The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court

By Senator Sheldon Whitehouse and Jennifer Mueller

“A damning investigation of dark money by a senior member of the Senate Judiciary Committee” (Kirkus Reviews) with a new preface on recent disclosures about efforts to influence the Court

“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

As the story of Supreme Court malfeasance and ethics violations repeatedly makes front-page news, the paperback version of The Scheme comes at a time of crisis for the American judiciary.

Following his book Captured on corporate capture of regulatory and government agencies, and his years of experience as a prosecutor, Senator Sheldon Whitehouse, whom Senator Elizabeth Warren calls a “a powerful voice in defending our American democracy against the relentless, pervasive—and often hidden—power of corporate special interests,” here turns his attention to the right-wing scheme to capture the United States Supreme Court. Whitehouse chronicles a hidden-money campaign using an armada of front groups, helped by the infamous Citizens United Supreme Court decision, employing the Federalist Society as an appointments turnstile, and with the same small handful of right-wing billionaires and corporations enticing the Senate to break rules, norms, and precedents to confirm wildly inappropriate nominees who would advance their anti-government agenda.

Now available in an affordable paperback edition with a new preface addressing the Reverend Schenck disclosures about politicking the justices and Justice Thomas’s recently disclosed conflicts of interest, The Scheme offers what Kirkus Reviews calls “a maddening indictment of a corrupt and corrupted judiciary.”

• Language: English
• Publisher: The New Press
• Release date: Oct 10, 2023
• ISBN: 9781620978375

Senator Sheldon Whitehouse

Sheldon Whitehouse represents Rhode Island in the U.S. Senate. He has served as his state’s United States Attorney and as the state Attorney General, as well as its top business regulator. The author of Captured (The New Press), he lives in Newport, Rhode Island.

Book preview

Cover: The Scheme, How the Right Wing Used Dark Money to Capture the Supreme Court by Senator Sheldon Whitehead, Jennifer Mueller

ALSO BY SHELDON WHITEHOUSE

Captured: The Corporate Infiltration of American Democracy

On Virtues: Quotations and Insight to Live a Full, Honorable Life

THE

SCHEME

How the Right Wing Used Dark Money

to Capture the Supreme Court

Senator Sheldon Whitehouse

with Jennifer Mueller

Logo: The New Press

This book is dedicated to the small brave band of writers, researchers, and scientists who investigate and report on the poisonous creep of secret influence into America’s democracy. They include Jane Mayer, Naomi Oreskes, Nancy MacLean, Michael Mann, Bob Brulle, Riley Dunlap, Justin Farrell, and Lisa Graves, among others.

Their warnings have received too little attention, but history will note their work.

—S.W.

For Ana, Christopher, Thomas, and Julia

—J.M.

Justice removed, then, what are kingdoms but great bands of robbers?

—SAINT AUGUSTINE

Contents

Preface

Introduction

Part I: Behind the Scheme

CHAPTER ONE: Climate Denial, Regulatory Capture, and Covert Ops

CHAPTER TWO: Of Courts and Corporations

Part II: Motive

CHAPTER THREE: Of Social Gains and Election Losses

Part III: Means

CHAPTER FOUR: The Plan: The Powell Memo

CHAPTER FIVE: Building the Influence Machine: Campaign Finance Cases

Part IV: Co-conspirators

CHAPTER SIX: Mercenaries, Fringe Groups, and Lobbyists

CHAPTER SEVEN: The Front Group Archipelago

CHAPTER EIGHT: Super PACs, 501(c)s, and Corporate Shareholders

Part V: Method

CHAPTER NINE: The Federalist Society Turnstile

CHAPTER TEN: The Doctrine Factory and Casting Call

CHAPTER ELEVEN: The Senate Conveyor Belt

CHAPTER TWELVE: Plaintiffs of Convenience and Friends of the Court

Part VI: A Susceptible Victim: The Compromised Court

CHAPTER THIRTEEN: Ripe for Capture

Part VII: Payday: The Captured Court

CHAPTER FOURTEEN: The 80 (aka The Prize)

