A brief history of the right-wing scheme to corrupt the Supreme Court
A brief history of the right-wing scheme to corrupt the Supreme Court
They bought a majority. And they're getting what they paid for.
“Judges create legitimacy problems for themselves when they don’t act like courts” and “when they instead stray into places that look like politics.” — Justice Elena Kagan
As I discussed in this newsletter a month ago, the federal judiciary is in the midst of an historic crisis of legitimacy. The Supreme Court’s voiding of the reproductive rights of over half the nation’s citizens, followed by the onslaught of revelations regarding Clarence and Ginni Thomas’s sale of Justice Thomas’s seat on the Supreme Court to a hugely wealthy businessperson, is fueling public cynicism toward what was, until recently, the only branch of the government most citizens trusted.
And the nation’s growing distrust of the Supreme Court is well placed. As Justice Kagan diplomatically implied in the quote at the top of this post while warning about judges acting like politicians, the extremists that now control the the nation’s highest court are increasingly giving up even the appearance of “act[ing] like [a] court.” Instead, the Supreme Court’s reactionary supermajority is best understood as a mechanism for imposing the policies favored by a heavily funded cadre of right-wing groups that systematically packed the federal courts.
The money-fueled scheme to rig the nation’s highest court
The devolution of the federal judiciary did not occur by happenstance. Over a period of many years, an interlocking agglomeration of interest groups, largely funded by a small number of hugely wealthy right-wing businesspersons, devoted millions of dollars to systematically pack the federal courts with like-minded ideologues.
In order to reach their goal, the court packers were willing to discard any and all existing norms. For example, then Senate majority leader Mitch McConnell refused even to give Barack Obama’s Supreme Court nominee Merrick Garland a hearing so as to leave the slot open to be filled by a potential future GOP president.
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After Trump was elected, the court packing scheme moved into overdrive. Trump invited Leonard Leo, the longtime head of the Federalist Society (and likewise longtime engineer of the right-wing court packing scheme), into the White House to assist his operatives in picking the most reactionary candidates possible to populate key positions in the federal judiciary.
Among them was Trump’s first pick (for the slot held open by McConnell), Neil Gorsuch. Gorsuch had campaigned for a position on the Supreme Court by arguing in a lower court dissent that a “textual” reading of a federal safety law permitted an employer to fire a trucker for leaving his damaged trailer during subzero weather to avoid dying of hypothermia.
By the time Trump was forced to leave office in the wake of his failed coup attempt, he had installed no fewer than three far-right ideologues on the Supreme Court and added a huge number of similarly extreme right-wing jurists to federal courts across the country. One of Trump’s final additions to the federal judiciary was Justice Amy Coney Barrett, an avowed opponent of reproductive rights. McConnell installed Barrett on the court eight days before Trump lost the 2020 election — in direct contravention of the rationale McConnell had used to prevent Garland from even being considered.
The court packers are now consistently obtaining just the sort of rulings they have long sought from the fully packed Supreme Court, including the nullification of Roe.
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Additionally, many members of the Supreme Court’s right-wing supermajority are doing quite well for themselves, as well as for their sponsors. The Trump Court, as it’s aptly now called, is setting a standard for corruption not seen since the Gilded Age, when it was assumed that most any government official was available for purchase by the plutocrats who ran the country.
The Thomases offer the most blatant example of malfeasance on the contemporary Supreme Court. Clarence Thomas long ago gave up on even attempting to comply with the very limited disclosures that justices are legally obligated to provide, even as he and his wife raked in hundreds of thousands of dollars’ worth of luxury travel, real estate income, and tuition payments from billionaire Harlan Crow. And let’s not forget the streams of income Ginni has taken in from Crow and other right-wing billionaires via various for-profit and supposed “non-profit” enterprises she has created over the years.
Yet the Thomases’ haul is actually dwarfed by that of the Roberts family. The chief justice’s wife made millions of dollars (wholly “legitimately”) by recruiting partners for law firms, some of which have business before the Supreme Court. From 2007 to 2014, Jane Roberts reportedly made about $10 million from this work. Her overall income very likely dwarfs this sum. Ginni must be very jealous.
