The Scheme: How the Right Wing Used Dark Money to Capture The Supreme Court by Senator Sheldon Whitehouse with Jennifer Mueller M

“There’s no senator I can think of who’s done more sleuthing to figure out the money trail in American politics, particularly as it affects the courts.” —Jane Mayer, author of the national bestseller Dark Money

I LOVE THE LAW. I ACTUALLY REVERE THE law. As a boy, I wanted to be Atticus Finch. I loved Thomas More in A Man for All Seasons schooling his acolyte: “And when the last law was down, and the Devil turned ’round on you, where would you hide … the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down … do you really think you could stand upright in the winds that would blow then?”1 So it’s not an easy thing for me to call out our U.S. Supreme Court, which many have viewed as standing apart from politics. But to me, the evidence is compelling, and I fear that until someone points out that the emperor has no clothes, the emperor’s naked parade is likely to go on. Sadly, one of the consequences of this era of extreme partisan politics is that many people will not heed my warning about what is happening in our courts, especially in the Supreme Court, simply because of who I am: a sitting U.S. senator and a Democrat. I get it. But if you were to walk away from this book thinking I’ve simply set out my list of political grievances with recent Court rulings, I have not done my job. I am not alone in my concerns. Court watchers from the right and left report that the Supreme Court today is polarized “in a fashion we have never seen.”2 Veteran New York Times reporter Linda Greenhouse, who for years had rejected efforts to attach political labels to Supreme Court justices, finally admitted that it is “impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.”3 Norm Ornstein, of the right-leaning American Enterprise Institute, has called out the “tribal” politicized Court to the point of calling for term limits for the justices.4 After Justice Alito’s draft abortion ruling overturning Roe was leaked in May 2022, the condemnation language grew even hotter. “The conservative majority’s radicalism will deepen the crisis of American democracy,” said E.J. Dionne. Jennifer Rubin said a “partisan, radical majority” had “burst through the bounds of judicial restraint” in a “play for theocratic supremacy.” Under the headline “The Supreme Court’s Legitimacy Is Already Lost,” Dahlia Lithwick called it “one of the most brazenly political acts to ever come out of the court,” showing “staggering lack of regard for its own legitimacy”; that “there are simply no rules left at an institution that is supposed to be the one making the rules.” Charles Blow warned: “The robes can go rogue. This is the power Republicans want—the power to overrule the will of the majority.” The Star-Ledger described the Court as “irretrievably broken,” thanks to “political capture … driven by the dark-monied interests of the Judicial Crisis Network.”5 Recently, two members of President Biden’s Supreme Court Commission, retired federal judge Nancy Gertner and Harvard Law professor Laurence Tribe, published a disquieting op-ed headlined “The Supreme Court Isn’t Well.”6 This title mirrored the sentence in my amicus brief that provoked Justice Alito’s ire and the right’s “faux outrage.” The “anti-democratic, anti-egalitarian direction of this court’s decisions,” they wrote, move our democracy “toward a system in which the few corruptly govern the many, something between autocracy and oligarchy.” They called out in particular “the dubious legitimacy of the way some justices were appointed.” Now we come to the last category of evidence: the payoff. We’ve seen the motive behind the Scheme, even the plan; we’ve seen the means the right-wing elite had to work with; and we’ve seen the front-group method by which the Scheme was accomplished. We’ve seen the gale-force political pressure in the Senate, and how vulnerable a victim the Court was. We’ve even seen actual “admissions against interest” by the Trump White House (that the Federalist Society was “insourced”) and by the Federalist Society (that it “came up with” the nominees). We’ve seen how Trump outsourced judicial selection to that private operation while it was anonymously funded by unelected, unaccountable big donors. We’ve also seen how corporate, libertarian, and socially conservative forces merged in the 1970s and ’80s to create the right-wing anti-government movement that slowly infiltrated and took over the Republican Party. And how money in politics—especially the tsunami of unlimited dark money unleashed by Citizens United—accelerated the takeover. We’ve seen the Federalist Society use its 501(c)(3) arm to indoctrinate, groom, and audition candidates, and its associated web of shadowy 501(c)(4) affiliates raise and spend hundreds of millions of dollars. We’ve seen how similar Court capture was to the “regulatory capture” researchers have been documenting for years in administrative agencies, and how inadequate the Court’s own rules are at guarding against outside influence. And we’ve seen the judicial confirmation process in the Senate go from meaningful review to partisan rubber stamp, leaving a wreckage of norms, rules, prerogatives, and FBI integrity in its wake. Now let’s look at the loot, the booty, the proceeds of the Scheme. In assessing guilt, the principle of looking at who benefits has ancient roots. Cicero, talking about the murderous conspirator Clodius, said, “for such an audacious, nefarious monster it is enough to show that he had a great reason,” and cited the proverb of Cassius “who profits?”—a phrase still alive today in Latin, “cui bono.” So who benefited from the Scheme? By the time Justice Barrett joined the Court on the eve of the 2020 election, the partisan parade of civil cases under Chief Justice Roberts that gave big wins to big-donor interests had grown to number more than eighty cases—more than the Supreme Court’s typical total annual output. For the big-money donors, it’s been a feast. In 2020 and 2021, I worked with my fellow Democrats in the Senate to produce a series of “Captured Courts” reports showing what was at stake: women’s right to choose and to access contraception; communities’ ability to fight dirty fossil fuel companies making their children sick; workers’ rights to come together to negotiate for better pay and working conditions; consumers’ ability to hold companies that defraud them accountable in a fair trial; parents’ ability to keep their children safe from guns; and all of our rights to enjoy the free and democratic society that our Founders created and left for future generations to perfect. These “Captured Courts” reports can be found online. They are scrupulously researched, and they make for sobering reading. Those reports had their roots in an article I wrote in 2019 about what was then a seventy-three-case run of partisan 5–4 decisions for the big donors from the Roberts Court.7 It had seemed to me that something was terribly wrong at the Court as these decisions piled up, but it wasn’t enough to intuit that. I needed to confirm this intuition. First, I needed to make the case to my Senate Democratic caucus. My initial suggestions to the caucus that something was seriously wrong at the Court had not gone well. My colleagues were still heavily invested in the instinctive tradition of protecting the Court’s reputation. I owe Senator Patrick Leahy my gratitude for being the first to stand up to support me. As the dean of our caucus, our Senate president pro tempore, a chairman of Judiciary, and the senior Democrat on Appropriations, he’s seen a few things. So when Patrick spoke, people listened. And when he said, “Sheldon’s right. We need to listen to him,” it had a big effect. Thank you, Patrick...