CHAPTER FIFTEEN: Cases Controlling the Political Process

CHAPTER SIXTEEN: Cases Protecting Corporate Interests

CHAPTER SEVENTEEN: Cases Restricting Civil Rights

CHAPTER EIGHTEEN: Cases Advancing a Far-Right Social Agenda

Part VIII: Rebuttal

CHAPTER NINETEEN: So-Called Conservative Principles

CHAPTER TWENTY: The Shadow Docket

Part IX: Closing Argument

CHAPTER TWENTY-ONE: The Scheme

Acknowledgments

Appendix A: The 80: Decisions by the Roberts Five, 2005–2019

Appendix B: Amicus Briefs Filed by Senator Sheldon Whitehouse

Appendix C: Whitehouse Brief Appendix: Overlapping Amici Funders in Seila Law

Appendix D: Wharton Analysis of Corporate Funding Disclosure

Notes

Index

Preface

SINCE THIS BOOK FIRST WENT TO PRINT a year ago, events have powerfully confirmed its central thesis: that this is not a conservative Court but rather a captured Court; that identifiable interests customarily win in its decisions; and that these interests are linked to the covert darkmoney operation that put certain justices on the Court.

This book shows how this scheme was crafted and executed over decades. These are the elements of the crime: justices carefully picked for their willingness to undo Court precedents in ways the donors wanted; a pattern of rules-changing and fact-finding to get the desired results; a sloppy and loose ethical culture that provided no investigation or enforcement of ethics violations; and a frightening tolerance for secrecy, particularly around dark-money political interests.

The recent Dobbs decision was a horrific example of broken precedents. I described the right wing’s prep work for the Dobbs decision in the book, but the decision itself came after the book went to press. Dobbs can now become Exhibit A in my case that the captured Court is on a calculated path of precedent demolition. Precedent is the foundation of the Court’s integrity and legitimacy; Dobbs exemplifies how much precedent these Federalist Society justices are willing to wreck in order to deliver victory for the political forces that put them on the Court. For the FedSoc justices, the ends justify the means.

This is not just the result of honest disagreement. If there were any doubt, Dobbs brought that point home. As a senator, I am particularly vexed by the answers those justices gave about Roe v. Wade when they were trying to get confirmed. Hiding the truth behind careful phrasing to obscure an ulterior purpose is not conduct appropriate to the judicial role, nor is it the way one behaves in honest disagreement. Every indication is that the justices’ assurances were knowingly and strategically false, cover for the day when—like sleeper agents—they would number a majority and could act on their real intentions. Alito even admitted as much in his opinion in Dobbs, saying that Roe was egregiously wrong from the start. From the start means always, including when Alito was being confirmed. He egregiously missed saying that when he was being shopped to the Senate.

The Scheme points out how Federalist Society justices will change the rules to get their way. In Dobbs they did exactly that. Dobbs (and Bruen, a gun case that also followed The Scheme going to print) launched a whole new method of constitutional analysis, extracting law from history and tradition. The previous, longstanding constitutional test balanced the interests of government against the interests of affected individuals—in Dobbs, primarily women of child-bearing age. Women’s rights and interests would have been front and center in that balancing analysis. The new, backward-looking test simply writes women out.

Worse, it imposes a new bias favoring old injustices embedded in our history and tradition. Our history and tradition includes women not being allowed to own property or obtain credit, get protection of the law against domestic violence, or vote. It has long been conservatives’ goal, as William Buckley said, to stand athwart history, yelling Stop. A new, backward-looking test, even looking centuries backward, makes a useful tool for justices who want to stop the course of history.

I warn in The Scheme of the fact-finding license that the FedSoc majority has so often taken to get its way. Decisions like Shelby County and Citizens United got to their results via false fact-finding. The new history and tradition test gives dangerous new opportunities to the justices to become amateur historians, sifting through the past for selected evidence to support their predilections. In Dobbs and Bruen, it did not go well. The Dobbs history effort was called either incredibly bad history or simply dishonest and Bruen’s was called a version of the past that is little more than an ideological fantasy.¹ But good history didn’t matter—the decisions delivered the desired result, and the Federalist Society justices’ new history and tradition method provided the means.

This new door that the justices opened to appellate fact-finding (about what is in our American history and tradition and what is not) obliges us to pause for a moment, because appellate fact-finding is actually a big deal. As I explain in Chapter Nineteen, judicial fact-finding is not supposed to happen at the appellate level at all; it is supposed to be done by trial courts. When an appellate court finds on appeal that there has been a factual error by the trial court, it’s customary for the appellate court to remand the case to the trial court. I remember as a young lawyer being advised, Don’t argue about the facts. You’re on appeal now. The standard of review is daunting, and appeals courts aren’t set up for that. Argue the law. There are innumerable decisions in which the appellate court says, We therefore remand the case to the district court for further proceedings consistent with this opinion. It’s a principle of the American system of justice that fact-finding is assigned to trial courts.

