March 21, 2024

The Scheme 30: An Update on the Captured Supreme Court

Mr. President, I am here for what is No. 30 in my series of ‘‘Scheme’’ speeches, about the scheme to capture the Supreme Court. And I thought this would be a good time to give sort of a quick overview of where we have been since most of my speeches have been rifle-shot speeches at individual issues that the Court has caused us to have to face up to.

So the fundamental problem here is that we have a Supreme Court that has been captured by rightwing special interests, and we see this in decision after decision after decision. And it is affecting the lives of ordinary Americans all over.

When I say that this is a Court that has been captured by rightwing special interests, what do I mean?

Well, there is considerable research out there and considerable literature out there about a phenomenon that is sometimes called Agency capture, and it is sometimes called regulatory capture. It is the same thing. It is the capture of regulatory Agencies. And you can look it up in your library. You can look it up on the internet, and you can get a sense of the extent to which this is recognized in the economic literature, recognized in the administrative law literature. And it is a frequent avenue, unfortunately, of corruption into government decision making.

And if you want an example to think about, you could imagine a railroad commission whose job is to set rates for the railroad, back in the era of the railroad barons, and the railroad barons have chosen who is on the railroad commission. So the railroad commission isn’t serving the public. It is doing exactly what the railroad barons want. That, in a nutshell, is what ‘‘Agency for regulatory capture’’ is all about.

And one of the things that we have discovered in the course of this is that the effort to capture the Court has been a very expensive effort. This is no small or casual thing. True North Research has done a lot of this research. And so far, they are up to finding $580 million that have been spent on this Court capture operation.

It is not always easy to figure out because the money flows from one place to another through indirect sources and into entities that obscure who the original donor is. It is complicated. But $580 million is a lot of money, and even very, very, very rich rightwing billionaires aren’t going spend that much money on a whim. They are going to spend that kind of money because they are going to get a return on their $580 million investment.

So that is the fundamental problem we are facing—a Court captured by special interests in the same way that, in the old days, Agencies and Commissions were captured. But that technique jumped the rails and was applied to our Supreme Court and with a very, very robust scheme behind it, with at least $580 million spent to accomplish these goals. So there you go.

You have got your captured Court. You have spent your $580 million. But can you really expect the judges that you helped put on the Court to remember exactly what it is they are supposed to do in every case? No. That is pretty hard, even for very bright judges.

So the next thing you have to do is figure out how you get the Court to do what it is told and pass on the message of what it is that you want. You have captured a Court. How are you going to tell it what the outcome is that you want? So this is a Court that is doing what it is told, and the manner in which it is told is actually fairly plain view, in some respects, because what happens is that the dark money billionaires fund groups that file briefs.

And it is not just one brief. They file briefs in little flotillas. Usually the number is 10 or 12. In a case really important to them, we have seen the number get as high as 50. But that is pretty rare. So amici curiae—Latin for ‘‘friends of the court’’— are groups that are allowed to file briefs in the Supreme Court, even though they are not a party to the case. And they come in. And let’s say that there is a dozen of them. They are coordinated. They send the same common message, and that way the Justices who have been put on the Court through this Court capture scheme are kept up to date on precisely what it is that their big donors want.

Now, when I say ‘‘fake amici,’’ I mean that these are groups that don’t very well disclose who is behind them. It doesn’t say: We are here from Koch Industries. We are here from ExxonMobil. It is intermediating groups that have mysterious sounding names.

I will give you one example right here. This is a group of organizations managed by a guy named Leonard Leo, who was basically the fixer—the factotum—of the rightwing billionaires who spent the $580 million to capture the Court. You need an organizer. You need the orchestrator. You need a guy who runs around and does this stuff, and Leonard Leo is the guy.

And he has his own little group up here of companies that report to him and pay him. This is how he gets money out of this scheme. But down here, he has this array of front groups that he and his allies control. So 85 Fund and Concord Fund actually exist. They are corporate entities under Virginia corporate law.

These other entities—Judicial Education Project, Honest Elections Project, Free to Learn, Free to Learn Action, Honest Elections Project Action, and the Judicial Crisis Network— actually don’t exist. What they are, under Virginia law, is fictitious names. That is the legal term for what they are—fictitious names for these entities.

So in one of the cases in which these phony front group amici appeared to tell the captured Justices what it was that their donors wanted, Honest Elections Project filed the brief. It did not identify itself in its brief as being a mere fictitious name. It did not identify itself as being a mere fictitious name of this 85 Fund group. It did not identify that 85 Fund group as a corporate twin to this Concord Fund group. The 85 Fund is what is called a 501(c)(3) group. The Concord Fund is a 501(c)(4) group.

It is customary in political influence operations to have a twin 501(c)(3) and 501(c)(4) sharing office space, sharing personnel, sharing donors, sharing board members. It is very hard to find a corporate veil between the two that is actually real. What they also did not disclose is that the ‘‘Honest Elections Project,’’ as a fictitious name of the 85 Fund, tied it to the Concord Fund, which operates under the fictitious name ‘‘Judicial Crisis Network.’’

