Greek mythology tells of the Labors of Hercules, one of which was to clean the Augean Stables. These stables were so fouled with manure and waste that to clean them seemed impossible. Hercules accomplished this Labor by running a river through the stables.
I am here to argue that it is time for a cleanup at the Supreme Court.
Just as the Augean Stables were cleaned by a river, a river of transparency and accountability can help clean up the Court.
Let’s start by looking at the mess that needs cleaning:
The American Constitution Society just vetted and published my analysis of 73 5–4 partisan Supreme Court cases decided for big Republican donor interests under Chief Justice Roberts as of 2018. Thank you to ACS for your important help and careful review.
73 cases is nearly how many cases the Supreme Court decides in a year; so 73 is a lot of decisions, all since Roberts became Chief Justice.
When I call them 73 partisan 5–4 decisions, I mean decisions by the Roberts activist bloc of 5, in which no liberal justice joined.
Shelby County, Heller, Janus, and Citizens United are perhaps the most flagrant examples, but behind those extravagances is a persistent pattern, telling and the pattern has a theme: big Republican donor interests win. Every time.
So much for the “Balls and Strikes” that Roberts promised to call.
Let me be more specific about what I mean by wins for Republican donor interests. They fall into four categories.
Category 1. is Helping Republicans win at the polls. Into this category fall decisions failing to address partisan gerrymandering, decisions opening up voter suppression (Shelby County), decisions seeking to gut Democratic-aligned labor unions (Janus), and decisions opening up our politics to unlimited special interest political spending, creating the flood of dark money that now poisons our politics. (Citizens United, as bad as Lochner.)
Category 2. is the armada of decisions, too many to mention, protecting corporations from accountability, both before regulatory agencies and before courts and juries. They come at this from many angles, but one flagship in the corporate protection armada is the Roberts 5’s encouragement of forced arbitration, most recently the partisan 5–4 decision in Lamps Plus.
Let me interpose here what a big deal juries were to the Founders of our Republic. Protecting the civil jury was a casus belli of the Revolution, and the Seventh Amendment was insisted upon in the Bill of Rights. As Blackstone himself said, the jury is the institution designed to protect us all from “the more powerful and wealthy citizens” like big corporations. We degrade this institution at our peril. Protecting corporations from juries has a high price.
Category 3 is undermining civil rights: particularly gender, age, and race discrimination; and particularly where the offender is a corporation.
And last, Category 4: the Republican donor trifecta of guns, religion, and abortion.
The grand total is 73 wins in these four categories, all 5–4, all by what I call the Roberts 5.
Bad enough as a pattern, and telling as a pattern, but as they say on TV, “wait, there’s more.”
In reaching these outcomes, in a majority of these cases, the Roberts 5 violated conservative judicial doctrines. Let me clear: this 73 case romp was done not because of conservative judicial doctrine, but despite conservative judicial doctrine. The doctrines violated are:
Stare decisis (Alito: applied “when it suits our purposes”);
Appellate fact-finding (Shelby/Citizens);
Federalism (formerly known as states’ rights);
Respect for our legislative process and findings;
Judicial modesty, and tellingly;
Even that conservative classic, “originalism.”
All these doctrines have been run right over in that series of 73 5–4 partisan decisions?—?more than half of the time, indeed. In the most notorious decisions?—?Shelby County, Heller, Janus, and Citizens United?—?there were multiple violations of those supposedly conservative judicial principles.
Tells you something, doesn’t it?
So we not only have a partisan pattern of big partisan wins delivered 5–4; we have conservative judicial doctrines lying mangled in that pattern’s wake, undermining any jurisprudential legitimacy of that pattern.
Bad enough? “Wait, there’s even more.”
This is not happening in a vacuum. Big Republican donor interests are at work all around the Court, and much of their work is hidden from the public. We must shed light here.
The big influencers are hiding behind dark money channels, and a lot of transparency is needed so that we can fully understand what’s going on in the stables.