There are two big reasons for this. The assignment of fact-finding to trial courts protects the constitutional separation of powers, by tethering appellate courts closely to the specifics of the actual case or controversy before them, inhibiting their freedom to roam into improper policy-making. It also protects the integrity of the facts that are found, by exposing them first to adversarial contest and then to appellate scrutiny, all in broad judicial daylight. Facts manufactured in darkness at the Supreme Court level evade all these protections.

The Scheme points out that the activist Roberts Court has been particularly bad about adhering to these principles of fact-finding. Worse, in its fact-finding it has been particularly bad about adhering to the truth. This isn’t just some persnickety matter of the FedSoc justices getting an errant fact wrong; their fact-finding errors have had big consequences. False fact-finding propped up partisan decisions with grave results for our democracy. Shelby County and Citizens United put a heavy thumb on the political scales in anti-democratic ways that massively favored Republican political interests. Dobbs took a constitutional right away from half the population. Bruen handcuffed citizens’ ability to pass laws for their own protection from gun violence. So a new avenue for even more appellate fact-finding is a real danger in the hands of this Court. (After this book went to press, I wrote a law review article on the appellate fact-finding problem, because solving the false fact-finding problem gives us a principled pathway to undoing the worst mischief of The Court That Dark Money Built. Have a look if you’re interested. And while I’ve got you reading law reviews, Allison Orr Larsen at William & Mary Law School has published a good one touching on the political forces helping to create Supreme Court doctrine, and Professor Jon Hanson at Harvard Law School has held a seminar on corporate capture of courts and law.)²

Dobbs also starkly illustrated the ethics problem I describe at the Court. Alito’s draft opinion in Dobbs was leaked, and the right wing and the FedSoc justices erupted in umbrage. The Chief Justice, irate, ordered an investigation. This exposed that when the Court wants to, it can investigate.

So why was there no investigation of what Justice Thomas knew, and when he knew it, about his wife’s insurrection activities, as that bore on his failure to recuse from the January 6 investigation case? Why no investigation of the twenty-year, $30-million Operation Higher Court, exposed by former evangelical activist Rob Schenck, that wined and dined amenable justices to push them for strong antiabortion decisions; and why no investigation of the apparent leak of the Hobby Lobby decision, said to come from an Operation Higher Court dinner with Justice Alito? However the information came to him, Operation Higher Court’s top operative clearly knew in advance the outcome of that decision—a fact corroborated by real-time evidence that he urged allies and clients to come to the Court to enjoy their victory’s announcement. These ethics questions all are investigable. Yet there has been no investigation.

Things recently went from bad to worse with ProPublica’s disclosure of enormous secret gifts to Justice Thomas, from a billionaire who serves on the board of groups that are frequent amicus brief filers at the Court. I led the call for a real investigation. Other courts can do that. So should the Supreme Court. To add to the mess, a painting was revealed showing the billionaire, Leonard Leo, and the Justice all together on vacation. Shortly after, a payment commanded by Leonard Leo to the Justice’s spouse was revealed. A tangled web, indeed.

The Dobbs opinion leak exposed how badly set up the Court is to manage an investigation—it was a botch. Other courts and other branches have teams of experienced investigators to do this work. For the Supreme Court, this was amateur hour. Unsurprisingly, politics seeped in. The Court’s botched investigation found no culprit, yet its report of the investigation managed to assign to the unfound culprit a motive. The Court implied, without evidence, that the leak was a misguided attempt at protest. (Emphasizing the wrong felt by the Court, the cover report said that the leak was no mere misguided attempt at protest—the imputation of motive was collateral but clear.)

Identifying protest as the supposed motive cast the blame on chamberrs and employees who would be likely to protest the decision. There was a perfectly good alternative motive, however: an effort by Alito or others to pin down any wobbly FedSoc justices, by showing the antiabortion world what the wobblers had walked back from, thus killing the chance for a more moderate opinion. That equally credible motive went unmentioned.

In the original post-leak hue and cry, Roberts and my Republican colleagues seemed to presume that some liberal clerk or staffer was the culprit, so the dogs were set loose: sworn affidavits, seized phones, reviewed emails, talk of criminal prosecution. Yet once it became apparent that a fellow justice might be involved, the dogs were collared. The original report never mentioned any investigation of the justices. When that omission was called out, an addendum was quickly released saying that justices participated in some so-called iterative process that had none of those investigative steps, a process in which the justices got to ask questions. It seems no statements were taken, violating Investigations 101. I’ve done a lot of investigations, and this was all terrible practice. But it covered for the justices. Supreme Court ethics omertà prevailed again. And the colossal flub of the investigation, ironically exemplified by the weird effort to prop it up by hiring a private firm as third-party validator, was another blot on the Court. A real investigative capability would solve this.

