Jurisprudence

How the Roberts Court Abandoned Bipartisan Consensus

Under the chief justice, 73 decisions have been decided 5–4 along partisan lines. And 73 times, the big Republican donor interest won.

The justices of the Supreme Court
The justices of the Supreme Court, pictured on Nov. 30, 2018.
Mandel Ngan/AFP via Getty Images

On this week’s Amicus, Dahlia Lithwick spoke with Democratic Rhode Island Sen. Sheldon Whitehouse about the current state of the federal judiciary, the problems that come when the Supreme Court makes decisions across partisan lines, and what to make of all the recent 5–4 decisions. Here is a portion of their conversation, edited and condensed for clarity.

Dahlia Lithwick: Are we just surrendered to this?

Sheldon Whitehouse: We’re surrendered to it if we do nothing, but there are things that we can do.

The first thing is to look at patterns on the court. If you try to prove a discrimination case in court, you can bring into evidence patterns. And patterns can be probative of bias, and so patterns matter. What we have done as Democrats is to bemoan the ghastly Citizens United decision, to regret Shelby County’s disassembly of a key part of the Voting Rights Act, to become angry about Janus taking a shot at labor unions. But we’ve not focused on the pattern at the court. And the pattern under Chief Justice Roberts is that they’re now up to 73 5–4 decisions.

Seventy-three of these decisions are marked by a few characteristics: One, it’s 5–4, they haven’t tried to get a real majority, just a bare majority. Two, the 5–4 breaks along partisan lines. And three, there’s a big Republican donor interest at stake. There are 73 of those cases, and 73 for 73, the big Republican donor interest won. And I do think that calling out the emperors as having no clothes might create just a little bit of shame on their part and a little bit of caution about what they are doing to the reputation of the court. So we’ve got to be more analytic and thoughtful about this.

It seems to me that Democrats are in a little bit of a double bind because they still rely on the federal courts to check the worst excesses of Trumpism. And more often than not, I think it’s fair to say the federal courts have unerringly showed up. And so I think there’s a feeling that by attacking the legitimacy of the courts or of the Trump justices or of the Trump appointees generally, you’re undermining the institution of the judiciary itself that Democrats really rely on when all of the other institutions are falling away.

Yeah, it’s tough. And it’s not just Democrats. I mean, every American depends on a judiciary that will give them a fair hearing when their interests are called into court. And because the judiciary is not a branch that has a military or police department or any power to enforce its rulings, it depends on public acceptance and public confidence. So what these five Republican justices have done is to trade on that public confidence and to trade on the public’s hesitancy about criticizing the court in order to advance their agenda under the cover of that protection.

And I think to a point, you kind of have to spot them some cases and say, look, we’re not going to really call them out over just that because there is this important thing of the credibility of the judiciary. But when you get to 73 cases, when you’ve totally turned over the political system so that corrupting special interests have unlimited money to spend, when you’ve endorsed and enabled the surgical targeting of minorities in Southern states to take away their right to vote, when you’ve undone decades of precedent to take a whack at public labor unions, when you’ve done these things that are both big and many, many, many—there comes a time when you simply have to just not be played for a sucker any longer and call the game for what it is.

So, you really made the decision to do that right before the term started. You and four other senators filed a kind of scorcher of an amicus brief in a gun case. It was in some ways less about the Second Amendment and more almost tuning up the court, a warning cry that the court itself is on the hook and it famously concluded: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ”

That was seen as a shot across the bow. It was seen as a very, very aggressive move and of course it caused a hurricane of fury at the National Review and the Wall Street Journal and with Senate Republicans. But it seems to me that what you were doing is essentially saying, look, this public legitimacy is all you have. You referenced this Quinnipiac poll that says that the majority of Americans are feeling pretty wobbly about the court.

Yep.

In effect, it wasn’t a threat to the court. It was saying to the court, you are demonstrably failing to live up to the institutional values that you hold yourselves to, right?

That was the intention. I’m not a party to the underlying case and I’m not directly interested in the outcome of it in any way. But there were so many weird signals about the way in which that case was brought up before the court that it was part and parcel of this larger credibility problem that the court has created for itself, which isn’t just outcomes. But again, it’s how they have gone about their business and how they have allowed anonymous money to surround and bring influence to bear on the court. It’s just a bad setup and the more people look into it, the smellier it looks. And because this particular case had so many of those telltales, we went ahead and filed this brief.

Senator, can you talk for a minute about the things that felt hinky to you about how that gun case came up to the court, and the ways in which it seemed like special interests, in this case the NRA and some big money, were shaping and influencing how that case got there?

Well, let’s focus just on the NRA for a minute. The NRA had spent an enormous amount of money to support Judge Kavanaugh for his confirmation. They had marketed him to their supporters as a pro-gun judge who would “break the tie” and allow the NRA to make political progress in the court. We don’t know the extent to which the NRA influenced Kavanaugh’s selection, because that has been kept secret. But it would be surprising to me if Leonard Leo and his Federalist Society group that tells the Trump administration who should be judges said, “We’re not listening to the NRA about this particular pick.”

Then, the NRA-related group that was the party in the case made, I think, a little slip of the tongue pointing out what they called “the project of the court.” The project of the court is to roll back gun safety regulations and support the firearms industry’s efforts. The court itself had steered away from gun cases for quite a while. And so to pick up this one almost immediately after Kavanaugh got on the court and now could deliver on the NRA’s 5–4 promise, it all just adds to a series of uncomfortable and unpleasant signals.

