July 12, 2023

The Scheme 22: Justice Alito and the Polluter Page

Mr. President, I rise this evening, now for the 22nd time, to keep unmasking the far-right scheme to capture and control our Supreme Court. This scheme is funded by creepy rightwing billionaires who stay out of the limelight and let others— namely, Leonard Leo and his crew—operate their scheme. How are they benefiting from the scheme? It is hard to track which rightwing billionaires are involved— and that is by design—but thanks to intrepid reporting from ProPublica and others, we are learning more all the time. And every day it becomes harder for the billionaire-friendly Justices and their political allies to pretend, with a straight face, that all is kosher at the Court.

I have previously described the noxious cocktail of this court capture scheme: creepy rightwing billionaires, phony front groups, amenable Justices, large sums of money, and secrecy. I don’t know whether they take that shaken or stirred, but those seem to be the common ingredients. To chill that Court-capture cocktail, we can add one more ingredient: Alaskan glacier ice. But I will get back to that later.

First, let’s review the origin story of Justice Samuel Alito. It begins with the bipartisan Senate rejection of Judge Robert Bork, which infuriated Bork’s far-right backers. On the Court were Justices Souter and Stevens— both Republican appointees—but they wouldn’t help the billionaires, so the angry chant went out from the far right: No more Souters. No more Stevenses. Then President George W. Bush got an appointment and nominated his friend and trusted White House counsel, Harriet Miers. A Republican President nominates a personal friend and rock-ribbed conservative Republican— a woman to replace Sandra Day O’Connor. And the attack on her comes from the right.

The far-right billionaires won’t have it. And their operative—the aforementioned Leonard Leo—oversaw the project of taking her down. And in her place came the ever-so-reliably billionaire-friendly Sam Alito. This switch—Miers for Alito—gave Leo immense cred with the billionaires, who have since made him a very rich man and helped him launch his armada of front groups, of which this array is just a selection.

These three groups are the groups from which he takes revenue for himself and through which he manages these two groups, a coordinated 501(c)(3) and 501(c)(4). That is sort of the latest and greatest technique in dark money political manipulation, a conjoined 501(c)(3) and 501(c)(4)—usually, common offices, common staff, common funders, common mail drop, all of that. Around this common core are what are called fictitious names. That is the name for it under Virginia law. So 85 Fund is also the Judicial Education Project under a fictitious name. It is also the Honest Elections Project under a fictitious name. It is also the Free to Learn under a fictitious name. Concord Fund is also Judicial Crisis Network under a fictitious name, Honest Elections Project Action under a fictitious name, and Free to Learn Action under a fictitious name. That is quite a lot of confusion, and it is designed to be confusing.

Scroll on to 2021. By that time, I had been calling out obvious issues at the Supreme Court: published articles, delivered speeches, wrote law reviews, even wrote a book. Alito, speaking at the University of Notre Dame, bemoaned what he said were ‘‘unprecedented efforts to intimidate the Court.’’ He went on to say that the media was suggesting that ‘‘a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view.’’ That, of course, referred to the sudden surge under Trump in the Court’s use of its ‘‘shadow docket’’ to quickly change the law without hearing full public arguments. Alito’s speech then was considered a pretty extraordinary airing of grievance by a Supreme Court Justice.

In response, I wrote an op-ed explaining that Justice Alito had participated in a pattern of decisions, among them the shadow docket ruling leaving in place—pre-Dobbs—Texas’s ‘‘bountyhunter’’ anti-abortion law—a pattern of big wins for big rightwing donors with little regard for fact or precedent. I argued that Americans’ perception that the Court lacks independence and the resulting drop in approval isn’t some leftwing figment. The evidence showed a clear pattern: When big rightwing donor interests came before the Court, the Federalist Society Justices on the Court would regularly trample precedent and contort the facts and the law to deliver the donors’ political victories—not a figment, a pattern.