And then there is Justice Neil Gorsuch, who managed to unload a property he owned with two other partners for nearly $2 million after he became the Leonard Leo/Donald Trump consortium’s first appointee to the Supreme Court. The buyer was the managing partner of a law firm that regularly appears before the Supreme Court. Taking after the court’s most senior justice, Thomas, Gorsuch — who indicated that be made between $250,001 and $500,000 on the deal — somehow forgot to include the identity of the buyer in his publicly filed disclosure forms.
Trump justices are circling the wagons
A recent poll found that six out of ten Americans have little (or no) confidence in the Supreme Court. Another poll found that half the nation believes the justices’ decisions are based on their political views — or, as Justice Kagan puts it, that they are not acting like judges.
One might reasonably expect that the grave decline in the nation’s confidence in its highest court would lead to some soul searching among the court’s right-wing members. But the opposite is true; the court’s extremists, and their allies, are blaming their perceived opponents — who apparently include the public as well as other members of the court — for the disaster they have created.
When the court’s majority opinion overturning Roe v. Wade was leaked, setting off a nationwide furor at the prospect of losing a fundamental civil right, Thomas responded by expressing anger at the nation. The fact that so many Americans had the audacity to express disagreement with the court’s action “bodes ill for a free society,” he said before a judicial conference. Thomas expressed particular ire at young Americans, who, as it happens, have been most critical of the court’s reactionary turn. Thomas suggested that young people’s criticisms of the right-wing supermajority’s decisions reflects a lack of the sort of “respect for the law” shown by “past generations.”
Several weeks ago, the court announced that, after a lengthy inquiry, investigators had been “been unable to identify a person responsible [for the leak of the Dobbs draft opinion] by a preponderance of the evidence.” But, in the wake of the report, Justice Alito announced that he has “a pretty good idea who is responsible” for the leak. He went on to assert that the leaker was not a member of the court’s right-wing flank, necessarily implying that it was one of the three Democratic appointees remaining on the court, or someone who worked for them.
Alito thereby managed to taint a broad swath of individuals solely by innuendo, employing a technique that reeked of the red-baiting Joe McCarthy, who notoriously claimed he had lists of communists embedded in the federal government that he did not name.
But Alito didn’t stop there. Exhibiting a John Grisham level of conspiracism, the justice went on to assert that the purportedly liberal leaker released the draft opinion in the hope that one or more of the justices who intended to join his opinion would be killed before the decision was officially released, thereby preventing the overruling of Roe. Put otherwise, Alito suggested that his own colleagues might be out to get him murdered. This level of paranoid victimology was new even for a justice whose opinions and speeches often seem to have been written by members of Tucker Carlson’s former Fox News staff.
In the past, the court has sometimes stepped away from the brink when its decisions have placed it at odds with most Americans. As discussed in Part I of this series, this occurred most notably in 1936, when the court turned its back on the so-called Lochner era, and ceased attempting to nullify the New Deal regulatory agencies that President Franklin Delano Roosevelt, with the support of the vast majority of voters, established as part of his attempt to wrest the nation from the Great Depression.
But today’s Supreme Court majority clearly couldn’t care less about the opinions of most Americans. Given the extreme anger and resentment from both Thomas and Alito over public reaction to the Dobbs decision, it’s more than reasonable to expect that the Trump Court’s supermajority will continue forward with ever greater urgency to continue the reactionary project that Leonard Leo, the Kochs, the Crow family and others installed them to pursue.
Next step: Dismantle the “regulatory state”
Some observers breathed sighs of relief when the Supreme Court (over the dissents of Thomas and Alito) stayed a ruling of Trump Judge Matthew Kacsmaryk that would have barred the use of the abortion medication mifepristone, based on a claim that the pill was improperly approved by FDA regulators.
As even the most modestly politically astute right-wing justices must have recognized, allowing the lower court’s ruling — which went so far as to suggest that distributing the widely used medication could amount to a crime — to take effect would have led to widespread public defiance, thereby calling into question not only the Supreme Court’s legitimacy, but also its power and authority.
But the billionaires who have invested huge sums to pack the federal courts should not be disheartened. The court’s action in the mifepristone case was no indication that its right-wing supermajority is retreating from the reactionary agenda that Thomas, Alito and their compatriots have long advocated. To the contrary, Chief Justice Roberts, putatively the most “moderate” among the court’s six extremists, has long advocated the principle underlying goal of the right-wing court packers: to dismantle the so-called “administrative state.”