It is through this fictitious name that the billionaires spent huge amounts of money on TV advertising to stop the nomination of Judge Merrick Garland to the Supreme Court and to push for the confirmation of Justices Gorsuch and then Kavanaugh and then Barrett under the Supreme Court, with individual checks written to support the campaign as big as $15 million and $17 million.

These are serious people who are writing serious checks to try to have a serious effect on the Court, and they have, but it is hidden. Judicial Crisis Network ran ads for Justices who were reading Honest Elections Project briefs without explaining the connection between the two. So the whole thing is very slippery, and that is why I use the word ‘‘fake’’ about it.

Here is another thing about it. This is the appendix that I added to a brief that I wrote in the Seila Law v. Consumer Financial Protection Bureau case. It shows individual entities that filed amicus briefs in that case, and it showed their funders. If you look at it, it is basically one big blob through which billionaires send money from these entities into these entities.

Donors Trust has really no purpose in life other than to hide the identity of donors. It is an identity laundering machine to give to all of these things so that the Court doesn’t know and the public doesn’t know that, in effect, it is the same people behind this array of front groups. It makes it look like there are a whole bunch of different things. New Civil Liberties Alliance and the Buckeye Institute and the Southeastern Legal Foundation, Pacific Legal Foundation—oh my gosh, they must be from all over the country.

Not so much. They are fund groups for the funders who run money through these outfits to prop up these outfits. So you have your captured Court, and you have your front groups to tell the captured Court what it is to do.

What you end up with is that these fake amici propose a whole lot of factual findings for the Court, and you end up with fake fact-finding. If you look at some of the worst decisions that the Supreme Court has rendered—Citizens United and Shelby County—both of them stood on fake fact-finding. They asserted things to be true that were not true, and those things were essential to the logic of the decision. The Court couldn’t have gotten to the outcome it wanted to get to without those pylons, if you will, of fake fact.

They have opened up a whole new arena for fake fastening with a new so-called history and tradition analysis they brought to bear in Dobbs on reproductive rights cases and in Bruen on gun rights cases, because you can fake your way through history and tradition very easily. You just go back into history, and you cherry-pick the facts you like.

Real historians will come in and say ‘‘Well, that was ridiculous,’’ but it doesn’t matter—you got what you wanted. The ability to do that fake fact-finding is going to get worse, not better. Citizens United and Shelby County are the worst of all. These two decisions have really hammered our democracy—Citizens United by letting unlimited amounts of dark money into our elections.

We are up to $1 billion in dark money now. Don’t tell me those people are spending money just for the sake of the goodness of the country. No. They have specific things they want out of politics, and they are willing to spend $1 billion to get them and ordinary citizens be damned.

Shelby County basically gutted the key enforcement provision of the Voting Rights Act, and a flood of legislation in formerly protected States flowed through, shutting down access to the ballot on behalf of mostly minority voters—in fact, in one case, targeting minority voters with what the Court said was surgical precision. What are we doing about all that? That is a hell of a problem set.

What are we doing to try to get to the bottom of that? Well, we are doing a couple of things. First, we are trying to educate the public. We are trying to let people know what is going on. This is not a normal Court. This is not the way courts ordinarily behave, and this is certainly not the way the Supreme Court should be behaving.

Second, we are trying to investigate, trying to figure out what the heck is going on, to get to the bottom of this mess. How did this happen, and what are the problems?

Third, we are legislating. My bill to clean up the mess at the Supreme Court has cleared the Judiciary Committee, and we are hoping for a vote on that in this Congress. I doubt it will get much support on that side, but I think it is very important to have a recorded vote that shows who is on the side of the billionaires behind the Court capture operation and who would like to have a little bit of clarity and transparency and have Justices meet the same ethics standards that other Federal judges meet. It is not a peculiar standard; it is what is required of other Federal judges.

So the education piece is working tolerably well, I would say. People get it. I think we are down to 18 percent of Americans who have real confidence in the integrity of the Court.

I put a lot of work out there to document what is going on, and if anybody is interested, you can look up my name as an author in the Harvard Law & Policy Review and find my article there. You can look up my article that the American Constitution Society published. You can look up my Harvard Journal on Legislation article. You can look up my Yale Law Journal article.

My most recent one was in the Ohio State Law Journal on this whole scheme of fake fact-finding propping up Supreme Court cases and how they violated the rules of fact-finding in order to violate fact-finding. There is a lot of research out there. These are all publications that get reviewed. They have all been cleared by the publisher, so it is not like I am making crazy stuff up. These have been out there in some cases for years, and everybody who wants to criticize them has had every chance. They seem to have stood up very well on their facts.

What are we doing on investigation? Well, the Finance and Judiciary Committees are looking into the problems with the Court.

