November 30, 2022

Scheme Speech 19: “Operation Higher Court” and the Supreme Court Ethics Crisis

Mr. President, I rise today for the 19th time to discuss the dark money scheme to capture and control our Supreme Court. These themed speeches have covered a lot of ground, and if they have shown one thing, it is that the capture of the Supreme Court didn’t happen overnight. It took years of planning and hundreds of millions in dark money dollars to turn our highest Court into a delivery system for far-right special interests. Slowly but surely, these special interests engulfed our Supreme Court. They set up dark money front groups to help confirm handpicked Justices. They swarmed the Court with flotillas of phony amici curiae to signal to the Justices which way they wanted them to rule. And they built dark money doctrine factories to pump out fringe legal theories for the Justices to deploy, as they have.

Well, it turns out these weren’t the only avenues the right-wing special interests used to influence the Supreme Court. Two weeks ago, the New York Times, building on earlier reporting by Rolling Stone and Politico, reported that during a private dinner with Justice Alito and his wife in 2014, two far-right activists received advance notice about the results of an important reproductive rights case—the Hobby Lobby case. This was not an ordinary social occasion.

Here is what we know: Over more than two decades, a man named Robert Schenck invested more than $30 million in a private far-right campaign to lobby the Supreme Court. According to Schenck himself, the goal of this campaign was to ‘‘embolden the justices’’ to write ‘‘unapologetically conservative opinions,’’ to actually influence the text of opinions. In pursuit of that goal, these activists set up base camp at a building they purchased across the street from the Supreme Court. From there, they slithered into every nook and cranny they could find, getting to know Court employees who could give them special access. To get close to the Justices themselves, Schenck’s operatives gave big donations to the Supreme Court Historical Society, an odd little organization but one that provides high-dollar donors with access to the Justices at private functions.

After meeting the Justices at these events, the operatives then set to work ‘‘emboldening’’ them. They prayed with the Justices in their private chambers. They arranged for the Justices to meet other far-right activists. Most importantly, Schenck himself said, he encouraged his wealthiest donors ‘‘to invite some of the justices to meals, to their vacation homes, or to private clubs.’’ According to Schenck, he ‘‘arranged over the years for about 20 couples to fly to Washington to visit with and entertain’’ Justices Thomas, Alito, and Scalia, the three Justices who, in his words, ‘‘proved amenable’’—‘‘proved amenable’’—to these efforts. I have spoken before in these scheme speeches about Justices’ failures to disclose what they call ‘‘personal hospitality,’’ and we have found no disclosure of these dinners, visits, and vacations.

One couple from Ohio, the Wrights, stood out among the operatives in this plan. This couple not only ‘‘financed numerous expensive dinners’’ with these Justices at what they call DC hotspots, they secured special seats at the Court reserved for guests of Justices Alito and Scalia. They hosted Justice Scalia for hunting trips at their Ohio retreat, and they wined and dined privately all three of these Justices and their spouses. It was apparently at one of these private dinners with Justice Alito that the couple learned about the decision in the pending 2014 case.

The similarities between that alleged leak and the leak of the Dobbs opinion earlier this year aren’t lost on anyone. Both cases involved women’s reproductive rights, and both leaked opinions were written by Justice Alito. But put the leak entirely aside and just look at a plan over 20 years for far-right activists to secretly wine and dine three FedSoc Justices as part of an orchestrated, multimillion-dollar influence campaign. That ain’t nothing. And the only reason we learned about it is because the former lead of the operation decided to fess up. As Slate’s Dahlia Lithwick put it last week, ‘‘[t]he real issue is that the justices allowed this to happen, encouraged [it] and rewarded it.’’

The day after the Alito Dobbs opinion leaked, Chief Justice Roberts directed the Marshal of the Court to investigate, calling the leak ‘‘a singular and egregious breach of trust that is an affront to the Court and the community of public servants who work here.’’ Is a 20-year, $30 million private lobbying operation involving a base of operations, expensive dinners, trips to private retreats, cozying up to Court employees, and potentially another Alito opinion leak not worthy of the same response? Justice Alito denies leaking the results of the 2014 case and says he ‘‘never detected any effort . . . to obtain confidential information to influence anything he did.’’

So let’s shift from the problems with this cozy, multi-decade, multi-million dollar influence scheme to the problems with the Court’s inquiry into it. The first problem is, no inquiry. The statements from the Court that we have seen have been by the Supreme Court’s legal counsel, addressed to Chairman HANK JOHNSON in the House and myself in the Senate. Before the leak stories, Chairman JOHNSON and I had sent a letter to the Court asking it to address this wining-and-dining influence operation and whether any ethics rules were broken.

After the leak story broke, we asked the Court to answer similar questions about that story related to the same operation. The Court’s legal counsel sent two letters in response, one that we received right before the leak story broke and one that came in just a couple of days ago. The first letter omitted to mention a pretty salient fact—the fact that, as we now know, Mr. Schenck had already sent the Chief Justice a letter informing the Court of the influence operation and the leak. They were already on notice. In a nutshell, the Court’s first letter back to us said: ‘‘We have ethics rules.’’ Great. It is nice to have ethics rules. But it did not indicate that any inquiry had been made to determine if those ethics rules were violated. And the second letter gave no sign of inquiry, either, seeming to repeat Justice Alito’s denials from press stories.

There is a reason in ethics investigations in all three branches of government that questions are asked. The reason is that proper questions and answers help get to the truth and that false statements in that investigation can be punished. A Court lawyer fishing quotes out of newspaper stories just isn’t the same thing. It is not an inquiry, not to mention that that response completely ignored the overlay of the $30 million operation and that operation’s use of the Supreme Court Historical Society to arrange private meetings with the Justices. It ignored the contemporaneous evidence that Schenck in fact knew the outcome of the case in advance and had acted at that time on that knowledge.

