BEST OF: Sen. Sheldon Whitehouse on How Dark Money Captured SCOTUS

Summary

The Al Franken Podcast: "BEST OF: Sen. Sheldon Whitehouse on How Dark Money Captured SCOTUS"
Airdate: January 4, 2026

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Episode Overview

In this "best of" episode, Al Franken revisits a compelling 2023 conversation with Senator Sheldon Whitehouse about his book The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court. The discussion delves deep into how vast, undisclosed funds (so-called “dark money”) have influenced the U.S. Supreme Court's composition and decisions, resulting in a string of pro-corporate and right-wing rulings. They explore specific cases, the role played by organizations like the Federalist Society, and personalities like Leonard Leo. With characteristic humor and sharp insight, the episode lays out the connections between money, politics, and judicial outcomes, and highlights the urgent need for reform.

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Key Discussion Points and Insights

The Supreme Court’s Shift and Major Decisions

• Whitehouse’s Premise (04:09): The right wing, via “dark money,” orchestrated the ideological capture of the Supreme Court.

  “It’s my theory that the right wing used dark money to capture the Supreme Court.” — Whitehouse (04:09)

• Landmark Case Effects (01:33-06:05):

  • Citizens United (2010) enabled unlimited, undisclosed political spending.
  • Shelby County v. Holder (2013) gutted voting rights protections, which Roberts justified under the notion that America had moved past racism—a point immediately disproved by “surgical precision” voter suppression, especially in North Carolina.
  • West Virginia v. EPA and others have systematically dismantled regulatory authority, especially environmental protections.

The Practice and History of Court "Capture"

• Capture Defined (04:45):
  • Whitehouse likens it to 19th-century regulatory board takeovers by railroad barons—a direct analogy to modern corporate control.

The Federalist Society Pipeline and Trump’s Appointments

• Federalist Society’s Dominance (06:38-07:30):

  • Five of the six right-leaning justices have Federalist Society ties.
  • Trump openly sourced nominees from their list:

    “The Federal Society is going to tell me who to pick. And the Federal Society confirmed. ‘Yeah, we told them who to pick.’” — Whitehouse (07:11)

• Auditions for the Court (08:35):

  • Kavanaugh, not on the original trump list, made his intentions clear through repeatedly hardline opinions, especially on abortion and dark money cases—a process the hosts jokingly call “auditioning like crazy.”

Leonard Leo and the Dark Money Network

• Leo's Influence (10:25-12:49):

  • Leonard Leo orchestrates a sprawling operation, channeling billions through various “front groups” (notably the Judicial Crisis Network) for judicial lobbying, ad campaigns, and more.
  • A single $1.6 billion donation from a right-wing billionaire underscores the stakes and scale.

• Proximity and Transparency (11:30):

  • Many of these groups, including the Judicial Crisis Network and Federalist Society, operate out of the same building, emphasizing a lack of real separation.

Climate Disinformation and Public Manipulation

• Role of Institutes (13:12-14:24):
  • Organizations like the Heartland Institute serve as “climate disinformation spigots,” muddying public understanding for political ends.
  • Whitehouse highlights the real-life consequences: rising sea levels, wildfires, and extreme weather, and urges Democrats to expose the fossil fuel industry’s lies.

The McConnell Playbook and Garland’s Blocked Nomination

• Blocking Garland and Republican Hypocrisy (17:20-19:16):

  • Franken and Whitehouse recall McConnell’s maneuvering to block Obama’s Supreme Court pick and Republican claims to "principled" opposition—exposed as pure power politics when they later reversed course to confirm Amy Coney Barrett in 2020.

• Viral Senate Speech (19:16):

  • Whitehouse’s viral Judiciary Committee presentation on dark money spurred new public awareness.

Judicial Ethics and Recusal

• Clarence Thomas and Conflicts of Interest (43:34-47:49):
  • Thomas refused to recuse himself from cases touching on his wife’s direct involvement in the 2020 election aftermath—despite clear conflicts and public knowledge.
  • Whitehouse details the Supreme Court’s non-existent ethics review process, contrasting it with Roberts’ selective investigations (notably the Dobbs leak vs. Thomas’s conflict).

The Pro-Corporate, Anti-Democratic Pattern

• Supreme Court’s Pro-Corporate Tilt (37:23-43:34):

  • Whitehouse and Franken dissect the court’s apparent statistical bias: In 72 out of 76 partisan 5-4 decisions with a clear Republican donor interest, the donor side won.

  “…in those 72 decisions…it was 72 to 0.” — Whitehouse (43:14)

• Mandatory Arbitration and the Loss of Jury Rights (38:02-41:45):

  • Mandatory arbitration clauses, often buried in contracts, have largely eliminated Americans’ right to a jury trial (7th Amendment protections), especially in cases of discrimination and abuse.