The Scheme also examines the problems of gifts to justices of personal hospitality and appearances at the Court of front-group amici curiae who mask the actual participants. There’s been a mote of progress on that front since the book went to press. Here’s the story.

In my position as chairman of the Courts subcommittee of the Senate Judiciary Committee, I get an ex officio opportunity to address the Judicial Conference, the annual administrative convening of the federal bench. This convening takes place in the huge and ornate reception room at the Supreme Court, near the Court chamber where arguments take place. Dozens of judges, including all the Circuit Court of Appeals chief judges, sit around a big square of tables, in throne-like chairs. When I am called to take my seat next to the Chief Justice for my remarks, a Court staff person is required to help move the great chair in and out. It is an imposing scene. I have used my last two presentations to lay out the ethics concerns that worry so many of us about the Court, in fairly precise detail. Sitting next to the Chief Justice, I have pressed the Conference to look diligently into ethics issues the Court has ignored. I am polite and respectful, but also firm and factual.

Two investigations have been undertaken by the Judicial Conference. One involved looking into the problem of the squadrons of front-group amici who appear in orchestrated harmony in cases of interest to the big donors, without disclosing the big donors they’re there for. The other looked into the problem of treating personal hospitality provided to justices of the Supreme Court (as in dozens of hunting trips comped to Justice Scalia over the years) as exempt from disclosure requirements. I hope these efforts signal that regular federal judges, who operate under ordinary judicial ethics rules and review, were getting fed up with the Supreme Court’s unreviewed and unreviewable shenanigans.

As I was writing this new preface, I was notified by Judge Roslynn Mauskopf, who heads the Judicial Conference (technically, she’s Director of the Administrative Office of the Courts), that the Conference had changed the personal hospitality rules. There will be no more undisclosed personal hospitality at commercial resorts from resort owners the justices don’t actually know personally, and presumably also no partisan companions with interests before the Court tagging along on these undisclosed jaunts—a small but conclusive victory. And two weeks later, the ProPublica bombshell about Justice Thomas’s gifts went off, confirming the wisdom of the Conference firmly closing this supposed loophole. Thomas publicly confirmed he would comply.

This began after I’d been rebuffed by the Court. So I decided to ask all the Circuit Court chief judges a hypothetical. Without using names, I asked all of them how the Scalia hunting resort pattern I describe in Chapter Thirteen would be treated in their circuits—would that be okay as personal hospitality, as they saw the rules? When none responded, I surmised the Supreme Court had gotten involved, so I asked again, adding: I hope this unanimous failure to respond does not signal a lack of concern for judicial ethics issues, much less a coordinated effort to ignore a congressional request. I then heard that the matter had been referred to the Judicial Conference, and this welcome result ultimately followed.

The Judicial Conference review of anonymously funded front-group amici curiae has produced no results yet. I hope they clean up the front-group amici problem as effectively as they cleaned up the personal hospitality problem. But even if they do, it would still leave a full-on Augean Stables of mess, with no ethics code, or more precisely no ethics process in force at the Supreme Court. Regular federal judges operate under an ethics code with investigative process to enforce it; pretty much everyone in government, in the executive, legislative, and judicial branches, operates under an ethics code with a means of investigation and enforcement. The Senate Ethics Committee exercises those authorities over me, for instance. Supreme Court justices are unique across the entire United States government in having no process, so de facto no rule. The new scrutiny on justices’ personal hospitality and the continuing review of front-group amicus secrecy are important cracks in the bulwark of indifference the Supreme Court has maintained to its ethics and dark-money troubles, and the reviews of the more recent Thomas allegations provide a further opportunity, but there is still much to be done.

Also since The Scheme’s publication, investigative journalists have revealed an unsavory capstone to the Leonard-Leo-and-his-Creepy-Billionaires saga into which I delve. You will learn a good deal about the Federalist Society’s Leonard Leo and his efforts to capture the Supreme Court in this book. Like much of the dark-money effort enmiring the Court, this new bit of mischief was clandestine. Here is what went down. Leo added to his existing flotilla of front groups a new one, incongruously formed in Utah, called the Marble Freedom Trust—another 501(c)(4) tax-exempt entity in the Leo fleet. Into this entity was deposited a corporation (an actual working corporation with products and revenues and employees) being readied for sale by a billionaire named Barre Seid.

