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Senator Whitehouse: Chapter and verse on how the US Supreme Court was ‘captured’

‘The court has been captured by special interests much in the manner of a 19th-century railroad commission captured by the railroad barons,’ the Rhode Island Democrat says in a Q&A about his new book

US Senator Sheldon Whitehouse questions Assistant Attorney General for the Office of Legal Counsel Christopher Schroeder as he testifies about executive privilege doctrine before the Senate Judiciary Committee's Federal Courts, Oversight, Agency Action and Federal Rights Subcommittee on Capitol Hill on Oct. 18 in Washington, D.C. According Whitehouse, this is the first time the head of the Office of Legal Counsel has testified before Congress in 10 years.Chip Somodevilla/Getty

PROVIDENCE — US Senator Sheldon Whitehouse and Jennifer Mueller have written a book, published on Tuesday, titled “The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court.”

Whitehouse, a Rhode Island Democrat on the Senate Judiciary Committee, spoke to the Globe Thursday about the issues addressed in the book.

The book begins by saying “There is a scheme afoot,” and you acknowledge that sounds alarmist. What do you say to critics who claim you are Chicken Little?

Read the book. I make my case the best I can. I think there is an enormous amount of factual support for my thesis for what has been done. I would add I’ve been saying it a long time, and there has been really no responsible rebuttal. There are efforts to smear me in the right-wing media, but no one sits down and says ‘Here’s why he’s wrong on his theory of the case.’

When US Supreme Court Justice Elena Kagan was at Salve Regina University in September, she said, “When we see the composition of the court change and then the whole legal system being kind of up for grabs and legal rules being reversed here and there, that’s what makes people worry...that something else is going on here other than applying legal principles fairly and consistently.” What do you think is going on with the court?


I think the court has been captured by special interests much in the manner of a 19th-century railroad commission captured by the railroad barons. And as a result, the court is delivering rulings it would not have otherwise delivered that immensely benefit the patrons that put the justices on the court.

Justice Kagan’s comments came days after Chief Justice John G. Roberts Jr. expressed concern that the Supreme Court’s reputation is being unfairly battered, saying, “I don’t understand the connection between opinions people disagree with and the legitimacy of the court.” What’s your response?


There is a big difference between the court making a controversial decision from time to time and what is actually going on. The problem is how the justices got selected, how they got stuffed onto the court by (Senate Minority Leader) Mitch McConnell, and how the pattern of their decision shows fealty to big Republican donor interests on a distressingly predictable basis.

Many Americans focused on the Supreme Court in June when it overturned Roe v. Wade in June. Did you finish the book before that decision came down?

The book had gone to print before (Dobbs v. Jackson Women’s Health Organization) was decided. What Dobbs did was bust into living rooms and doctors’ offices across the country and remove rights women have had for half a century. So it was much more flagrant exercise by the Supreme Court majority of its powers. But there are another 70-plus decisions that are similar in nature in that they overrule precedent, often in contradiction to conservative judicial doctrine and done on a partisan basis. In that sense, Dobbs was flagrant but only one of many dozens of cases of the same ilk.

You say the “scheme” is like Fight Club and the No. 1 rule is not to talk about Fight Club. But who specifically do you believe is behind the “scheme” to capture the courts?

We know the Koch brothers and their robust political operations have been heavily involved. We know that right-wing trusts like the Bradley Foundation have been heavily engaged. We just saw Barre Seid dropped $1.6 billion into Leonard Leo’s operation. Creepy dark money is floating through phony front groups. Leonard Leo operates probably between one and two dozen front groups at any one time.


You trace the roots of the “scheme” back to a 34-page memo written in 1971 at the request of the US Chamber of Commerce. Who wrote it and why was it so consequential?

If you look back to see where political interest might have first gotten the idea that the courts were a good thing to capture, you go back to this memo that a Richmond, Virginia, attorney wrote for the US Chamber of Commerce making a recommendation about how corporate power should be asserted in the American democratic system. One of those was to control the courts because the courts in turn control so much of our society and our economy. What makes that a little more than theory was that Richmond attorney a few months later was confirmed to the US Supreme Court as Mr. Justice Lewis Powell, and he went on to drive brand new corporate political rights into our system.

You say the “fatal blow” came when the 2010 US Supreme Court issued the Citizens United v. FEC ruling. How did that change things?

It changed politics dramatically. You have seen the amount of money, particularly anonymous money, in our elections explode by 100 fold in some cases. You have seen new weird political machinery appear that didn’t used to exist like super-PACS. It has caused a transformation in American political life in favor of billionaire interests, and what is interesting and ironic about that decision is that it actually found that anonymous political money corrupts. That’s why they had to make the factual finding that none of the unlimited political money would be anonymous. We know very well they were flagrantly wrong about that, as billions of dark money indisputably proves.


In your view, what is the reason for all the secrecy?

There are two features of dark money spending: One is you can say filthy and horrible things without any accountability because the group that is spouting your message is a phony and disposable front group. You can throw it away like toilet paper once it has done its dirty work. The second is obscuring who the speaker is deprives voters of knowing what the motives are. If Exxon Mobil or Marathon Petroleum want to spend $10 million against me in an election, and their dirty ads say they’re brought to you by Exxon Mobil and Marathon Petroleum, I might gain votes because Rhode Islanders would get the joke — they’d see what’s going on. But if they spend money through a group called Rhode Islanders for Peace, Puppies and Prosperity, you end up with the ability to have your message separated from your motive. That is a bad place to leave citizens, who are the deciders in our democracy.


How do you respond to the charge that you are not being transparent about the dark money that goes to you and other Democrats?

If football players were allowed to play football with steel pipes and smash each other over the head, it would be really bad for the game. But if one team decided we won’t use steel pipes — we will just let our heads get kicked in — that would be really bad for the game because the outside influence of the steel pipe providers would determine the outcome of the game. Democrats have to live under the rules that Republicans set that let dark money into our elections, but we are also working really hard to clean that mess up and get rid of the Democratic and Republican money alike. It’s Republicans that are, to a person, protecting dark money.

A footnote in the book says, “On a great many occasions, Democrats at many levels failed to fight back or give public warning as the Scheme progressed. It was worse than appeasement; it was acceptance.” Why did Democrats sit on their hands?

It’s extremely, extremely frustrating. I think part of it is that after Brown v. Board of Education, Republicans cared a lot more about judges than Democrats did, and they began building a real apparatus to control judicial appointments. Part of it is the old joke about “I’m not a member of any organized political party, I’m a Democrat.” But it’s frustrating to think we let the public down by not doing our job of whistleblowing and fighting back when there was plenty to work with.

Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him @FitzProv.