Then, of course, came the Dobbs case, which actually took away a constitutional right from women. For five decades, women had the right to choose when to have children. That constitutional right appeared safely protected in Supreme Court precedent. Then, from a list mysteriously prepared by Leonard Leo and the Federalist Society, President Trump appointed three Justices to the Court. Now, I say ‘‘mysteriously’’ because the Federalist Society, evidently, never had any formal proceedings to develop any list, but it offered no correction when Trump kept calling it his Federalist Society list.

Well, the next thing you know, that constitutional right was taken away by Justices who, in their confirmation hearings, had told the American public and the Senate Judiciary Committee that Roe was settled law—settled, that is, until they had the votes to unsettle it and make up their own. As Justice Elena Kagan observed: “If there is a new member of a court and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown, are being replaced, then people have a right to say: What’s going on there? That doesn’t seem very lawlike.”

And she was right. Years after he had assured us Roe was settled law, it was Justice Alito who wrote the decision in Dobbs. Alito’s draft opinion infamously leaked well ahead of the decision, causing rampant speculation about who leaked the opinion and why. Chief Justice Roberts directed the Marshal to investigate, interviewing clerks and Court staff and even searching employees’ personal phone records. But with the Justices, the Marshal undertook some other, also mysterious, iterative process, and the investigation proved inconclusive.

Curiously, days before the opinion leaked, the Wall Street Journal editorial page had predicted the Dobbs decision, raising the suggestion that someone had a source in the Court. The editorial correctly predicted what Alito knew: that Alito would write the decision for the majority so long as Chief Justice Roberts couldn’t pull another Justice to join a more moderate, middle-ground decision.

Then, this past April, Justice Alito was featured in a highly sympathetic interview on the Wall Street Journal editorial page. Alito spoke about his opinion’s leak and said: “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody.”

Any major newspaper would have put an exclusive interview with a Supreme Court Justice on the front page, but it would then have been subject to factchecking. This opinion piece looked like an article, but it appeared in the Journal’s notoriously fast-and-loose-with-the-facts opinion section under a double byline. One was a Wall Street Journal editorial staffer, and the other was David Rivkin, a rightwing lawyer who represented the States challenging the EPA’s Clean Power Plan before the Supreme Court.

A quick detour about the Wall Street Journal editorial page’s ties to the rightwing ecosystem: Rightwing bizarro-land likes to ape the legitimate world. In the legitimate world, there is a Pulitzer Prize, so rightwing bizarroland has its own Bradley Prize, which— guess what—has provided hefty prize money to several Wall Street Journal editorial page writers, a million dollars cash in all.

This editorial piece quotes Alito saying: “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us.” In the piece, Justice Alito declined to talk about the Clarence Thomas ethics problems reported by ProPublica: extravagant vacations worth as much as $500,000, paid for by rightwing billionaire megadonor Harlan Crow and not disclosed. That report was later followed by an additional ProPublica story detailing the billionaire’s purchase of properties from Justice Thomas and his family members, also not properly disclosed, and payments for years of tuition for the Justice’s grandnephew whom the Thomases were raising, also not disclosed.

Justice Alito’s silence on the Thomas bombshell became all the more notable when, 2 months later, ProPublica published another bombshell—this one about Justice Alito—same cocktail ingredients. In this case, a rightwing billionaire, an amenable Justice, undisclosed private jet travel, an exotic vacation—all very expensive, all secret. Justice Alito’s private jet travel to this all-expenses-paid Alaskan fishing vacation was paid for by a hedge fund billionaire, Paul Singer, who contributed over $80 million to Republican political organizations and whose Elliott Management group is one of the largest donors to the National Republican Senatorial Committee. This is a politically involved rightwing billionaire. Later, the billionaire’s firm had business before the Court and, in that case, won billions of dollars—no disclosure by Alito, no recusal.

