The Real World . . .

Following is an Op-Ed piece by Senator Sheldon Whitehouse (D-RI), regarding the influence of anonymous “dark money” on the American judiciary, especially the Supreme Court, and a video of his related presentation in the recent Amy Coney Barrett hearings. Both are well worth a careful review; real eye-openers. The video presentation exposes the coordinated, anonymous, $250 million funding and lobbying program coordinated by three non-profit organizations – the Federalist Society; the Judicial Crisis Network; and the Bradley Foundation; utilizing a string of non-profit entities as screens to hide their funding sources, and providing a long term, anonymous, tax-deductible, taxpayer-subsidized campaign to re-orient America’s judiciary by loading the judicial branch, especially the Supreme Court, with conservative justices so extreme in their libertarian, “Originalist” ideologies that they are hostile to the role of modern government in social welfare programs and to the vast arena of administrative law required for effective regulation of the economy and the environment. This has evolved in large part as a result of the eradication of the country’s modest campaign finance regulation by the Supreme Court’s 2010 “Citizens United” decision. Whitehouse, a former U.S. Attorney, prosecuted Buddy Cianci, the infamous corrupt mayor of Providence, RI; and was elected Rhode Island’s Attorney General, then its U.S. Senator. I hope that Whitehouse is figuring out how to use the Federal R.I.C.O. (Racketeer Influenced and Corrupt Organizations) statute to take this syndicate down, as he did with Cianci in Providence. Because as much as Amy Coney Bryant insists she “does not have an agenda”, the Judicial Crisis Network and the Federalist Society certainly do, and that is deregulation of the economy, the environment, and campaign finance; all as we face existential threats in the form foreign intervention in our political system and irrecoverable damage to the human habitat.

The Supreme Court Has Become An Arm of the GOP

By Sheldon Whitehouse – Washington Post – September 6, 2019

Politics is a team sport. We battle, and our courts are supposed to referee our disputes. But what if one team spent years and millions of dollars to capture the referees, so the refs could declare that team the winner whenever they fell short on the field? If you were on the other team, you’d cry foul. You’d ask: “Hey, when did the law become a team sport, too?’’

A few weeks ago, several Senate colleagues and I did just that when we filed a friend-of-the-court brief in a case before the Supreme Court in which the National Rifle Association had urged the court to continue its “project” (the NRA’s term) to undermine gun regulations. We cried foul. That triggered a remarkable response.

Conservative media lit up in unison. Fox News and the Wall Street Journal editorial page, for instance, attacked us for advocating “court packing,” something we did not advocate. The Journal used language so similar to a separate National Review op-ed that it issued an unusual editor’s note denying plagiarism. Then, all 53 Republicans in the Senate cranked out a letter to the court’s clerk decrying our brief. What hoopla.

Without Precedent: Chief Justice John Marshall and His Times
John Marshall

So, what did we actually say? We said this: From 2005 through the fall term of 2018, the Roberts court issued 73  5-to-4 partisan decisions benefiting big Republican donor interests: allowing corporations to spend unlimited money in elections; hobbling pollution regulations; enabling attacks on minority voting rights; curtailing labor’s right to organize; denying workers the ability to challenge employers in court; and, of course, expanding the NRA’s gun rights “project.” It’s a pattern.

Of course, in other decisions during that period, such as the 2015 same-sex marriage ruling, a Republican appointed justice joined the liberals. But in its run of 73 partisan 5-to-4 cases, the Republican majority routinely broke traditionally conservative legal principles, such as respect for precedent or “originalist” reading of the Constitution. They even went on remarkable fact-finding expeditions, violating traditions of appellate adjudication.

Plaque on the Wall of the Supreme Court Building

In their letter, our Republican colleagues invoked Alexander Hamilton’s vision of the “complete independence of the courts.” We’re glad they did, because our purpose in calling attention to this pattern is to help restore the judicial independence Hamilton envisioned.

The big-donor takeover of the federal courts begins, as reported by The Post, with a sprawling network of organizations funded by at least a quarter-billion dollars of largely anonymous money, and spearheaded by the Federalist Society’s Leonard Leo. We saw this network’s hand in the confirmations of Justices Neil M. Gorsuch and Brett M. Kavanaugh. One unnamed donor gave $17 million to the Leo-affiliated Judicial Crisis Network to block the nomination of Judge Merrick Garland and to support Gorsuch; then a donor — perhaps the same one — gave another $17 million to prop up Kavanaugh. The NRA joined in the effort, too, spending $1 million on an ad campaign supporting the Kavanaugh confirmation to “break the tie” (again, the NRA’s words) in gun cases.

With its judges in place, the network lobbies the court with anonymously funded amicus briefs, signaling how the judges should vote. In one case, Janus v. AFSCME, one anonymously funded group backed 13 different amicus briefs fighting public-sector unions’ right to organize. The decision came as expected, 5 to 4, throwing out 40 years of settled labor law.AD

The John Marshall Project - Boston College

Republicans and their big donors now see the court as part of their team. They can achieve political gains there that they cannot win in Congress. The supposedly apolitical nature of the court partly protects these political gains from critique. And after 73 partisan victories, they’ve had a hell of a run. That explains why our brief provoked such an outcry from their side.

But Americans can smell a rat. The pattern is too distinct to ignore. We warned the court of polls showing that the public’s faith in the court’s independence is eroding. Americans becoming wise to their game is surely concerning to the anonymous funders. Corporate, polluter and partisan donor interests want the eyes of the nation turned elsewhere, while their “projects” play out in captured courts.

So the right-wing media eruption tried to deflect our plainly stated concerns by suggesting we want to change the number of justices on the court. That’s not what we’ve argued. My own calls for judicial reform have been for transparency around the dark money behind judicial nominations and amicus briefs; for improved ethics reporting and a court code of ethics; and for justices to follow principles they espouse at confirmation hearings such as respect for precedent, judicial modesty, deference to duly passed laws of Congress, letting fact-finders find the facts, and calling balls and strikes apolitically. None of that seems unreasonable.AD

The right-wing eruption offered no defense of why a multimillion-dollar secret influence apparatus should be involved in selecting justices and campaigning for their confirmation and filing anonymous amicus briefs. There was no defense of the court systematically overturning precedents or inviting challenges to well-established doctrines or finding specious facts or discarding appellate norms; and there was no defense of the run of 73 partisan decisions.

Instead, we saw precisely the howl of coordinated, multiple-mouthpiece misdirection you would expect to hear from big donors whose scheme to capture the Supreme Court for one team was suddenly exposed and is now at risk.

Senator Sheldon Whitehouse – Barrett Nomination Hearing – October 13, 2020

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