When US Senator Sheldon Whitehouse is extra aggravated with the US Supreme Court, like he was Thursday when it voted 6-3 to limit the Environmental Protection Agency’s ability to reduce carbon emissions from power plants, or last week when it overturned Roe v. Wade and expanded gun rights in separate decisions, he has an idea that he likes to float to his staff.
What if he writes the kind of scathing dissent he’d like to see from the liberal justices on the bench and publishes it online, the kind of “there, I fixed it for you” swipe that is usually reserved for memes on Twitter?
He hasn’t followed through with this fantasy yet — although the last month may have pushed him over the top. But it got me wondering if Whitehouse suffers from FOMO (fear of missing out) over not being part of the country’s high court himself.
“I think it’s moved so far [to the right] that it wouldn’t have mattered,” Whitehouse told me during a Zoom call on Thursday, hours after disclosing that he had tested positive for COVID-19.
There was a time not that long ago that Whitehouse, a graduate of Yale and the University of Virginia School of Law who previously served as a US attorney and Rhode Island attorney general, was considered a potential candidate for the bench.
In fact, then-vice president Joe Biden approached Whitehouse in 2010 to see if he was interested in being on President Obama’s shortlist to replace the retiring justice John Paul Stevens. Whitehouse, who was still in his first term in the Senate, turned him down, and Obama eventually nominated Elena Kagan to the bench.
If everything else played out the same — meaning that Senate Republicans thwarted Obama’s attempt to appoint a successor to Antonin Scalia during the final year of his presidency and President Trump ended up with three Supreme Court appointments in his single term in office — Whitehouse is correct that the court would still be 6-3 in favor of more conservative justices even if he did get confirmed 12 years ago.
Whitehouse joked that his dissenting opinions would be more aggressive than others if he were on the bench, especially when it comes to decisions like the one Thursday that appears to make President Biden’s goal of cutting greenhouse gas emissions in half by the end of the decade nearly impossible.
Even now, Whitehouse maintains that Congress is the right place to be to shine a spotlight on what he sees as “corruption” within the court.
“I think the court’s legitimacy is in free fall, and I worry that they actually don’t know that,” Whitehouse told me.
For years, Whitehouse has railed about how special interests have polluted the courts by spending millions of dollars to advance their causes — and the judges who support them — while attacking judges that are considered more liberal. Case in point: Earlier this year, dark money groups spent millions of dollars on TV ads attempting to paint Ketanji Brown Jackson as a radical lefty leading up to her confirmation to the high court.
Whitehouse has advocated for the Supreme Court to follow the same ethics code that other federal judges are subject to. He thinks they should explain any decisions to recuse from a case, just as a judge from the lower court might have to.
Whitehouse’s quest for at least a little more transparency in the judiciary has led to an ongoing battle with the editorial board of The Wall Street Journal, which has labeled him a conspiracy theorist and accused of him of declaring war on the judiciary.
Too often conservatives write off Whitehouse as someone who wants to change the rules when things don’t go the Democrats’ way.
But one thing you haven’t heard Whitehouse push for is expanding the Supreme Court. He told me that while he’s not ruling out eventually supporting the concept, he isn’t there yet.
He said the Democrats have to come up with an effective argument for expanding the court, and he worries that Republicans will be able use it against them in elections, the same way they have used the Green New Deal.
“The danger of that blowing up in our face is we haven’t made the case to the American public,” Whitehouse said.
For now, Whitehouse believes he’s in the right position to create change.
“In the Senate, we’ve got the ability to solve some of these problems,” he said.