[Congressional Record Volume 169, Number 119 (Wednesday, July 12, 2023)]
[Senate]
[Pages S2352-S2354]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I rise this evening, now for the 22nd 
time, to keep unmasking the far-right scheme to capture and control our 
Supreme Court. This scheme is funded by creepy rightwing billionaires 
who stay out of the limelight and let others--namely, Leonard Leo and 
his crew--operate their scheme.
  How are they benefiting from the scheme? It is hard to track which 
rightwing billionaires are involved--and that is by design--but thanks 
to intrepid reporting from ProPublica and others, we are learning more 
all the time. And every day it becomes harder for the billionaire-
friendly Justices and their political allies to pretend, with a 
straight face, that all is kosher at the Court.

  I have previously described the noxious cocktail of this court 
capture scheme: creepy rightwing billionaires, phony front groups, 
amenable Justices, large sums of money, and secrecy. I don't know 
whether they take that shaken or stirred, but those seem to be the 
common ingredients.
  To chill that Court-capture cocktail, we can add one more ingredient: 
Alaskan glacier ice. But I will get back to that later.
  First, let's review the origin story of Justice Samuel Alito. It 
begins with the bipartisan Senate rejection of Judge Robert Bork, which 
infuriated Bork's far-right backers. On the Court were Justices Souter 
and Stevens--both Republican appointees--but they wouldn't help the 
billionaires, so the angry chant went out from the far right: No more 
Souters. No more Stevenses.
  Then President George W. Bush got an appointment and nominated his

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friend and trusted White House counsel, Harriet Miers. A Republican 
President nominates a personal friend and rock-ribbed conservative 
Republican--a woman to replace Sandra Day O'Connor. And the attack on 
her comes from the right. The far-right billionaires won't have it. And 
their operative--the aforementioned Leonard Leo--oversaw the project of 
taking her down. And in her place came the ever-so-reliably 
billionaire-friendly Sam Alito.
  This switch--Miers for Alito--gave Leo immense cred with the 
billionaires, who have since made him a very rich man and helped him 
launch his armada of front groups, of which this array is just a 
selection. These three groups are the groups from which he takes 
revenue for himself and through which he manages these two groups, a 
coordinated 501(c)(3) and 501(c)(4). That is sort of the latest and 
greatest technique in dark money political manipulation, a conjoined 
501(c)(3) and 501(c)(4)--usually, common offices, common staff, common 
funders, common mail drop, all of that.
  Around this common core are what are called fictitious names. That is 
the name for it under Virginia law. So 85 Fund is also the Judicial 
Education Project under a fictitious name. It is also the Honest 
Elections Project under a fictitious name. It is also the Free to Learn 
under a fictitious name. Concord Fund is also Judicial Crisis Network 
under a fictitious name, Honest Elections Project Action under a 
fictitious name, and Free to Learn Action under a fictitious name. That 
is quite a lot of confusion, and it is designed to be confusing.
  Scroll on to 2021. By that time, I had been calling out obvious 
issues at the Supreme Court: published articles, delivered speeches, 
wrote law reviews, even wrote a book. Alito, speaking at the University 
of Notre Dame, bemoaned what he said were ``unprecedented efforts to 
intimidate the Court.'' He went on to say that the media was suggesting 
that ``a dangerous cabal is deciding important issues in a novel, 
secretive, improper way in the middle of the night, hidden from public 
view.'' That, of course, referred to the sudden surge under Trump in 
the Court's use of its ``shadow docket'' to quickly change the law 
without hearing full public arguments. Alito's speech then was 
considered a pretty extraordinary airing of grievance by a Supreme 
Court Justice.
  In response, I wrote an op-ed explaining that Justice Alito had 
participated in a pattern of decisions, among them the shadow docket 
ruling leaving in place--pre-Dobbs--Texas's ``bounty-hunter'' anti-
abortion law--a pattern of big wins for big rightwing donors with 
little regard for fact or precedent.
  I argued that Americans' perception that the Court lacks independence 
and the resulting drop in approval isn't some leftwing figment. The 
evidence showed a clear pattern: When big rightwing donor interests 
came before the Court, the Federalist Society Justices on the Court 
would regularly trample precedent and contort the facts and the law to 
deliver the donors' political victories--not a figment, a pattern.
  Then, of course, came the Dobbs case, which actually took away a 
constitutional right from women. For five decades, women had the right 
to choose when to have children. That constitutional right appeared 
safely protected in Supreme Court precedent.
  Then, from a list mysteriously prepared by Leonard Leo and the 
Federalist Society, President Trump appointed three Justices to the 
Court. Now, I say ``mysteriously'' because the Federalist Society, 
evidently, never had any formal proceedings to develop any list, but it 
offered no correction when Trump kept calling it his Federalist Society 
list.
  Well, the next thing you know, that constitutional right was taken 
away by Justices who, in their confirmation hearings, had told the 
American public and the Senate Judiciary Committee that Roe was settled 
law--settled, that is, until they had the votes to unsettle it and make 
up their own.
  As Justice Elena Kagan observed: If there is a new member of a court 
and all of a sudden everything is up for grabs, all of a sudden very 
fundamental principles of law are being overthrown, are being replaced, 
then people have a right to say: What's going on there? That doesn't 
seem very lawlike. And she was right.
  Years after he had assured us Roe was settled law, it was Justice 
Alito who wrote the decision in Dobbs. Alito's draft opinion infamously 
leaked well ahead of the decision, causing rampant speculation about 
who leaked the opinion and why.
  Chief Justice Roberts directed the Marshal to investigate, 
interviewing clerks and Court staff and even searching employees' 
personal phone records. But with the Justices, the Marshal undertook 
some other, also mysterious, iterative process, and the investigation 
proved inconclusive.
  Curiously, days before the opinion leaked, the Wall Street Journal 
editorial page had predicted the Dobbs decision, raising the suggestion 
that someone had a source in the Court. The editorial correctly 
predicted what Alito knew: that Alito would write the decision for the 
majority so long as Chief Justice Roberts couldn't pull another Justice 
to join a more moderate, middle-ground decision.
  Then, this past April, Justice Alito was featured in a highly 
sympathetic interview on the Wall Street Journal editorial page. Alito 
spoke about his opinion's leak and said:

