[Congressional Record Volume 168, Number 184 (Wednesday, November 30, 2022)]
[Senate]
[Pages S6892-S6894]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I rise today for the 19th time to 
discuss the dark money scheme to capture and control our Supreme Court.
  These themed speeches have covered a lot of ground, and if they have 
shown one thing, it is that the capture of the Supreme Court didn't 
happen overnight. It took years of planning and hundreds of millions in 
dark money dollars to turn our highest Court into a delivery system for 
far-right special interests. Slowly but surely, these special interests 
engulfed our Supreme Court. They set up dark money front groups to help 
confirm handpicked Justices. They swarmed the Court with flotillas of 
phony amici curiae to signal to the Justices which way they

[[Page S6893]]

wanted them to rule. And they built dark money doctrine factories to 
pump out fringe legal theories for the Justices to deploy, as they 
have.
  Well, it turns out these weren't the only avenues the right-wing 
special interests used to influence the Supreme Court. Two weeks ago, 
the New York Times, building on earlier reporting by Rolling Stone and 
Politico, reported that during a private dinner with Justice Alito and 
his wife in 2014, two far-right activists received advance notice about 
the results of an important reproductive rights case--the Hobby Lobby 
case.
  This was not an ordinary social occasion. Here is what we know:
  Over more than two decades, a man named Robert Schenck invested more 
than $30 million in a private far-right campaign to lobby the Supreme 
Court. According to Schenck himself, the goal of this campaign was to 
``embolden the justices'' to write ``unapologetically conservative 
opinions,'' to actually influence the text of opinions.

  In pursuit of that goal, these activists set up base camp at a 
building they purchased across the street from the Supreme Court. From 
there, they slithered into every nook and cranny they could find, 
getting to know Court employees who could give them special access.
  To get close to the Justices themselves, Schenck's operatives gave 
big donations to the Supreme Court Historical Society, an odd little 
organization but one that provides high-dollar donors with access to 
the Justices at private functions. After meeting the Justices at these 
events, the operatives then set to work ``emboldening'' them. They 
prayed with the Justices in their private chambers. They arranged for 
the Justices to meet other far-right activists. Most importantly, 
Schenck himself said, he encouraged his wealthiest donors ``to invite 
some of the justices to meals, to their vacation homes, or to private 
clubs.'' According to Schenck, he ``arranged over the years for about 
20 couples to fly to Washington to visit with and entertain'' Justices 
Thomas, Alito, and Scalia, the three Justices who, in his words, 
``proved amenable''--``proved amenable''--to these efforts.
  I have spoken before in these scheme speeches about Justices' 
failures to disclose what they call ``personal hospitality,'' and we 
have found no disclosure of these dinners, visits, and vacations.
  One couple from Ohio, the Wrights, stood out among the operatives in 
this plan. This couple not only ``financed numerous expensive dinners'' 
with these Justices at what they call DC hotspots, they secured special 
seats at the Court reserved for guests of Justices Alito and Scalia. 
They hosted Justice Scalia for hunting trips at their Ohio retreat, and 
they wined and dined privately all three of these Justices and their 
spouses. It was apparently at one of these private dinners with Justice 
Alito that the couple learned about the decision in the pending 2014 
case.
  The similarities between that alleged leak and the leak of the Dobbs 
opinion earlier this year aren't lost on anyone. Both cases involved 
women's reproductive rights, and both leaked opinions were written by 
Justice Alito.
  But put the leak entirely aside and just look at a plan over 20 years 
for far-right activists to secretly wine and dine three FedSoc Justices 
as part of an orchestrated, multimillion-dollar influence campaign. 
That ain't nothing. And the only reason we learned about it is because 
the former lead of the operation decided to fess up.
  As Slate's Dahlia Lithwick put it last week, ``[t]he real issue is 
that the justices allowed this to happen, encouraged [it] and rewarded 
it.''
  The day after the Alito Dobbs opinion leaked, Chief Justice Roberts 
directed the Marshal of the Court to investigate, calling the leak ``a 
singular and egregious breach of trust that is an affront to the Court 
and the community of public servants who work here.'' Is a 20-year, $30 
million private lobbying operation involving a base of operations, 
expensive dinners, trips to private retreats, cozying up to Court 
employees, and potentially another Alito opinion leak not worthy of the 
same response? Justice Alito denies leaking the results of the 2014 
case and says he ``never detected any effort . . . to obtain 
confidential information to influence anything he did.''
  So let's shift from the problems with this cozy, multidecade, 
multimillion-dollar influence scheme to the problems with the Court's 
inquiry into it.
  The first problem is, no inquiry. The statements from the Court that 
we have seen have been by the Supreme Court's legal counsel, addressed 
to Chairman Hank Johnson in the House and myself in the Senate. Before 
the leak stories, Chairman Johnson and I had sent a letter to the Court 
asking it to address this wining-and-dining influence operation and 
whether any ethics rules were broken. After the leak story broke, we 
asked the Court to answer similar questions about that story related to 
the same operation.
  The Court's legal counsel sent two letters in response, one that we 
received right before the leak story broke and one that came in just a 
couple of days ago.
  The first letter omitted to mention a pretty salient fact--the fact 
that, as we now know, Mr. Schenck had already sent the Chief Justice a 
letter informing the Court of the influence operation and the leak. 
They were already on notice.
  In a nutshell, the Court's first letter back to us said: ``We have 
ethics rules.'' Great. It is nice to have ethics rules. But it did not 
indicate that any inquiry had been made to determine if those ethics 
rules were violated. And the second letter gave no sign of inquiry, 
either, seeming to repeat Justice Alito's denials from press stories.
  There is a reason in ethics investigations in all three branches of 
government that questions are asked. The reason is that proper 
questions and answers help get to the truth and that false statements 
in that investigation can be punished. A Court lawyer fishing quotes 
out of newspaper stories just isn't the same thing. It is not an 
inquiry, not to mention that that response completely ignored the 
overlay of the $30 million operation and that operation's use of the 
Supreme Court Historical Society to arrange private meetings with the 
Justices. It ignored the contemporaneous evidence that Schenck in fact 
knew the outcome of the case in advance and had acted at that time on 
that knowledge. The letter was a masterwork in cherry-picking, not a 
proper inquiry.
  The obvious second problem is that with no inquiry, there is 
obviously no independent inquiry. Independence is the hallmark of 
proper inquiry, whether by a prosecutor or an inspector general or a 
congressional ethics committee. An independent inquiry would likely not 
overlook the many possible ethics problems raised by a $30 million 
private judicial lobbying campaign involving big donors courting 
Republican Justices.

