Opinion Sheldon Whitehouse was right all along: The Supreme Court is corrupt
"Sen. Sheldon Whitehouse has been arguing for years that a flood of “dark money” flowing through right-wing front groups has corrupted the Supreme Court. Never has there been more evidence to bolster his claim.
Whitehouse (D-R.I.) told me in an extensive phone interview last week that Justice Samuel A. Alito’s Jr.’s op-ed in the Wall Street Journal intending to pre-but a ProPublica story revealing he failed to disclose gifts from billionaire and right-wing donor Paul Singer and recuse from a case involving Singer was “very, very weird.” And it was not merely because he took to the op-ed pages of a sympathetic right-wing Rupert Murdoch newspaper as though he were a panicky politician trying to control the damage. (If that were his intent, it horribly backfired because the stunt only called attention to his angry response and the underlying charges. He managed to make it front-page news. "“If you were filing a pleading, this would have pretty much failed,” Whitehouse observed.)
The senator ticked off the problems with Alito’s argument: factual omissions (e.g., the standard for exempt gifts does not include transportation); Alito’s lame effort to turn an airplane into a “facility” to jam it into an exempt-gift category (“It doesn’t pass the laugh test,” Whitehouse said); Alito’s plea that he couldn’t possibly have known Singer had a financial stake ($2 billion) in the outcome of a case before the court (although it was widely reported in the media); and the insistence that yet another billionaire was a “friend,” which somehow absolved him from his obligation to report gifts of “hospitality.” And, Whitehouse argued, it strains credulity that Alito (like Justice Clarence Thomas) could be confused about reporting requirements when there is a Financial Disclosure Committee expressly set up to help judges navigate these issues.
All in all, the poorly reasoned argument amounted to what Whitehouse called “a painful exhibit for an actual ethics code.” A bill he co-authored with Judiciary Chairman Richard J. Durbin (D-Ill.), set to be marked up after July 4, would confirm that the code of ethics applicable to all judges applies to the high court, set up a process for screening ethics complaints and allow chief judges of the circuit to advise on how their circuits handle similar matters. This is “not remotely unconstitutional,” he noted. (Whitehouse wryly remarked that the last thing the justices want is a comparison to circuit courts’ conduct. “The best way to show that a stick is crooked is to lay a straight stick alongside it,” he said.) Whitehouse is merely asking for the court to develop a process that the judicial branch would oversee for the sake of restoring confidence in the Supreme Court.
Yet another poll, this time from Quinnipiac, shows the court’s approval at an all-time low — 29 percent. Don’t they care? Whitehouse surmises that some justices resent anyone questioning their conduct. But, more troubling, he worries that the chief justice has yet to promise a mandatory ethics scheme nor has there been “a chink in the Omerta armor” of the other justices. Any one of them could come forward to acknowledge the problem.
When asked to testify before Congress on ethics reform, Chief Justice John G. Roberts Jr. — who heads the Judicial Conference, an entity created by Congress and dedicated to court administration — refused to come. Mind you, Roberts was not being asked to testify not about the court’s decisions or internal debates but about his own administrative role. Whitehouse said that Roberts’s refusal was “astonishing.”
Whitehouse has long maintained that the court’s unprincipled, outcome-oriented and partisan decision-making is very much linked to the ethics problems. “The ethics problem is not just relevant to expensive gifts and fancy vacations,” he told me. The ethics issues “don’t occur in a vacuum,” he said. They point to “a bigger enterprise whose purpose is to capture the court.”
Whitehouse explained that dark-money groups such as the Federalist Society, led for years by Leonard Leo, put together a list of acceptable high court nominees from which President Donald Trump picked three justices. A closely aligned entity, the Judicial Crisis Network, spent millions to help get the justices confirmed (while donating to Senate Republicans to guarantee their support). Leo and others in dark-money groups filed amicus briefs to advance their agenda. And then Leo set up cozy connections between the billionaire donors and the justices for “hospitality” from their “friends.” Leo arranged Alito’s fishing jaunt and helped set up Thomas with billionaire Harlan Crow. If you put together billionaires, dark money and “phony front groups,” you wind up in a “whole new world,” he argued.
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Even if Whitehouse’s ideal ethics bill got passed (currently impossible with the GOP majority in the House and the filibuster in the Senate), major problems would remain with the court. Whitehouse does not — for now — want to “get out over our skis” in jumping to court expansion, one proposed solution to the court’s issues. The country isn’t there yet, in his view. However, “The public knows enough about the troubles at the court to support reasonable term limits.”
Whitehouse is well aware that the constitutionality of a statute imposing term limits would be challenged and, yes, would likely find its way up to this very Supreme Court. However, a case would likely start in district court and advance to a circuit court before reaching the high court. There would be full briefing, a factual record and decisions by lower courts. If, after all that, the Supreme Court nixed a widely popular term limits law, the public outrage and academic criticism would be intense. Indeed, the appetite for expanding the court might grow.
Despite this dreary and depressing state of affairs, Whitehouse remains undaunted. “We’re still finding out the facts,” he told me regarding the latest ethics scandal. He said he is confident that as the full story is brought before the public, the impetus to act on court reform, at least among Democrats, will intensify.
In the meantime, the best argument for court reform comes from Alito, whose arrogant, slipshod and unconvincing defense makes him the poster boy for serious court reform.
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