America’s captured courts

WASHINGTON, DC — Any objective observer of the American political system must wonder why, when the United States confronts the world’s highest COVID-19 death toll and a ravaged economy, US Senate Majority Leader Mitch McConnell will do nothing but confirm outgoing President Donald Trump’s appointees to the federal judiciary. It is strange behaviour.

The explanation is a special-interest lobby operating largely out of public view, a political creature that has stalked America’s judiciary for generations and is determined to capture as much control as it can, while it can.

In fairness, McConnell is not the only one acting strangely. In the fall of 2016, Republicans invented the convenient “principle” that the Senate shouldn’t confirm Supreme Court nominees in an election year, and blocked president Barack Obama’s nominee, the well-respected Merrick Garland. Senator Lindsey Graham was unequivocal about the precedent: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.”

“Hold the tape,” Graham added.

Fast-forward to Justice Ruth Bader Ginsburg’s death in September , a mere six weeks before the election, and Republicans ignored the tape. Within 80 minutes of the announcement of Ginsburg’s passing, McConnell signaled that the Senate would ram a Trump nominee through the confirmation process and onto the Court. Republicans quickly fell into line. Some members even declared their total support for the nominee before a nominee had been named.

From there, Republicans cast aside one norm after another in the mad rush for the open seat. They ignored Ginsburg’s wish that the president elected in November pick her replacement. They violated the normal process and timeframe for confirming a Supreme Court nominee, compressing months of consideration into a few weeks. They ignored a raging pandemic and positive COVID-19 tests among their own members, the result of a White House super-spreader celebration for the nominee. And, of course, they hypocritically reversed their own “Garland principle”, holding the Barrett confirmation hearings even as early voting in the presidential election was underway.

The force behind these blown norms and bare hypocrisy can be difficult to spot. But if you find hypocrisy in the daylight, look for power in the shadows.

Decades ago, a wealthy group of corporate interests and right-wing ideologues hatched a plan to influence US courts in systematic fashion. They recognised that the unpopular policies they sought — reducing voters’ access to the polls, flooding elections with unlimited corporate money, and unwinding vital environmental protections — faced steady headwinds in the elected branches of government. But courts, stocked with amenable judges and presented with the right cases, could reliably deliver political wins without answering to the voting public.

At the instruction of soon-to-be Supreme Court Justice Lewis Powell, the group set about building an influence machine to pack and manipulate the courts. This work culminated when Leonard Leo, an entrepreneur of conservative politics, constructed a pipeline for judicial nominees through the Federalist Society, the organisation Trump “in-sourced” to the White House to handle his judicial selections.

The group operating the Federalist Society pipeline also orchestrated political-style campaigns to ease nominees’ confirmation, including attack ads against senators who might stand in their way. It backed organisations that troll for plaintiffs of convenience to bring forward cases that advance the big donors’ agenda. And it propped up flotillas of supposedly independent nonprofit groups to lobby the courts as amici curiae (“friends of the court”), filing legal briefs to signal judges on how to rule.

This gave a small group of anonymous donors effective control over Republican judicial appointments, and a lobbying platform to deliver to the judges the donors’ programme, all while keeping their role concealed. In effect, corporate interests have run a covert operation against their own country.

Dark money is the lifeblood of this sprawling scheme. Enormous quantities of anonymous funding mask the special interests behind the court capture machinery and obscure the coordination that sustains it. According to The Washington Post, Leo’s network of front groups accounts for at least $250 million.

Consider the Judicial Crisis Network, which coordinates public-relations efforts and runs campaign ads for right-wing judicial nominees. It received anonymous donations of $17 million in the fight over Justice Antonin Scalia’s Supreme Court seat; $17 million for Brett Kavanaugh’s troubled nomination to the Supreme Court; and $15 million to help confirm Amy Coney Barrett as Ginsburg’s successor. If it was the same donor, then one person spent nearly $50 million to influence the makeup of the US Supreme Court. And we have no idea who that person is, much less what business he or she may have before the Court.

Then there are the flotillas of coordinated amicus filers. The right-wing influence machine channels funds through identity-laundering organisations, such as DonorsTrust and Donors Capital Fund, to groups which then submit a hail of briefs supporting the donors’ preferred outcome. We saw this in the Consumer Financial Protection Bureau (CFPB) case this year: a watchdog group found that a handful of identity-laundering organisations had funneled more than $68 million to fund 11 amicus briefs, which naturally all argued for weakening the CFPB, a nettlesome adversary of corporate special interests.

The result of this scheme is a disturbing record of decisions favouring an array of special interests. Over the course of Chief Justice John Roberts’s tenure, the court has delivered 80 partisan 5-4 decisions that benefit identifiable Republican donor interests. Some of the more flagrant and damaging decisions — like the infamous 2010 Citizens United ruling that paved the way for unlimited dark money spending in elections — drew public ire. But most have gone unnoticed, as when the court quietly undermined Americans’ access to civil juries or weakened the independence of regulatory agencies.

Left unchecked, the list of partisan victories at the Supreme Court would grow, possibly even faster with the court’s new 6-3 Republican-appointed majority.

One measure to counter this clandestine, corrupting machinery is sunlight. Exposing its workings and funding will lead to informed public scrutiny and overdue introspection within the US judiciary. The public will be able to demand change, and the courts will be able to safeguard themselves from future special interest intrusion.

Of course, those financing the court capture operation will spare few resources to defend it. But the more light we can shine on their creature, the less able it will be to operate in the shadows.

Sheldon Whitehouse is a member of the US Senate from Rhode Island. Copyright: Project Syndicate, 2020. www.project-syndicate.org