Sheldon Whitehouse: Don't believe Justice Alito -- it's clear this Supreme Court was built by dark money

Sen. Sheldon Whitehouse, Salon
October 14, 2021

Samuel Alito (screen capture)

Justice Samuel Alito wants desperately for us to believe that everything is just fine at the Supreme Court. Indeed, in his view the court is a victim.

Before an audience at Notre Dame on Sept. 30, Alito denounced "unprecedented efforts to intimidate the court." He aimed his outrage at the media, at leading legal academics, and at people like me who are concerned about, as he put it, the Supreme Court "deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view."

The problem for Justice Alito's sense of grievance is that the evidence supports our concerns. Alito has participated in a pattern of decisions — like the court's recent "shadow docket" ruling suspending abortion rights in our second-biggest state — that deliver wins for big Republican donors. Americans' perception that the court lacks independence, and the court's related drop in approval, doesn't flow from some left-wing conspiracy. It's a recognition that the evidence shows a pattern whenever certain interests come before the court.

How strong a pattern? During Chief Justice John Roberts' tenure, the Court has issued more than 80 partisan decisions, by either a 5-4 or 6-3 vote, involving big interests important to Republican Party major donors. Republican-appointed justices have handed wins to the donor interests in every single case. The decisions greenlit rampant voter suppression and bulk gerrymandering (Shelby County v. Holder and Husted v. Randolph Institute); closed courthouse doors to workers wronged by their employers (Epic Systems Corp. v. Lewis); unleashed floods of dark money to corrupt our politics and foul our democracy (Citizens United v. FEC and Americans for Prosperity Foundation v. Bonta); and more. Eighty to zero is a pattern so strong that it could serve as compelling evidence in a trial alleging bias and discrimination.

This pattern did not just happen. It is the fruit of a half-century-long operation by right-wing donors to win through the Supreme Court what they can't win through elected branches of government. In 1971, a corporate attorney from Virginia named Lewis Powell wrote a memo for the U.S. Chamber of Commerce laying out a game plan for corporations and right-wing ideologues to use "an activist-minded Supreme Court" as an "instrument for social, economic, and political change." (Within months, Powell himself would be appointed by Richard Nixon to the court to advance the plan from within. His memo was never disclosed to the Senate.)

Powerful interests have a long, sordid history of "regulatory capture." Volumes have been written on that history. For big donors, turning the techniques of regulatory capture to the Supreme Court was a short leap. Of course it can't be obvious, so the court-capture operation would obscure its influence using front groups and anonymous secret funding.

The Federalist Society emerged as gatekeeper, monitoring Republican-appointed judges for allegiance to right-wing donor interests, while accepting gobs of anonymous donations. The Judicial Crisis Network and its offshoots sprang up as political attack dogs in the confirmation fights for Federalist Society-approved judges, funded by anonymous donations as big as $17 million. Other front groups groomed convenient plaintiffs to manufacture controversies to give the selected justices cases that would generate precedent favorable to donor interests. Secretly-funded groups also began to lobby the court in orchestrated flotillas — through so-called "friend of the court" briefs — signaling which cases are important to donor interests and advising judges which way the donors want them to rule. They have a perfect winning record.

All of this required boatloads of anonymous money; what people who study this clandestine activity call "dark money." The Washington Post has exposed how the right-wing donor network spent upwards of $250 million in dark money on its judicial influence operation; testimony before my Senate Judiciary Courts Subcommittee has since upped that dark money figure to $400 million. Because the funding is covert, we do not know exactly who contributed that money or what interests they have before the court. But rarely do people spend $400 million for no reward.

The success of this operation is undeniable. And it is not legal conservatism at work. To reach the desired results, Republican justices often abandon the principles and doctrines of legal conservatism, like textualism and originalism. Take last term's Americans for Prosperity Foundation decision, which created sweeping First Amendment protections for the funders behind dark-money political groups, like the Koch-backed plaintiff in the case. As Justice Sonia Sotomayor pointed out in her dissent, the "decision discards decades of First Amendment jurisprudence" to produce a novel, activist creation in the law: constitutional protection for dark money. Good luck finding support for massive dark-money, special-interest spending in the debates at the Constitutional Convention.

Perhaps Justice Alito is so touchy because his fingerprints are all over this pattern of Republican judicial activism. Consider his decades-long judicial campaign against public sector unions, a prime political target of major Federalist Society donors like the Lynde and Harry Bradley Foundation. In a series of cases over a few short years (Knox v. SEIU Local 100, Harris v. Quinn, and Janus v. AFSCME), Alito invited successive challenges to a bedrock 40-year-old precedent protecting unions. Anti-labor front groups with financial ties to the Federalist Society and Bradley Foundation eagerly rushed cases to the court tailored to that invitation, and Alito delivered new First Amendment rights to strike the precedent and gut the unions. Textualist or originalist principles were nowhere to be found in his opinion.

If Alito and the Republican majority on the Supreme Court want the public to believe the court is not a secretive political "cabal" (his word) doing the bidding of big donors who helped put them there, they should deal with the evidence. Explain the 80-0 donor win record. Disclose who's behind the dark-money briefs. Stop the special-interest fast lane around the "case or controversy" requirement. Report gifts and hospitality — not worse than the other branches of government do, but better. Take precedent seriously when it doesn't suit you, not just when it does. Ditto recusal. Put yourself under a code of ethics, like every other federal judge. And understand that you have fouled your nest, not us, and that the Supreme Court must now at least match every other political institution with a renaissance of transparency. Democracy demands it. And the Court That Dark Money Built has squandered the benefit of the doubt.