The term “administrative state” is something of a code word for virtually the entire regulatory and associated governmental structure that developed during and following the end of the court’s Lochner era. The most ideologically pure right-wing legal scholars would have the court return to its pre-1936 jurisprudence, during which it issued rulings that would make large swaths of the federal government presumptively unconstitutional.
While Alito and Thomas might be game for such a step, the mifepristone ruling indicates that is not the direction most of the court’s right-wing justices favor. Simply declaring most of the federal government to be unconstitutional would risk defiance not only by the public, but also by the president, thereby potentially making the court into a virtually powerless branch of the government — as it became during the Civil War, when Lincoln openly defied its efforts to read slavery into the Constitution.
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But that does not mean that Roberts and his colleagues are unwilling to go forward with a battle against the administrative state. To the contrary, in cases that (not by happenstance) have received relatively little public attention, the court’s right-wing justices have begun systematically assuming ever broader power to void executive branch actions.
For example, in its 2022 decision in West Virginia v. EPA, the court’s right-wing justices, in an opinion authored by Roberts, adopted a new purported rule of statutory interpretation called the “major questions doctrine.” Under this new judicially created rule, regulatory agencies lack power to issue rules on matters of major economic and political significance without clear and specific authorizing statutory language. Of course, Congress cannot, and often does not even attempt to, provide such specific guidance when it enacts deliberately broad laws, such as the Clean Air Act. In the West Virginia case, the court used its newly invented rule to uphold a challenge to climate-related rules issued by the EPA.
The beauty of this new rule of judicial interpretation, from the right-wing justices’ perspective, is its very vagueness. It is entirely up to the court to decide whether a given regulation concerns a “major question,” and is thereby subject to being judicially nullified.
That, of course, also means that the court’s right-wing majority can uphold regulatory actions it favors on policy grounds, while voiding those that the businesspersons who have long funded the packing of the federal courts oppose. At the same time, the court can employ this elastic new rule to approve of Executive Branch actions that right-wing and business interests favor, as it was particularly wont to do during the Trump administration.
Just days ago, the court announced that it will decide another case that could pave the way for the right-wing supermajority, even more audaciously and cavalierly, to supersede the actions of regulatory agencies. The issue in Loper Bright Enterprises v. Raimondo is whether the court will dispense with the so-called Chevron doctrine, which stands for the common sense proposition that courts should defer to a reasonable agency interpretation of a statute when the matter at issue is not squarely addressed in the underlying law.
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The court’s right-wing has been steadily chipping away at the Chevron rule for some time. But if the principle is entirely discarded next year, it will allow the court to wholly dispense with any pretense of providing deference to agency interpretations of often quite technical statutory provisions. In substance, the court will be appointing itself to be a super-regulatory agency — one that will almost certainly be hospitable to interpretations favored by Harlan Crow and Charles Koch.
As in the case of the major questions doctrine, voiding the Chevron principle will also leave the court’s right-wing supermajority free to approve regulatory actions that are favored by the business interests that installed those justices on the bench. Furthermore, unlike the major questions doctrine — which is putatively limited to regulatory actions that are broad in scope — the nullification of the Chevron rule would leave right-wing judges with the ability to second guess the statutory rationales underlying a broad swath of regulatory actions.
And that prospect, after all, is why Harlan Crow had every reason to be generous to Clarence and Ginni Thomas for all these years, why many law firms were incentivized to pay Jane Roberts huge recruiting fees, and why it made sense for a law firm partner to take that parcel of land off Justice Gorsuch’s hands for a hefty sum. Those and other transactions were simply a cost of doing business as big business takes ownership of one of the three branches of the nation’s government.
The open question is whether the court’s packed right-wing majority can succeed in assuming even more power over the elected branches of the government without losing the minimal level of legitimacy required for it to maintain public respect — and acceptance — of its rulings. As the abortion cases demonstrate, and as some of the right-wing justices (not including Thomas and Alito) appear to recognize, the court is testing the limits of its own legitimacy. Whether it will exceed those limits, and thereby effectively nullify its own power, remains to be seen.