James (Jim) Kohlberg isn’t a “big philanthropist.” He has been involved in the nonprofit world, mostly through joint projects with his parents’ foundation and serving for a decade on the board of ecoAmerica, an environmental organization, but he is far from a prominent name in the field.
If you’d done an online search for Kohlberg prior to July 23, the most you would have easily learned about him is that he’s the chairman of Kohlberg & Co. LLC, a private equity firm that he cofounded with his late father Jerome; that he reportedly once worked at Merrill Lynch; and that he currently serves on the boards of Halogen Media Networks and Kohlberg Ventures, LLC, both of which he also cofounded. Aside from former positions on the boards of ecoAmerica and the New York Times, his has been a very low profile in an era of wealthy donors who relish flexing their might in philanthropy and politics.
In other words, Jim Kohlberg isn’t the kind of person you might expect to announce a $30 million gift to the Brennan Center for Justice at NYU Law to support efforts to reform the U.S. Supreme Court. But that’s what happened on July 23, with the money designated to create the new Kohlberg Center on the U.S. Supreme Court at the Brennan Center. A total of $30 million will fund the new center over more than a decade.
While this particular gift may seem to have come out of nowhere, it raises some big questions: What prompted this, certainly one of the largest commitments for Supreme Court reform we’ve encountered? Who may be getting ready to join Kohlberg? And will their money have time to make a difference?
“The straw that broke the camel’s back”
In a recent conversation, Kohlberg, who is 66, told me that while he doesn’t have a law degree, he is an “amateur student of the court.” He first developed concerns about the court’s direction, he said, following the 2010 Citizens United decision enabling corporations and outside groups to spend unlimited money on elections. The Dobbs decision repealing Roe v. Wade also angered him, particularly coming so quickly after the court’s two newest appointees, Justices Brett Kavanaugh and Amy Coney Barrett, had testified that they were going to respect stare decisis, the principle that mandates deference to previous court decisions, during their nomination hearings. “It’s almost close to perjury that they disallowed Roe so quickly after their testimony,” Kohlberg said.
The court’s recent ruling granting presidents immunity for official acts, though, was the “straw that broke the camel’s back,” and inspired Kohlberg to get out his checkbook. He stressed that the decision wasn’t a partisan one, that he has voted for both Democrats and Republicans for president, and that the Kohlberg Center will recruit an advisory board from both parties. However, he also had strong words for “a movement of a far right wing of the Republican Party to change the country through the court system and what’s effectively becoming minority rule.” His criticism also extends to the Federalist Society, “which has raised basically a billion dollars to change the nature of the judicial system. [They have] basically become a gatekeeper for the Supreme Court, and by design or accident, have begun to corrupt the process of how judges are chosen as they move forward in the judicial system.”
The immunity decision in particular, Kohlberg said, “is incredibly dangerous,” particularly Justice Clarence Thomas’ concurring opinion claiming that special prosecutors are themselves unconstitutional — an opinion used by the Trump-appointed Florida judge, Aileen Cannon, in her decision to throw out the classified documents case against former president and convicted felon Donald Trump. These developments, he said, make the judicial system look “like a cabal, even if it isn’t. It’s very dangerous. People have to step up and put their money where their mouth is.”
Kohlberg said he chose the Brennan Center because his family has had a long association with the nonprofit. A sampling of Brennan’s existing SCOTUS-related efforts suggest that the organization is both well in line with Kohlberg’s goals and ready to build on those efforts thanks to his support.
Plans for the Kohlberg Center are heavy with think-tank activities such as conducting research and public education, publishing policy reports and advancing reform proposals. While exact details of the proposed reforms have yet to be announced, the new effort’s webpage lists three preliminary proposals: term limits for Supreme Court justices, “an enforceable code of ethics,” and “innovative new ideas including a streamlined mechanism for Congress to respond to misguided rulings and shadow docket reform.”
Shortly after our interview, the Biden administration weighed in with its own plan to impose 18-year term limits on Supreme Court justices, as well as a “binding code of conduct” requiring justices to “disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.” The administration is also calling for a constitutional amendment that would overturn the court’s presidential immunity decision. Given these developments, Kohlberg’s announced gift could be seen as part of a first wave of efforts seeking to reform the court.
The $30 million (and counting) question
Kohlberg said that he plans to do his best to raise additional money for the Kohlberg Center while providing his $30 million commitment over more than 10 years. That money will definitely be needed. “This gift provides us with an anchor over the next decade for this critical work — but the Kohlberg Center will require twice more funds. This gift, we hope, will encourage matching support,” said Brennan Center President and CEO Michael Waldman.
Thirty million dollars is also a metaphorical drop in the bucket compared to the money that’s been funneled into the increasingly successful and decades-long effort, backed by philanthropic donors, to reshape the Supreme Court and the federal judiciary at large into a right-wing institution.
These facts raise two important questions. The first is how many Jim Kohlbergs are out there? That is, wealthy individuals who haven’t previously been notably active but who are finally fed up enough, or frightened enough, to start writing substantive checks for the kind of cross-sector, multipronged defense of civil society that liberal philanthropy has failed to back for decades — as Inside Philanthropy founder David Callahan wrote back in 2018.
The Brennan Center is one of several progressive organizations specifically interested in promoting court reform. All of them have long faced a deficit in funding next to right-wing efforts to transform policy and shape the courts, running through c3 nonprofits like the Federalist Society, the Heritage Foundation and others.
The other question is whether or not this money, however much or little may be invested, will arrive in time to make a difference. The Biden administration’s new plans for court reform could well die in January, for one thing, making it far harder to make any progress in the near or even medium term.
Additionally, the right won’t give up its judicial high ground easily, having won its victories through consistent, long-term thinking and action, including in the philanthropic domain. Nor will change happen quickly, given the lifetime tenure of Supreme Court justices. Conservatives have already started attacking what they consider to be “woke” philanthropy with Congressional hearings and proposed federal legislation to punish liberal donors, as well as lawsuits to limit funders’ ability to support racial equity efforts. Having won their victories through consistent, long-term thinking and action, these same forces are likely to do everything in their growing power to make it harder for mainstream and progressive organizations to adopt a similar approach.
Having stacked the Supreme Court with hard-right conservatives, even efforts to legislate an enforceable ethics standard or other court reforms, as Kohlberg aims to do, may well end up being spun as an attempt to turn the country back in a “godless” direction. As Callahan wrote in 2018, liberal legacy funders have worked hard to maintain their reputation as being above the political fray even in the face of evidence that their approach wasn’t working. Now, the fray itself may well be coming for them; particularly if Republicans gain even more control over the government this election.
In other words, left-leaning funders’ reluctance to respond to the right on its own terms may soon lead to a situation where those same donors have to work within a much more charged and restrictive environment. Those of us who value everything from abortion and union rights to the environment and the concept of an ethical, objective judicial system can only hope that there are a lot more Jim Kohlbergs, that all of them will start writing those checks, and that the mainstream and progressive institutions that have sat on the sidelines so far will join them.
Dawn Wolfe’s work for Inside Philanthropy includes covering abortion/women’s & girls’ issues, the struggle for recognition of LGBTQ people’s rights, racial justice and philanthropic reform. She can be reached at dawnw@insidephilanthropy.com.