It begins with special interest influence in selecting justices for appointment to the Court. This is the territory of the Federalist Society. As the White House counsel conceded, the Trump administration has “insourced” Leonard Leo of the Federalist Society to choose nominees. The Federalist Society gets lots of dark money, and its disclosure of this is terrible. Its disclosure of the linkage between big contributions and picking nominees is even worse.
Let me be clear here that the recruiting and convening function of Federalist Societies in law schools, I do not contest; nor do I contest its think tank work. But it is wrong?—?it is seriously wrong?—?to let big donor interests secretly control the selection of our federal bench.
Then, once the big donor interests have selected nominees through the insourced Federalist Society process, the big donor interests begin campaigning for their selected nominees. They do this through another dark money group called the Judicial Crisis Network.
One unknown donor?—?just one?—?gave the Judicial Crisis Network $17.9 million. We have no idea who that is, or what understandings were reached with that donor. But it is disgraceful, and we need to identify those influencers funding the campaign effort.
And then, once the nominees they have selected and campaigned for are safely on the court, they start signaling to them. They signal their wishes through amici curiae who, like the Federalist Society and the Judicial Crisis Network, are funded by dark money. I will come back to that.
Finally, we need to understand what these big Republican donor interests are providing to the Roberts 5 by way of social entertainments. We know about hunting parties at luxury ranches organized through the secretive St. Hubertus club. We know about fishing trips at a billionaire’s ranches. We know that both Scalia and Alito made appearances at the high-end billionaire Koch retreat. But the disclosures the Justices must make are few, and the Justices are not subject to judicial ethics rules, so we don’t know how bad this may be. Way more transparency is needed.
Let’s go back to the amici: who are they, and who are they representing? We don’t know. Many are front groups who have no business, practice no profession, and create no product. Who is behind them? Who are they fronting for? The disclosure is terrible. Supreme Court Rule 37.6 only covers the preparation, printing, and submission of the brief itself, not who the real funders are, or what they stand to gain. We should apply the standards of the DISCLOSE Act to amici curiae, and I am filing a bill to change that rule.
Transparency becomes even more important when you look at the win rates of some of these amici. Two examples: The front group for big Republican donor interests that calls itself the U.S. Chamber of Commerce had a 90% win rate in the Supreme Court 2017–2018 term. On the DC Circuit, then-Judge Kavanaugh gave “conservative” amici a 91% win rate. Kavanaugh just said he owes his allegiance to the Constitution. The numbers tell a different story.
One last signal: how touchy they are. My inquiries in this area earned me a long-form editorial?—?dedicated entirely to li’l ol’ me?—?by that corporate big-donor mouthpiece, the Wall Street Journal editorial page.
It’s a badge of honor, but it’s also a signal that we have struck a nerve. Which in turn means: dig more. Expose the front-group amici who surround the Court and so often have their way.
Each of these problems on its own is bad enough, but now put the whole mess together.
Ina worst case scenario?—?a scenario which the evidence as we know it presently supports?—?a few Big Republican donor interests are:
Selecting the nominees, from behind a dark money screen;
Paying for confirmation campaigns, from behind a dark money screen;
Signaling to the Court through amici, from behind a dark money screen;
Likely entertaining and socializing with the Justices themselves;
And then scoring big wins in 73 partisan 5–4 decisions.
We cannot let this go on.
1. Call this out:
Emperor has no Clothes, and we have to say it.
Recognize that we are badly out-communicated.
Who knows of 73 partisan 5–4 decisions?
Fact-finding in Shelby/Citizens?
“Principles” violated?
Write something; get engaged.
2. Clean this up:
Who funds FedSoc selection operation?
Who funds confirmation campaigns?
Who gave $17.9 million?
Amend 37.6?—?Real transparency for “friends of the court”
Judges’ schedules
We have always been reticent to critique the Court this way.
They have taken advantage of our reticence.
Time to speak up. Time to clean up. Time for a cleaning river of transparency. Time to restore the Court to the high standards it owes to the American people and to the Constitution.