Seid has considerable history in dark-money activities, having been the angel of a dark-money entity called the Heartland Institute that specializes in climate denial. The Heartland Institute is so poisonous, pulling stunts like posting a billboard comparing climate scientists to the Unabomber, that even ExxonMobil pulled its public funding of the group. Seid not only stuck with them, he tasked his corporate CFO to help guide Heartland Institute through whatever difficulties it was experiencing. It’s a dark-money climate denial shop still in operation today.

Seid’s company-for-sale lands briefly in the tax-exempt Marble Freedom Trust, and is then sold by the Trust for $1.6 billion dollars. The result of this transaction is that Seid avoids about $400 million in taxes. More important, Leo gets a $1.6 billion slush fund to play with as the proceeds of the sale land in Marble Freedom Trust. This nearly triples the $580-plus million I describe in the book that investigators have tracked into this Court-capture scheme. Leo can now sprinkle the money around from Marble Freedom Trust through his other front groups; he can form new front groups; he can hire his own company to provide services to his front groups—life is good. (Also since publication, a complaint has been filed into potential self-dealing by Leo as he funnels money around his front groups.)

It’s not clear if this benevolence was a billionaire’s pay-off for Leo’s coordinating role in capturing the Supreme Court, or funding to launch new covert endeavors against our country, or an endowment of Leo’s existing fleet of front groups, or a bit of all three. Certainly Leo has become a very rich man in service to his billionaire funders. A $1.6 billion payday gives a good idea of how little even seemingly big money matters to this billionaire elite in their quest for covert power. And it adds emphatic new evidence of the role of very big dark money in the Court’s capture.

Every year that a captured Supreme Court holds back meaningful climate legislation, it protects a pollution subsidy for the fossil fuel industry calculated at over $600 billion per year, as I explain in Chapter One. The Obama Clean Power Plan was blocked by the FedSoc justices back in 2016. Here we are in 2023. Do the math. Even if the Clean Power Plan had been only 10 percent successful against that pollution subsidy, that’s still $60 billion per year in value for seven years: by my math, that’s $420 billion, not counting interest. A $1.6 billion reward to a faithful servant who set up a Court that would deliver those goods suddenly doesn’t seem so big.

Another thing that hasn’t changed much is timidity conditioned by the far right’s faux outrage machine. Treasury and the IRS are still not looking at the tattered corporate veil that I describe between supposedly not-political 501(c)(3)s and supposedly less-than-half political 501(c)(4)s, which often share the same board members, staff members, donors, and even address. Nor are they looking at the spin cycle of donations through multiple affiliated 501(c)(4)s to evade the supposed 50 percent limit.

The Biden Department of Justice shows no sign of looking at the dark-money fraud behind climate denial. By comparison, the Department under President Clinton not only looked at tobacco’s fraud scheme, but brought and won the case! (I am sad to report that the author of that important and powerful decision, the distinguished United States District Judge Gladys Kessler, passed away in the interval between the first printing and this new preface.) President Biden’s commission on the Supreme Court failed to include the dissenting views of Judge Nancy Gertner and Professor Laurence Tribe, who wanted to address these issues, as a published minority view; they had to publish independently in a newspaper. In the first year and more of this administration, the president and vice president each used the term dark money just once, each time buried deep in long formal statements. The Senate has voted on a clean anti-dark-money disclosure bill (full disclosure, it’s my DISCLOSE Act) exactly two times in a decade. Polling shows the public has no idea Democrats are any better on dark money than Republicans, though Republicans are essentially run by dark money and Democrats, though forced to use it, want to root it out (Independents actually trust Republicans slightly more on the issue!).

A last point for this preface is how the Scheme showed the Supreme Court tolerating, even abetting, abnormalities in the travel of certain cases to the Court. A stunning example of right-wing procedural shenanigans occurred in the reproductive rights realm since this book first came out. A Trump federal district judge sat alone in his division in his judicial district in Texas, which meant that litigants who filed there got him for sure, not a judge off a rotating or random choice from a panel of judges. This judge had been an ardent anti-abortion crusader, who’d even hidden some of his writings from the Senate, they were so extreme. So, naturally, anti-abortion advocates picked his district to file a federal complaint against a safe and legal, FDA-approved, abortifacient drug. Unsurprisingly, he tried to impose a national ban on use of the drug. The Scheme chronicles how the Court has let rightwing litigation shops dodge standing issues, draft plaintiffs of convenience, coordinate flotillas of amici, and run a right-wing fast lane to the Court. This court-shopping escapade may too go unregarded. But it’s a powerful signal of how the right wing weaponizes judges when it can, as part of the larger plot to turn courts against America, a plot powered by dark money.

