There is considerable evidence that the education judges
receive at Big Three seminars is influencing judicial opinions, breeding a new conservative
judicial activism. In lockstep with the seminars, there has emerged a strand of judicial
activism that is distinctly pro-market, clearly hostile to federal environmental regulations
and decidedly in keeping with the curriculum of FREE seminars. Federal judges are expanding
Constitutional provisions beyond their text and original meaning, ignoring or skirting Supreme
Court precedent and, in some instances, overruling laws passed by Congress.
This anti-environmental activism is new. It emerged only
around 1992, when the Foundation for Research on Economics and the Environment set up shop
and once Presidents Reagan and Bush had appointed a majority of the nation's federal judges.
It is mostly a product of lower federal court judges. These lower courts are transforming
Supreme Court half steps and non-binding suggestions from Justices Thomas and Scalia into
expansive rulings that strike down environmental statutes. This activism is a product of
Big Three judges. In case after case, the judges writing the opinions that strike down
environmental statutes have attended FREE, Liberty Fund and LEC seminars.
In Chapter 4 of Nothing for FREE, CRC tracks the emergence
of anti-environmental activism in four key areas. We outline the doctrinal shifts, highlight
the most activist opinions and then discuss the seminars attended by the judges writing these
opinions. Remarkably, in each area of environmental law, the authors of the leading activist
decisions have attended at least one Big Three seminar. In many cases, the judge attended a
seminar while the case was pending before his or her Court. In some cases, the judge ruled in
favor of a litigant that is funded by the same special interests that helped fund his or her
seminar. In one case, a judge ruled one way in a very high-profile case, attended a seminar
and, upon his return, switched his vote to agree with his newly acquired “education.”
This remarkable correlation between seminar attendance and
judicial activism suggests that these seminars are contributing to the emergence of this new,
activist jurisprudence. It also provides the strongest possible support for our conclusion that
the judiciary should ban privately funded judicial education. After all, as Representative Zoe
Lofgren put so plainly: “there is nothing more damaging to citizens' faith in the country and in
the due process of law than the belief, even if inaccurate, that those who are trusted to judge
have been influenced by financial connections.”