Are you mad that the Heritage Foundation and the Federalist Society are so, so good and effective at channeling dark money toward effectuating outcomes at the court? Or are you just mad that progressives are so bad at it? I mean, one of the things that is so interesting to me is there is no equivalent Federal Society, there is no equivalent Heritage Foundation. There is no machinery that is analogous. And I wonder if—and a little bit goes to your point about being played for suckers—is the solution here for progressives to get huge money, start pouring it into the court, create a machinery that builds 36-year-old wild-eyed advocates and then there would be parity? Is that the answer?

That’s one answer. It’s not the answer that I would prefer or would propose. What makes me angry is that all of us, Democrats and progressives, have kind of sat this out while the apparatus that you described was developed by the right. And we haven’t called it out. We haven’t systematically called it out. Take a look at the situation right now. United States Supreme Court justices are selected based on a Federalist Society operative, on his recommendations, while the Federalist Society is taking large amounts of dark money from big donor interests. So there’s dark money behind the selection of justices. Then when the selection is made, the confirmation battles for those nominees are fought with dark money. The Judicial Crisis Network took two $17 million–plus contributions, one to push Garland out and Gorsuch in, and one to push Kavanaugh through and onto the court.

There’s every likelihood that the donor in those two $17 million contributions was the same donor, which, if that were true, means that somebody paid $35 million–plus to influence the composition of the United States Supreme Court. And we have no idea who that person is and what their interests are before the court. That’s not a good place to be. If you look at the amicus curiae array, the so-called friends of the court who come in and file briefs hoping to direct the judges what to do, they are crawling with dark money–funded front groups who don’t reveal to the court who the real partying interest is behind the brief.

And very often the actual litigant is a dark money–funded front group that went around the country looking for a plaintiff of convenience in order to bring a case that their technicians tell them would likely lead to advances for the donor interests that fund those organizations. We don’t have anything like that on our side. I think to replicate it isn’t the right way to behave in something as important as this. But, by God, we ought to at least be calling it out. So transparency becomes an incredibly important virtue in and around the court. And I’d add the court doesn’t have an ethics rule for itself, and the court has extremely weak disclosures.

There is a conceivable situation where judges who are selected by dark money interests, confirmed thanks to dark money and political pressure, instructed by dark money amici who are supporting cases brought by dark money fake litigants, are also enjoying the hospitality benefits of the billionaire interests that are behind this operation. And all of that needs to be brought into the daylight so we can clean it up if it is happening, and we can reassure the public that this is just an unfortunate series of coincidences if it’s not happening.

When you are shining a light on this, particularly in the amicus brief from October, you are not talking about court packing, you are not talking about structural judicial reforms. You are talking about simply sunlight and letting everybody know about the pipeline, where the money is coming from, where it is going, how it is affecting outcomes. That’s the extent of what you want to do in terms of your intervention in this kind of lopsided judicial balance, right?

The structural reforms that I have supported I think are very reasonable ones. The Supreme Court should have an ethics code, the Supreme Court should disclose the way legislators and executive officials do the gifts and hospitality and travel that they receive. The court should demand real transparency like we’re trying to get for American shell corporations around the amici curiae and the litigation firms that appear before the court and bring cases before the court. And that kind of transparency I think would be good for everyone.

I also think that the court on its own volition should steer away from 5–4 partisan decisions, just because that doesn’t do the court’s image any good. When the court did Brown v. Board of Education, the great decision that undid segregation in our school systems, they worked very hard to make it a 9–0 decision. The Roberts court is happy to run as far as they can 5–4, and I think that’s a strategic error for the court. It should be more modest about its goals and more inclusive to get bigger majorities.

And last of all, they should stop messing around with the fact-finding that they do. Fact-finding by judges is wrong as a matter of practice. It’s not what they’re supposed to do—the finders of facts are supposed to be the district courts, the trial courts that hear the witnesses and make those findings. And yet, you see these preposterous factual findings like in Shelby County, like, Don’t worry, racism’s over in the South, we don’t need these protections any longer. Or in Citizens United, like, Don’t worry, this money’s all going to be transparent and independent and therefore you’re not going to have to worry about huge dark money expenditures and corruption. Those were the foundational facts upon which those decisions turned and they were both flagrantly false and had no basis in the record and things like that. The court has to stop doing that if it’s going to enhance its credibility.

So Senator, one last question on the courts. You’ve got a bunch of colleagues in the Senate who are now campaigning to be the Democratic presidential nominee. My sense watching the debates has been, with one or two exceptions, that there has been an intolerable amount of “if we don’t talk about it, maybe it will go away.” And I’m just wondering if you could give advice, say, going into the next round of debates about how to talk about something that is both dispiriting and paralyzing. But also, this is possibly the single most essential issue going forward. What’s the way to thread that needle? How do you get Americans who have been asleep at the switch on the issue of the courts and court packing to wake up and prioritize it?

I think the first thing is to highlight the record. Most Americans have no idea that under Chief Justice Roberts, there are 73 of these 5–4 partisan decisions in which there was a big Republican donor interest implicated. And in 73 out of 73, the big Republican donor interest won. I think that’s a piece of evidence that, if we were bringing a discrimination or bias case to a jury, would very compelling to that jury. And the American public is the jury in this conversation, and they’ve got to be shown that evidence so they understand what’s going on.

And then I think for solutions, I know there are people who say that we should enlarge the number of judges on the court. I have not gone there. I think there are plenty of really good solutions that the American people can support quite readily, including the ethics code for the court, the disclosure of the gifts and travel that they’re receiving, the transparency about who’s showing up in court, who’s really behind them, who’s funding them. All of that stuff should be kind of easy for people to agree to. The fact that those things are controversial is yet another signal of the donor interests that don’t want their hands to appear as they influence and manipulate the court.

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