Whitehouse says Supreme Court captured by "dark money"

Sen. Sheldon Whitehouse, D-Rhode Island,  said the U.S. Supreme Court is captured by "dark money" from conservative corporate interests resulting in 5-4 majorities that favor business and Republicans over unions, consumers and Democrats.

Rhode Island Senator Sheldon Whitehouse spoke on the influence of corporate “dark money” on the U. S. judicial system especially the Supreme Court. Photo by Marshall H. Cohen
Rhode Island Senator Sheldon Whitehouse spoke on the influence of corporate “dark money” on the U. S. judicial system especially the Supreme Court. Photo by Marshall H. Cohen

Whitehouse, speaking Wednesday at a Newsmakers event at the National Press Club, called for tighter ethics rules for Supreme Court justices and disclosure of major funders of organizations that file briefs with the court.

Whitehouse, a former U.S. Attorney and State Attorney General, singled out the Federalist Society and its executive vice president, Leonard Leo, as the center of an "armada of special-interest influence." He said the society and a network of affiliated organizations have "spent lavishly" with funds from anonymous contributors to change the orientation of the Supreme Court and of federal district and appeals courts as well.  

Leo could not be reached for comment on Whitehouse's remarks, which are similar to statements the senator has made previously in speeches and in an amicus brief to the Supreme Court.   

On its website, the Federalist Society describes itself as an organization of conservatives and libertarians committed to limited government, traditional values, and strict interpretation of "what the law is, not what it should be." The group says it opposes the "orthodox liberal ideology" dominating law schools and much of the legal profession.

Whitehouse contrasted the conservative "judicial activism" of the current Supreme Court with what critics have said was "liberal activism" by previous justices. He said the liberal justices were guided by principle and sought consensus while the conservatives vote in response to "dark money forces" and are willing to push ahead "as soon as this group gets a 5-4 majority."

Since John Roberts became chief justice in 2005, Whitehouse said there have been "a staggering...80 partisan 5-4 decisions...that implicate big Republican donor interests...like protecting corporations from accountability, undermining public regulatory protections, and helping the Republican Party at the polls."  

Although Supreme Court justices report on gifts, travel expenses, and meals they receive, they are not required to do so.  Whitehouse said there are "huge holes in the system, including delays in reporting and definitions." He criticized Justice Brett Kavanaugh, whose confirmation he strenuously opposed, for speaking at a large Federalist Society dinner in Washington last month. Whitehouse accused Kavanagh of "impropriety" for being "involved in fund-raising for a private organization."

Whitehouse has introduced legislation requiring any group that files three or more amicus briefs a year in the Supreme Court or federal appeals courts to publicly disclose all funders over $100,000 or three percent of the group's annual revenue. The covered amicus filers would also be prohibited from making gifts or providing travel to Supreme Court justices or appeals court judges.  

Amicus or friend of the court briefs are filed by non-parties to a case to provide information or advocacy.  They often are cited in Supreme Court opinions.

In his Club appearance, Whitehouse also commented on Democratic efforts to impeach President Trump.  He said it is possible that new evidence or concern for their own political futures may lead some Senate Republicans to vote for impeachment if there is a trial in the Senate.  But this is unlikely, he said, because most Republicans "don't dare cross Donald Trump because they fear one tweet to oblivion and that they will follow (other GOP critics of Trump) to the exit."