Charles Geyh, an Indiana University law professor and leading expert on recusals, had this to say: “If you were good friends, what were you doing ruling on his case? And if you weren’t good friends, what were you doing accepting this?”

But wait. There is more. The tab for Alito’s stay at the salmon lodge in Alaska was covered by a different billionaire. If you are keeping score, we are now up to three billionaires. This one is named Robert Arkley, and hefunded the launch of Leonard Leo’s advocacy group the Judicial Crisis Network, also heavily engaged in rightwing political influence focused on the Court. Leo, the operative behind the current rightwing Supreme Court supermajority, not only organized Alito’s trip, he gallivanted off to Alaska with the Justice and the billionaires. By my count, after yet another story about Justice Thomas, we are now up to six rightwing billionaires attending to the care and feeding of two Justices: Thomas and Alito. And there are all sorts of links among them and with the ubiquitous Leonard Leo. So many Justices, so many billionaires, so many gifts. But there is even more.

Alito was not the first Justice to stay at this particular lodge. Justice Scalia also took a private jet to the lodge, courtesy of billionaire Arkley, and also did not disclose the gift. In one memorable bit of color from that ProPublica story, Scalia was described as mixing martinis made with ice chipped off of a glacier. There. You thought I had forgotten that, but I didn’t.

The evening before the Alito billionaire travel story ran, the Wall Street Journal comes back into the picture again. Alito tried to preempt ProPublica’s reporting by taking to the Wall Street Journal editorial page. In the op-ed, Alito argued that he didn’t need to disclose the private jet travel under Federal law because the private jet should be considered a ‘‘facility’’ and that his seat on the private jet would have otherwise been empty so it was free and there was no gift. I won’t go into how laughable these arguments are. That is a separate case. What is important is that these arguments were printed on the Wall Street Journal editorial page without investigation or comment by the page, taken at face value. Oh, and, by the way, the cost of that charter—the private jet travel would have cost over $100,000 each way.

In that Wall Street Journal editorial page piece from the spring, Alito had said about the Court’s collapsing approval: “Well, yeah, what do you expect when you’re—day in and day out—‘‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’’?”

Justice Alito’s complaining has it completely backward. The problem is not that Americans are pointing out the ethical lapses at the Supreme Court. The problem is the ethical lapses at the Supreme Court. The Roberts Court Justices’ behavior is crashing public trust in the institution—and justifiably—first, with preposterous judicial behavior that no other judge would indulge; second, with outrageous violations of quite clear rules and procedures judges are supposed to follow about reporting those gifts; third, with preposterous excuses for the bad behavior and the reporting violations; and fourth, with no process to ever even try to get to the truth to establish the facts. It is a mess.

Ideally, the Justices would start fixing that mess on their own. The Court and the Judicial Conference, which Roberts chairs, have the ability to fix this, but so far, they won’t. I suspect there is a lot more to be found out about this mess, and they don’t want those further disclosures so they would just as soon pull a rug over the whole thing, but that won’t work. Congress also has the ability to write ethics rules for the Justices. Remember, Congress created the judges’ financial disclosure requirements in the Ethics in Government Act. And Congress created the judicial recusal law, which the Justices are also required to follow. And Congress created the Judicial Conference, which administers financial disclosure and code of conduct matters. Clearly, the article I legislative branch can legislate in this area. Clearly, we can oversee Agencies that we have created and laws that we have passed, and indeed we have for decades.

In the coming days, the Senate Judiciary Committee will mark up my Supreme Court Ethics, Recusal, and Transparency Act. This is a very important step forward in this process, and I thank Chairman DURBIN for his leadership. This bill would put basic ethics guardrails and transparency measures in place to help ensure the American people that they can get a fair shot at the Supreme Court, even if they don’t have a private jet. Today, in the Court that dark money built, the honor system has flagrantly failed. We need to legislate; we need to investigate; and we need to fix this mess for the American people.

To be continued, Mr. President. I yield the floor.