- Sen. Sheldon Whitehouse is fighting to end the "dark money" that he says is plaguing the Supreme Court.
- The Rhode Island Democrat is referring to private groups using anonymous donations to advance their interests at the highest court.
- Whitehouse spoke with Insider in a recent interview to discuss his views.
For the ninth time this year, Sen. Sheldon Whitehouse gave a speech this week blasting right-wing anonymous donors whom he believes have "captured" the Supreme Court and "built" its current 6-3 conservative majority.
"Our Supreme Court is awash in dark money influence," the Rhode Island Democrat said on the Senate floor on Tuesday. "The American people may not be able to see all of the rot, but they can see enough to know that something is rotten over there across First Street at that court."
Unlike some members of his party, Whitehouse has steered clear of reform ideas such as adding more seats to the bench or setting term limits for justices. Instead, the three-term senator has been vehemently pushing for financial transparency in the third branch of government to expose how it's been influenced by a far-right conservative agenda.
Whitehouse, who chairs a key panel on the Senate Judiciary Committee, calls it a three-fold "scheme" — private groups use anonymous donations to groom Supreme Court candidates, promote and defend these nominees with political ad campaigns and later try to influence these justices in legal briefs filed without any financial disclosures.
"If it's the same people who paid for all of it, particularly if they're the same people who are funding politicians, then it becomes not just a problem, but potentially toxic," Whitehouse, 66, said in a recent interview with Insider.
According to the senator's findings, the effect of this operation is being played out during Supreme Court Chief Justice John Roberts' tenure, which has handed down at least 80 partisan decisions that advance conservative interests.
"It's a terrible record," Whitehouse said.
When Whitehouse began investigating the matter years ago, he "had a general sense that things had gone off the rails" at the Supreme Court and wanted to do research to show "how big, special interests hiding behind dark money had been able to exert their power," he told Insider.
In a report published last year by the Harvard Journal on Legislation, Whitehouse laid out his evidence of the dark money trail by pointing to major Supreme Court decisions that delivered wins to conservatives. Those rulings included allowing unlimited corporate spending on political campaigns, reversing the rights of labor unions, and weakening voting rights.
The trend is only continuing, according to Whitehouse. What he finds most troubling is an increase in the number of legal briefs, known as amicus briefs, that are filed without any financial disclosure to convince the justices to rule a certain way.
"The rule of the court purports to say that you can't hide behind a front group. There's almost no other situation in court where somebody is allowed to come in and not identify themselves, and yet there is conspicuous non-enforcement of that rule, and it deprives the public of seeing the coordination among the phony front groups," Whitehouse said, adding that he doesn't "understand why the court doesn't clean that up itself."
In the current term, hundreds of briefs tied to a slew of contentious cases have been filed to the Supreme Court. One highly-watched case, concerning a Mississippi law that bans abortion after 15 weeks of pregnancy, has attracted dozens of briefs that express support for or opposition to the law.
"We're seeing in real time this vector of anonymous influence deploying in enormous numbers on these political cases and that's just a rotten site for a court to present to the country," Whitehouse said.
Democrats have glossed over the Supreme Court
How conservatives have come to have greater control over the Supreme Court, and the federal judiciary as a whole, comes years in the making, experts say.
For decades, Republicans have eyed the courts as a method to uphold their political power, building a conservative lawyers and judges and empowering conservative groups like the Federalist Society. Using this backbone, former President Donald Trump filled more than 200 court seats with conservatives.
"They focused on the least democratic branch, the one that doesn't respond to voters, the one that could impose its will from behind ropes, as the vehicle for getting their ideology imposed on the American people," according to Whitehouse.
Still, Whitehouse acknowledges that at the same time Republicans cultivated this strategy, Democrats just weren't paying enough attention.
"Democrats have been overlooking the Supreme Court for a long time and are now getting a wake-up call," he said.
Though the senator claims the court is presently fueled by conservative dark money groups, anonymous political donations indeed go both ways. Democrats actually drew in more funding from dark money than Republicans in the 2020 election cycle, according to OpenSecrets.
And now Democrats, who are in the majority, have control over the judicial confirmation process. So far in his tenure, President Joe Biden has appointed 28 federal judges.
Whitehouse weighed in on the partisan reality and told Insider that ultimately, "whatever rule we should impose to clean up this mess should apply completely irrespective of party or point of view."
Americans have caught sight of the politics that surround the Supreme Court and have formed negative impressions of the institution. A new Quinnipiac University poll released Friday found that more than 6 in 10 Americans say the Supreme Court is motivated primarily by politics. That comes on the heels of all-time low public approval ratings of the Supreme Court with some justices speaking publicly in recent months to try and restore the public's faith.
"It's one of the things that really tears at me because on the one hand, the best thing for this country would be a United States Supreme Court that everybody had confidence in and was proud of, and that was seen to be staying in its proper lanes," Whitehouse said. "But on the other hand, once it becomes evident, as it is to me, that the emperor has no clothes here, it's just as important to call it out because a court that is masquerading as a regular court, but is actually a captured vehicle for big, special interests, is the most dangerous."
'They're just trying to shut me up'
Whitehouse has been pursuing multiple avenues to overhaul the system. He's attempted to advance legislation that would enhance financial transparency in the government and the courts, yet little progress has been made. A bill he wrote to tackle the issue was included in the Democrats' voting and elections legislation, but Republicans blocked it last month.
Besides Congress, Whitehouse has also called on the White House to examine the role of dark money at the Supreme Court. This week, he and three Democratic lawmakers wrote a letter to Biden's Supreme Court commission to do just that, after the group released a draft report last month that failed to touch on the topic.
"It just doesn't make any sense," Whitehouse said. "The fact that they couldn't even grapple with that issue was hard to accept."
There are also some areas that the Supreme Court can easily address itself, including establishing ethics codes for the justices, providing financial disclosures of amicus briefs, and reporting about gifts and hospitality the justices receive, according to Whitehouse.
Critics have slammed Whitehouse's views on the nation's highest court as disrespectful and mistaken, with some condemning them as conspiracy theories or myths. Others have said that Whitehouse just wants to rewrite the rules because the court is not making decisions to his liking.
The Wall Street Journal editorial board wrote in March that Whitehouse's quest has been "undermining judicial independence and restricting the First Amendment rights of private citizens to influence their government."
During testimony at a committee hearing chaired by Whitehouse that same month, a legal expert reiterated those points, and argued that the recent trend of Supreme Court decisions aren't a consequence of right-wing influence, but a consequence of the justices' judicial philosophies.
"Rather than address the substance of their decisions on the merits or, where applicable, seek reform of the relevant laws at issue in contested court decisions, the Supreme Court's critics prefer to demonize the justices and imply nefarious motivations," Jonathan Adler, law professor at Case Western Reserve University, said.
Often the lone member of Congress regularly vocalizing the "scheme," Whitehouse stands firm in his beliefs and vows to continue to promote and fight for them.
"The issue that I have with a lot of the counterattack is that it's just name-calling that fails to address the problems that I've identified," Whitehouse said. "When I see that, that really only confirms my view that they can't defend what they've done. They're just trying to shut me up."
"Why would they want to do that if they weren't trying to protect a court that they'd captured?" he added.