The good news is that Americans have not thrown in the towel. The public is still furious about this dark-money poison. I track polling on this, to help convince other Democrats to strengthen our efforts. I have compiled polling results across many years, by different pollsters, and through multiple crises. Voter concern about corruption via anonymous big money is always off the charts. The most recent poll I’ve seen, conducted for the advocacy group End Citizens United, shows that the anger is not abating: by 79–4, voters would be more likely to support a candidate who wants to pass a ban on dark money influencing elections, and the top danger to democracy is seen as government corruption and the influence of money on our politics.

Jane Mayer is a hero of mine. She managed to get her hands on a recorded conversation between Mitch McConnell’s political minions and the Koch operation’s political minions. In the conversation, they were bemoaning an issue that was kryptonite to them. No amount of messaging spin could cure the problem. The issue was so bad for them, it wasn’t even worth trying to spend money against it. Worse yet, it was equally powerful with liberal and conservative voters. What was the kryptonite problem? Dark money. Voters hate it. Not only do we have all the polling I’ve collected, minions at the dark-money epicenter of the right-wing Death Star confirm the point.

We’ve just had an actual beta test. In the midst of the 2022 Arizona elections, in a purple state with partisanship white hot, a critical Senate race on the line, and a MAGA Republican running for governor (both nail-bitingly close elections) a state referendum against dark money blew through, 72–28—a fearsome blowout in the midst of all the partisan tempest of that election. The consistent polling, the minions’ admissions, and the Arizona results ought to convince Democrats that this issue is a winner.

Dark money is evil, and it is at the root of many other evils, most particularly the Court-capture Scheme that is the subject of this book. It will take a long time and much effort to restore integrity at The Court That Dark Money Built, but the best course now to defend against the mischief of the dark-money creepy-billionaire elite is to get rid of the damned stuff. Root out dark money, and it can be morning again in America. So stay active, stay vocal, stay disgusted, and never, never, never give up.

Introduction

A judiciary independent of the Nation … can turn its guns on those it was meant to defend.

—THOMAS JEFFERSON

THERE IS A SCHEME AFOOT.

If that sounds dramatic, it should. Because it involves a decadeslong effort by a handful of corporate oligarchs to subvert American democracy by capturing the Supreme Court and making it their Court, not our Court. It’s happening right under our noses. And it puts at risk one of our most cherished American principles: equal justice under law.

The Scheme has penetrated deeply into all of our federal courts, but its prize is the Supreme Court. The buck stops, as they say, with the Supreme Court: there is no higher authority that can be appealed to once it has issued a constitutional decision, all roads of review lead to the Court, and escalating gridlock and dysfunction in Congress hamper legislative correction when the Court undoes or rewrites a law. Despite all this power, remarkably, no Supreme Court justice, conservative or liberal, is bound by the judicial code of ethics that constrains all other federal judges.

Because its actions are essentially unreviewable and its members serve for life without having to answer to the public, the Supreme Court has the power to overturn precedent, ignore evidence, and reshape the law, immunized from electoral consequence. In case after case, this is exactly what the Court under Chief Justice John Roberts has done. In literally dozens of partisan decisions that ignore both precedent and principle, the Roberts Court has advanced a far-right agenda that is deeply out of touch with the will of most Americans—unleashing massive amounts of dark money, impeding citizens from voting, allowing corporations to dodge lawsuits and liability, undermining civil rights, and denying individuals access to juries.

The path to this point was not politics as usual. Set aside Mitch McConnell’s unconscionable refusal even to hold a hearing for Merrick Garland, President Obama’s nominee to fill the seat vacated by Justice Scalia’s death. Set aside the troubling non-investigation by the FBI into the allegations about Brett Kavanaugh. Set aside the unseemly and unprecedented rush to fill Justice Ginsburg’s seat while voting in the 2020 election was under way across the country. Those actions were viscerally enraging, but they’re not as sinister as the millions of dollars of dark money that flowed into campaigns and political coffers to secure the confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They’re not as dangerous as President Trump’s public insourcing of a private organization, the Federalist Society—also funded by dark money—to name, vet, and approve his judicial nominees. And they’re not as alarming as the