(If you missed my July 4th earlier post on this book, look to the right to check it out as well)

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This one book is the most comprehensive exploration of exactly what has occurred to bring about the present Supreme Court as it exists and acts today. We had already learned, if you are an ongoing watcher of world news, that at least two of the Justices have accepted outside money for gifts, travel, et.al., as well as becoming aware that these two individuals' wives actively acted on behalf of the republican party to display partisan preference... without the justice husbands recusing themselves to ensure no conflict of interest was allowed. Flaunting normal rules, they have most recently voted to give the former president total immunity, being made so loosely that just about anything would result in the past president being immuned for his known criminal acts in office, including insurrection...

“An alarming . . . account of efforts to install conservative judges on the Supreme Court and the federal judiciary. . . . Whitehouse gathers copious evidence and strikes a fiery tone.” —Publishers Weekly

“Chapter and verse on how the U.S. Supreme Court was ‘captured.’”—The Boston Globe

“A harrowing account of how right-wing billionaires and business interests have worked to capture the American judiciary—all the way up to the Supreme Court—to create an American plutocracy. Anyone who cares about the future of American democracy—indeed, the future of America, writ large—needs to read this book.” —Naomi Oreskes, professor of the history of science, Harvard University, and author of Merchants of Doubt

Readers, I've taken the time to check some of the more recent videos available related to The Supreme Court. The last one, shown above, is very important. It is also two years old! My point is that I can recommend this book to you over and over and over. But if we do not vote to ensure that this type of corruption is not stopped immediately (like in November 2024) there really is no reason to continue to learn, read, and discover exactly what is happening in America. These are not lies... Many of the issues we have seen occur with our own lies; e.g., when the past president incited those of his followers to march to our capitol and commit treason/insurrection. We all saw it happening. And, if you didn't actually see it, there are many videos and books out there sharing personal experiences of what happened that day. As mentioned above, the wife of one of the justices was there! 

This book is going to be tedious reading, I admit that. It is explained effectively, but still, it is...just...tedious. It is full of information that has led to the most recent mandate by the Supreme Court that says that the past president is immune for anything during his time in office... Delay after delay has been forced on Americans as slow (if any) justice is attempted. If you want more information, the Senator has videos on his YouTube channel... All I ask is that you understand what has happened and, hopefully, ensure by your votes that it stops before further damage occurs...

God Bless

Gabby