The letter was a masterwork in cherry-picking, not a proper inquiry. The obvious second problem is that with no inquiry, there is obviously no independent inquiry. Independence is the hallmark of proper inquiry, whether by a prosecutor or an inspector general or a congressional ethics committee. An independent inquiry would likely not overlook the many possible ethics problems raised by a $30 million private judicial lobbying campaign involving big donors courting Republican Justices. One line from this last letter is worth focusing on. Toward the end, the Court lawyer says that ‘‘Justice and Mrs. Alito . . . did not receive any reportable gifts from the Wrights.’’

How does the Court’s lawyer know that? Did he ask Justice Alito? Do they have a record of that conversation? Did he talk to the Wrights? We don’t know the answer to any of these questions because there is no process in place at the Court for conducting these kinds of investigations—no process; no independence; no inquiry. Let’s assume that the substance of the Court’s first letter is true: Yes, the Court has an ethics code. But even if the Court ‘‘has’’ an ethics code, an ethics code without any provision for a complaint to be delivered, without any provision for inquiry, without any process for enforcement, without any independence, and without any ultimate determination ever being arrived at and reported—that is not an ethics code; that is a wall decoration. Congress understood this point more than 40 years ago when it passed a law mandating a process for Federal courts to receive and investigate misconduct complaints against Federal judges. That law just doesn’t apply to the Supreme Court.

So where are we? The Court does not even have a clear place for people to submit ethics complaints. In this case, it took repeated letters from the chairman of Congress’s two courts committees, plus a flurry of stories in the press, to get the Court to respond at all. There is no procedure for how or when or whether the Court conducts ethics investigations, and there is no formal process to report any findings of the nonexistent inquiries. The two essential classes that we recall from law school are civil procedure and criminal procedure. Procedure matters. A Supreme Court Justice once said: Procedure is the bone structure of a democratic society. Procedure is the bone structure of justice, but, forgive me, the Supreme Court is the boneless chicken ranch of judicial ethics. You may remember the Gary Larson ‘‘Far Side’’ cartoon of the boneless chicken ranch. That is what we are up against.

A perfect illustration of this problem occurred when Judge Brett Kavanaugh became Justice Brett Kavanaugh. At the time Kavanaugh was elevated to the Supreme Court, he was the subject of 83 complaints for allegedly perjuring himself and for conduct unbecoming of a Federal judge during his confirmation hearings. A panel had been assigned. An inquiry was underway, independent inquiry, to find facts, to investigate those complaints, and that panel had acknowledged that the allegations were ‘‘serious.’’ But the investigations about Kavanaugh vanished when he was elevated to the Supreme Court. They weren’t concluded. They weren’t resolved. They just ended because, with his appointment, Kavanaugh escaped to the accountability-free zone surrounding the Supreme Court.

The $30 million wining-and-dining campaign is just the tip of the iceberg. There are many unanswered and evidently uninvestigated concerns. We have heard nothing from the Court about whether Justice Thomas violated Federal law by refusing to recuse himself from multiple cases implicating his wife’s attempts to overturn the 2020 election. We have heard nothing from the Court about why the Trump-appointed Justices shouldn’t recuse themselves from cases where dark money organizations that spent millions getting them confirmed show up or why those dark money groups shouldn’t disclose who is behind them when they show up. We have heard nothing from the Court about why Justice Scalia took dozens of vacations seemingly paid for by people with interests before the Court without disclosing those trips to the public under the Court’s disclosure rules. We have heard nothing from the Court about why it is appropriate for Justice Alito to make political statements about world leaders, as he did in Rome earlier this year, or show up at Federalist Society pep rallies.

Now, I know I have been very persistent about this, but I am not alone in this regard. The four recent articles, first, ‘‘The Supreme Court has lost its ethical compass. Can it find one fast?’’ by the respected Ruth Marcus, editorial page, Washington Post editor, second, ‘‘Confidence in the Supreme Court is cratering. It needs to adopt a code of ethics,’’ by the editorial board of the Globe; third, ‘‘The Real Problem With the Second Alleged Leak at the Court,’’ the article by Dahlia Lithwick in Slate; and finally, the respected Linda Greenhouse’s article in the Atlantic magazine, ‘‘WHAT IN THE WORLD HAPPENED TO THE SUPREME COURT?’’.

It is well past time for the Supreme Court to join every other court in the land in adopting a real code of ethics, with procedures that are fair and transparent. Justices should disclose the same gifts and travel that other Federal officials are required to disclose, like in the legislative branch and in the lower courts. And the Court should shine a light on the real interests behind phony amici curiae flotillas that show up there, just like we require lobbyist disclosure. The Justices ought to explain their recusal decisions to the public with a process to help enforce our Federal recusal laws. And the guiding principle in all of this should be a rule so old it is in Latin: Nemo judex in sua causa—no one should be a judge in their own cause.

Is it too late to trust the Court that dark money built to take these steps on its own? Is our Supreme Court too permeated with special interest influence to restore itself? If so, that means it is up to Congress. We can accomplish a lot by passing the bill Congressman HANK JOHNSON and I drafted, the Supreme Court Ethics, Recusal, and Transparency Act. And in the meantime, we will continue to pursue oversight, including oversight of these latest troubling allegations.

The people of the country deserve real answers from Justices we trust to wield the power of the highest Court in the country. We won’t give up until we have those answers. So across the street over there, they had better get used to it.

To be continued. I yield the floor.