  One line from this last letter is worth focusing on. Toward the end, 
the Court lawyer says that ``Justice and Mrs. Alito . . . did not 
receive any reportable gifts from the Wrights.'' How does the Court's 
lawyer know that? Did he ask Justice Alito? Do they have a record of 
that conversation? Did he talk to the Wrights? We don't know the answer 
to any of these questions because there is no process in place at the 
Court for conducting these kinds of investigations--no process; no 
independence; no inquiry.
  Let's assume that the substance of the Court's first letter is true: 
Yes, the Court has an ethics code. But even if the Court ``has'' an 
ethics code, an ethics code without any provision for a complaint to be 
delivered, without any provision for inquiry, without any process for 
enforcement, without any independence, and without any ultimate 
determination ever being arrived at and reported--that is not an ethics 
code; that is a wall decoration. Congress understood this point more 
than 40 years ago when it passed a law mandating a process for Federal 
courts to receive and investigate misconduct complaints against Federal 
judges. That law just doesn't apply to the Supreme Court.
  So where are we? The Court does not even have a clear place for 
people to submit ethics complaints. In this case, it took repeated 
letters from the chairman of Congress's two courts committees, plus a 
flurry of stories in the press, to get the Court to respond at all. 
There is no procedure for how or when or whether the Court conducts 
ethics investigations, and there is no formal process to report any 
findings of the nonexistent inquiries.

[[Page S6894]]

  The two essential classes that we recall from law school are civil 
procedure and criminal procedure. Procedure matters.
  A Supreme Court Justice once said:

       Procedure is the bone structure of a democratic society.