Chairman WYDEN of the Finance Committee has developed evidence that the motor coach loan to Justice Thomas was never paid back. In fact, not a dollar of principal was ever paid on that loan. For a period of time, Justice Thomas paid interest to the individual who made the quarter-of-a-million-dollar loan to him, and then he stopped paying interest, and he never paid any principal.

So we are looking into what that means. What does that mean from the point of view of Justice Thomas’s disclosure about gifts and income? What does that mean with respect to his tax filings because under American law, the forgiveness of a debt is income that needs to be declared. Was that done? That is what the investigation is looking to find out.

The second has to do with Harlan Crow’s yacht—also famous from Justice Thomas’s vacations. This is the yacht that took Thomas around Indonesia for 10 days or so in what has been valued at a quarter-of-a-million-dollar vacation. Not bad. Well, it turns out that the Crow yacht has been going around the world declaring itself to be a pleasure yacht in some places and in other places, declaring itself to be a yacht for charter.

Well, the difference between a pleasure yacht and a yacht for charter is that a yacht for charter gets to deduct expenses. Sure enough, it looks like Mr. CROW has deducted $8 million—$8 million—in tax deductions off what he often says and what the boat’s shell corporation often says is just a pleasure yacht. You don’t get to deduct the expense of your pleasure yacht. So it is an important distinction. They say both things, and we are investigating which is true and whether false statements were made.

Then in the Judiciary Committee, under the leadership of Senator DURBIN, we had the authority to obtain subpoenas. We were able to subpoena the shell corporation that owns the yacht. We were able to subpoena the shell corporation that owns the private jet. We were able to subpoena the shell corporation that owns the Adirondack estate where that famous painting was made of Harlan Crow, Justice Thomas, Leonard Leo, and the rest of the little crew hanging out together. So that is all under active investigation, and that is not going to stop, I can assure you.

As I mentioned, the legislation passed the committee. It passed it on July 20, 2023. We are looking forward to having a robust discussion about Supreme Court ethics when this is brought up on the Senate floor for a vote in Congress.

Finally, we have had an interesting set of successes, I guess I would call them, at this point with the Judicial Conference. The Judicial Conference is the body that runs the judicial branch of government. It is its own sort of board of directors. It is made up of the chief judges of all the different circuit courts of appeals and a chief judge from a district court in each circuit. It is a very august body.

Here are some of the things they looked at. They looked at what I call the ‘‘Scalia trick.’’ The ‘‘Scalia trick’’ was to get someone to tell a resort owner to invite Scalia on a free vacation with a personal invitation on the free vacation and then not disclose it as a gift because it was ‘‘personal hospitality.’’ Well, when that was pointed out to the Judicial Conference, they blew that scheme to smithereens because it is obvious that arranging a personal invitation to a resort owned by somebody you don’t even know does not amount to the kind of personal hospitality— like family trips—that is the basis for allowing nondisclosure of big gifts.

The question before them now is, when they did that, was that a clarification of the law or was that a new rule? It took Scalia’s lawyers about a nanosecond to jump in and say: Oh, this is a new rule, and we are going to comply with it. He doesn’t usually talk about this stuff, so you think about, why did the lawyers pop up with that? Well, the reason they popped up with that is they wanted to say it was a new rule because if it was a clarification, which is what the Judicial Conference said it was, they would have to go back and amend all his previous filings that were filed in violation. That would be a fine mess.

So Justice Thomas has a lot at stake in that determination, and that determination is before the Judicial Conference right now. You are looking at this problem of fake amici that I described. They have agreed that the rule is inadequate and that it is not appropriate for parties and the public not to know who is really in the courtroom but to have these masks—these front groups, these fakes—showing up without disclosing who is really behind them.

They are still investigating what I call Thomas-Crow 2.0. There was a first round of billionaire gifts from Harlan Crow to Justice Thomas back in sort of 2009, 2010, 2011 for yacht and jet travel. That was investigated by the Judicial Conference, and then the matter was closed. Then he went back and did it all over again. So they are still investigating the Thomas gifts from Harlan Crow, second round, 2.0.

Then I have asked them to look at something Justice Alito did, which was to offer an opinion in the Wall Street Journal editorial page about a matter that was not only likely to come before the Court but was virtually certainly headed to the Court. He offered an opinion, which is something they say in their confirmation hearings they are not allowed to do, but he did. Worse still, it wasn’t just about some free-range topic; it was about a specific dispute, an ongoing dispute. He took sides in an ongoing dispute. Worse still, he took sides in that ongoing dispute at the behest of a lawyer on the other side in that dispute.

By the way, that lawyer represented his friend Leonard Leo, so there was a personal connection, and the gravamen of the dispute was our ability to find out about free gifts of travel to Justice Alito. So at the end of the day, his improper opinion protected him from public scrutiny for gifts he should not have been receiving.

So all of that is before the Judicial Conference. I want to express my appreciation to the Judicial Conference for their diligence in doing this. Obviously, this is not the way they would like to spend their time, but the Supreme Court has not given them much choice by continuing to engage in all of this bad behavior, and it is all related, and it is all part of the scheme.

I yield the floor.