       I personally have a pretty good idea who is responsible, 
     but that's different from the level of proof that is needed 
     to name somebody.

  Any major newspaper would have put an exclusive interview with a 
Supreme Court Justice on the front page, but it would then have been 
subject to fact-checking. This opinion piece looked like an article, 
but it appeared in the Journal's notoriously fast-and-loose-with-the-
facts opinion section under a double byline. One was a Wall Street 
Journal editorial staffer, and the other was David Rivkin, a rightwing 
lawyer who represented the States challenging the EPA's Clean Power 
Plan before the Supreme Court.
  A quick detour about the Wall Street Journal editorial page's ties to 
the rightwing ecosystem: Rightwing bizarro-land likes to ape the 
legitimate world. In the legitimate world, there is a Pulitzer Prize, 
so rightwing bizarro-land has its own Bradley Prize, which--guess 
what--has provided hefty prize money to several Wall Street Journal 
editorial page writers, a million dollars cash in all.
  This editorial piece quotes Alito saying:

       We are being hammered daily, and I think quite unfairly in 
     a lot of instances. And nobody, practically nobody, is 
     defending us.

  In the piece, Justice Alito declined to talk about the Clarence 
Thomas ethics problems reported by ProPublica: extravagant vacations 
worth as much as $500,000, paid for by rightwing billionaire megadonor 
Harlan Crow and not disclosed.
  That report was later followed by an additional ProPublica story 
detailing the billionaire's purchase of properties from Justice Thomas 
and his family members, also not properly disclosed, and payments for 
years of tuition for the Justice's grandnephew whom the Thomases were 
raising, also not disclosed.
  Justice Alito's silence on the Thomas bombshell became all the more 
notable when, 2 months later, ProPublica published another bombshell--
this one about Justice Alito--same cocktail ingredients. In this case, 
a rightwing billionaire, an amenable Justice, undisclosed private jet 
travel, an exotic vacation--all very expensive, all secret. Justice 
Alito's private jet travel to this all-expenses-paid Alaskan fishing 
vacation was paid for by a hedge fund billionaire, Paul Singer, who 
contributed over $80 million to Republican political organizations and 
whose Elliott Management group is one of the largest donors to the 
National Republican Senatorial Committee. This is a politically 
involved rightwing billionaire.
  Later, the billionaire's firm had business before the Court and, in 
that case, won billions of dollars--no disclosure by Alito, no recusal. 
Charles Geyh, an Indiana University law professor and leading expert on 
recusals, had this to say:

       If you were good friends, what were you doing ruling on his 
     case? And if you weren't good friends, what were you doing 
     accepting this?