  Procedure is the bone structure of justice, but, forgive me, the 
Supreme Court is the boneless chicken ranch of judicial ethics. You may 
remember the Gary Larson ``Far Side'' cartoon of the boneless chicken 
ranch. That is what we are up against.
  A perfect illustration of this problem occurred when Judge Brett 
Kavanaugh became Justice Brett Kavanaugh. At the time Kavanaugh was 
elevated to the Supreme Court, he was the subject of 83 complaints for 
allegedly perjuring himself and for conduct unbecoming of a Federal 
judge during his confirmation hearings. A panel had been assigned. An 
inquiry was underway, independent inquiry, to find facts, to 
investigate those complaints, and that panel had acknowledged that the 
allegations were ``serious.'' But the investigations about Kavanaugh 
vanished when he was elevated to the Supreme Court. They weren't 
concluded. They weren't resolved. They just ended because, with his 
appointment, Kavanaugh escaped to the accountability-free zone 
surrounding the Supreme Court.
  The $30 million wining-and-dining campaign is just the tip of the 
iceberg. There are many unanswered and evidently uninvestigated 
concerns.
  We have heard nothing from the Court about whether Justice Thomas 
violated Federal law by refusing to recuse himself from multiple cases 
implicating his wife's attempts to overturn the 2020 election.
  We have heard nothing from the Court about why the Trump-appointed 
Justices shouldn't recuse themselves from cases where dark money 
organizations that spent millions getting them confirmed show up or why 
those dark money groups shouldn't disclose who is behind them when they 
show up.
  We have heard nothing from the Court about why Justice Scalia took 
dozens of vacations seemingly paid for by people with interests before 
the Court without disclosing those trips to the public under the 
Court's disclosure rules.
  We have heard nothing from the Court about why it is appropriate for 
Justice Alito to make political statements about world leaders, as he 
did in Rome earlier this year, or show up at Federalist Society pep 
rallies.
  Now, I know I have been very persistent about this, but I am not 
alone in this regard.
  The four recent articles, first, ``The Supreme Court has lost its 
ethical compass. Can it find one fast?'' by the respected Ruth Marcus, 
editorial page, Washington Post editor, is at https://
www.washingtonpost.com/opinions/2022/11/22/supreme-court-ethics-alito-
ginni-thomas/; second, ``Confidence in the Supreme Court is cratering. 
It needs to adopt a code of ethics,'' by the editorial board of the 
Globe, is at https://www.bostonglobe.com/2022/11/29/opinion/supreme-
court-facing-crisis-confidence-must-be-more-transparent/; third, ``The 
Real Problem With the Second Alleged Leak at the Court,'' the article 
by Dahlia Lithwick in Slate, is at https://slate.com/news-and-politics/
2022/11/alito-leak-hobby-lobby-real-problem.html; and finally, the 
respected Linda Greenhouse's article in the Atlantic magazine, ``WHAT 
IN THE WORLD HAPPENED TO THE SUPREME COURT?'', at https://
www.theatlantic.com/ideas/archive/2022/11/supreme-court-dobbs-
conservative-majority/672089/.
  It is well past time for the Supreme Court to join every other court 
in the land in adopting a real code of ethics, with procedures that are 
fair and transparent. Justices should disclose the same gifts and 
travel that other Federal officials are required to disclose, like in 
the legislative branch and in the lower courts.
  And the Court should shine a light on the real interests behind phony 
amici curiae flotillas that show up there, just like we require 
lobbyist disclosure. The Justices ought to explain their recusal 
decisions to the public with a process to help enforce our Federal 
recusal laws.
  And the guiding principle in all of this should be a rule so old it 
is in Latin: Nemo judex in sua causa--no one should be a judge in their 
own cause.
  Is it too late to trust the Court that dark money built to take these 
steps on its own? Is our Supreme Court too permeated with special 
interest influence to restore itself?
  If so, that means it is up to Congress. We can accomplish a lot by 
passing the bill Congressman Hank Johnson and I drafted, the Supreme 
Court Ethics, Recusal, and Transparency Act. And in the meantime, we 
will continue to pursue oversight, including oversight of these latest 
troubling allegations.
  The people of the country deserve real answers from Justices we trust 
to wield the power of the highest Court in the country. We won't give 
up until we have those answers. So across the street over there, they 
had better get used to it.
  To be continued.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.