve as a key strategic step in the campaign for a real-world courtroom breakthrough," Olson said. "Thus generous foundation support enabled the founding of something called the Harvard Civil Rights Project in 1996, with the aim of laying the groundwork for the defense of racial preferences in university admissions. In 2003, an ambivalent Supreme Court mostly upheld such preferences. (The Court is revisiting the issue in this year's Fisher v. University of Texas.)"
The Ford Foundation has been using its billions derived from the profits of the automotive icon since the 1950s to push the liberal agenda forward on a variety of fronts. But liberal judicial activism exploded in the 1960s when philanthropies led by Ford sparked legislation creating the Legal Services Corp. in the federal government and public interest law groups such as the Lawyers' Committee for Civil Rights Under Law, Mexican American Legal Defense and Education Fund, the ACLU Women's Rights Project and National Women's Law Center, the Environmental Defense Fund, Earthjustice (formerly known as the Sierra Club Legal Defense Fund) and the Natural Resources Defense Council. It's now almost impossible to find a sphere of American law and life that has not been dramatically shaped or reshaped by Ford-funded judicial activism.
Liberal philanthropic leaders now are subsidizing efforts to repeal the Supreme Court's Citizens United decision, which allegedly freed corporate interests to spend billions seeking to influence public policy, including judicial decision-making. Do as we say, not as we do, appears to be their rule.