Recapturing the Supreme Court for the people

The first cases testing Trump’s overreach are lapping at the steps of the Supreme Court.

By Sheldon Whitehouse

The Supreme Court has been captured by powerful, secretive special interests who spent hundreds of millions on the project. A single Supreme Court decision can yield billions of dollars for an industry (throwing out the Clean Power Plan, for instance), so this scheme was an investment that paid off handsomely. It was mostly “dark money,” but that’s a whole other story (stay tuned for more on that).

Part of the scheme was the “Billionaire Gifts Program” that gave certain favored justices lifestyles of the rich and famous. This has never been explained by the Court or properly investigated.

One of my projects has been getting a proper ethics code for justices, with neutral fact-finding and determinations. Every state Supreme Court has figured this out; it’s not hard. The justices just don’t want to do it.

A related concern about the “Billionaire Gifts Program” was justices not only failing to report the big gifts, but also likely failing to pay taxes on them too, and, similarly, donors making big gifts but failing to pay gift taxes on them. It seems false statements might have been made along the way. This is plain lawbreaking and deserves investigation. Attorney General Merrick Garland refused even to answer my letter, co-written with Sen. Ron Wyden, asking for a special counsel to investigate the evidence we’d assembled.

In addition to receiving enormous secret gifts (private jet trips, yacht excursions, private school tuition for relatives, luxury fishing trips) from interested billionaires, the amenable justices frequently violated the recusal laws of the country, deciding cases in matters in which they had an interest of their own and without proper—or any—explanation. A regular ethics code—with a place to file complaints, staff to review and do factfinding, and a body of senior judges to compare the facts against what the code allows—would also solve this continuing problem of recusal violations.

Another part of the capture scheme was funding (by billionaires like the Kochs, as well as Leonard Leo, who coordinated much of the operation) for front groups to file “amicus” briefs in coordinated flotillas, to signal what the court-capture machine wants and to provide the captured justices with radical, front-group-propagated arguments for those justices to deploy. The flotillas usually number around a dozen, but in one case it was more than 50! I have pressed for better disclosure of who’s behind these front groups and how they’re coordinating. That’s a work in progress over at the Judicial Conference of the United States, the administrative and policymaking body for the courts.

These front-group flotillas seem to have an unrivaled track record of wins in the cases their donors care about the most. Though they might not get every part of what they want from the justices all at once, they always move them in the desired direction. To get to the facts, I am working to organize a proper statistical study of the correlation between flotilla asks and court deliverables.

These flotilla decisions are riddled with flaws, particularly in the area of fact-finding, where the Court is entitled to no institutional deference and where it has developed a bad habit of making up plainly false facts to help it get to desired results. Case in point: in Citizens United, the Court struck down part of the bipartisan McCain-Feingold campaign finance law on the grounds that outside spending would be transparent. Billions in dark money prove that assertion laughably untrue. We need to develop an appropriate judicial doctrine for cases that stand on patently false facts.

Last, I believe term limits are in order (I propose 18 years), and I would make the term limits retroactive, so the public does not have to wait 18 years to see any effect of a law that enjoys overwhelming public support.

Why does this matter now? President Donald Trump is putting a huge amount of stress on the Constitution—he is using tools of the executive branch hard and fast to consolidate his power. The legislative branch, with both chambers controlled by Republicans petrified of MAGA wrath, has largely caved to Trump’s power play so far. But cases to stop Trump’s destructive rampage are moving through the courts, and the first ones are now lapping at the steps of the Supreme Court. Understanding the Court will be key to understanding what happens next and to getting out of this mess we’re in.

Leading characters in the court-capture scheme will continue to surround the Trump administration (see Billionaire Gifts Program defender Mark Paoletta appointed as general counsel at the Office of Management and Budget). They and their MAGA allies have already started harassing and threatening to impeach lower-court judges who don’t immediately give them what they want. Expect the court-capture operation to kick back into full gear to intimidate and replace judges who maintain honest courtrooms. It will be more important than ever to point out the difference between what I do—good-faith, evidence-based critiques in service of improving the judiciary—and the partisan bullying of MAGA, intended to bring an independent judiciary to heel.

There’s a lot left to investigate. Stick with me; it’s going to be an interesting ride. A Supreme Court that is a proper court again is a goal worth fighting for, and I’m in that fight all the way.

Sheldon Whitehouse, a Democrat, represents Rhode Island in the U.S. Senate.

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