  But wait. There is more. The tab for Alito's stay at the salmon lodge 
in Alaska was covered by a different billionaire. If you are keeping 
score, we are now up to three billionaires. This one is named Robert 
Arkley, and he

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funded the launch of Leonard Leo's advocacy group the Judicial Crisis 
Network, also heavily engaged in rightwing political influence focused 
on the Court.
  Leo, the operative behind the current rightwing Supreme Court 
supermajority, not only organized Alito's trip, he gallivanted off to 
Alaska with the Justice and the billionaires.
  By my count, after yet another story about Justice Thomas, we are now 
up to six rightwing billionaires attending to the care and feeding of 
two Justices: Thomas and Alito. And there are all sorts of links among 
them and with the ubiquitous Leonard Leo. So many Justices, so many 
billionaires, so many gifts.
  But there is even more. Alito was not the first Justice to stay at 
this particular lodge. Justice Scalia also took a private jet to the 
lodge, courtesy of billionaire Arkley, and also did not disclose the 
gift. In one memorable bit of color from that ProPublica story, Scalia 
was described as mixing martinis made with ice chipped off of a 
glacier.
  There. You thought I had forgotten that, but I didn't.
  The evening before the Alito billionaire travel story ran, the Wall 
Street Journal comes back into the picture again. Alito tried to 
preempt ProPublica's reporting by taking to the Wall Street Journal 
editorial page. In the op-ed, Alito argued that he didn't need to 
disclose the private jet travel under Federal law because the private 
jet should be considered a ``facility'' and that his seat on the 
private jet would have otherwise been empty so it was free and there 
was no gift.
  I won't go into how laughable these arguments are. That is a separate 
case. What is important is that these arguments were printed on the 
Wall Street Journal editorial page without investigation or comment by 
the page, taken at face value.
  Oh, and, by the way, the cost of that charter--the private jet travel 
would have cost over $100,000 each way.
  In that Wall Street Journal editorial page piece from the spring, 
Alito had said about the Court's collapsing approval:

       Well, yeah, what do you expect when you're--day in and day 
     out--``They're illegitimate. They're engaging in all sorts of 
     unethical conduct. They're doing this, they're doing that''?

  Justice Alito's complaining has it completely backward. The problem 
is not that Americans are pointing out the ethical lapses at the 
Supreme Court. The problem is the ethical lapses at the Supreme Court. 
The Roberts Court Justices' behavior is crashing public trust in the 
institution--and justifiably--first, with preposterous judicial 
behavior that no other judge would indulge; second, with outrageous 
violations of quite clear rules and procedures judges are supposed to 
follow about reporting those gifts; third, with preposterous excuses 
for the bad behavior and the reporting violations; and fourth, with no 
process to ever even try to get to the truth to establish the facts.
  It is a mess.
  Ideally, the Justices would start fixing that mess on their own. The 
Court and the Judicial Conference, which Roberts chairs, have the 
ability to fix this, but so far, they won't. I suspect there is a lot 
more to be found out about this mess, and they don't want those further 
disclosures so they would just as soon pull a rug over the whole thing, 
but that won't work.
  Congress also has the ability to write ethics rules for the Justices. 
Remember, Congress created the judges' financial disclosure 
requirements in the Ethics in Government Act. And Congress created the 
judicial recusal law, which the Justices are also required to follow. 
And Congress created the Judicial Conference, which administers 
financial disclosure and code of conduct matters. Clearly, the article 
I legislative branch can legislate in this area. Clearly, we can 
oversee Agencies that we have created and laws that we have passed, and 
indeed we have for decades.
  In the coming days, the Senate Judiciary Committee will mark up my 
Supreme Court Ethics, Recusal, and Transparency Act. This is a very 
important step forward in this process, and I thank Chairman Durbin for 
his leadership. This bill would put basic ethics guardrails and 
transparency measures in place to help ensure the American people that 
they can get a fair shot at the Supreme Court, even if they don't have 
a private jet.
  Today, in the Court that dark money built, the honor system has 
flagrantly failed. We need to legislate; we need to investigate; and we 
need to fix this mess for the American people.
  To be continued, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, and now for the wrapup.

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