Doctrinal Innovation and Judicial Craftiness

• Major Questions, Equal Sovereignty, Anti-Dragooning (31:13-34:57):

  • The Roberts court continually revives novel legal doctrines (e.g., major questions, equal sovereignty, anti-dragooning) to build precedents for future right-wing decisions.

  “They’re doing a lot of that building themselves new doctrines to play with in the future.” — Whitehouse (32:05)

• Practical Example:

  • The anti-dragooning doctrine from the ACA Medicaid expansion ruling is “lurking, waiting for its day to be revived.”

Disillusionment, Activism, and the Way Forward

• Cynicism and Hope (50:56-51:34):
  • Although the analysis is deeply sobering, Whitehouse insists understanding this “disease” is a prerequisite for organizing a cure:

  “Gotta understand the disease before you can apply the cure.” — Whitehouse (51:11)

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Notable Quotes & Memorable Moments

• On the Supreme Court’s Process:

  “They just bowl forward because that is what protects the result that they wanted all along.” — Whitehouse (25:23)

• On Court’s Pro-Corporate Record:

  “…When you can show 72 to 0, that case is settling.” — Whitehouse (43:14)

• On Judicial Ethics Blind Spots:

  “There’s no complaint box where you can put the question… no evaluation or evidence that’s gathered… no public disclosure.” — Whitehouse (44:47)

• On the Creation of Doctrines:

  “Now he’s got a new doctrine to waive—‘oh, you see, way back there in the Obamacare decision…’” — Whitehouse (34:32)

• Final Dose of Humor (on the Supreme Court justices’ personalities):

  “…just in order, who do you hate the most? I mean, because [Alito’s] just been so… He’s like doing victory laps and shit, you know.” — Franken (49:52)

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Timestamps for Key Segments

• 01:33 – 06:05: Main theme, dark money’s effect on court history and decisions
• 06:38 – 08:35: Federalist Society, Trump’s nominees, Kavanaugh’s “audition”
• 10:25 – 14:45: Leonard Leo, the dark money web, and climate disinformation
• 17:20 – 19:16: McConnell, blocked nominations, and Republican reversals
• 19:16 – 21:43: Senate viral speech on dark money, Ted Cruz’s counter-placard
• 21:43 – 28:49: Citizens United, Shelby County, factual errors as basis of major rulings
• 31:13 – 34:57: Development of new legal doctrines (e.g. major questions, equal sovereignty, anti-dragooning)
• 37:23 – 43:34: Supreme Court’s pro-corporate record, mandatory arbitration, 7th Amendment implications
• 43:34 – 48:54: Ethics scandals, Thomas/Ginni Thomas, the failure of Supreme Court self-regulation
• 50:56 – 51:34: Reflections on cynicism, need for reform, and a call to action

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Overall Tone & Takeaways

Balancing biting satire, deep frustration, and earnest concern, Franken and Whitehouse illuminate the severe challenges facing the U.S. judicial system, driven by an undercurrent of vast, undisclosed political cash. The episode is equal parts sobering diagnosis and dark comic relief—a must-listen for anyone concerned with the integrity of American democracy.

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For further action:

• Read Whitehouse’s The Scheme for the full picture.
• Support initiatives for Supreme Court ethics reform and campaign finance disclosure.
• Stay attuned to ongoing judicial nominations and the organizations behind them.

Transcript

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[Senator Sheldon Whitehouse (Interviewer)]

Hey everybody. Happy New Year. Well, we got a great one today, you know, for a change, because it's a best of our 2023 interview with Senator Sheldon Whitehouse on his book the how the Right Wing Used Dark Money to Capture the Supreme Court. And of course we've seen the horrible decisions the court has made since Trump was elected. Dobs, of course. EPA v. West Virginia, which limited the EPA's power to regulate greenhouse gas emissions. The aptly named Trump v. United States, which gave immunity to presidents if they break the law in the course of official conduct to its recent decision to give Texas five new racially gerrymandered Republican seats in the House. All of these six three decisions. But the court making terrible right wing rulings predates Trump with 54 decisions like Citizens United in 2010, which opened the floodgates to virtually unlimited money in place. Political spending. Shelby county in 2013 would struck down Section 5 of the Voting Rights act, ending federal pre clearance of states and localities that had a history of voter Suppression. Well, the Fourth Circuit wrote that in the very next election, North Carolina targeted black people with, quote, almost surgical precision. Of course, that decision came out two years after that election, and it's been right wing money that's fueled this all the way. I served with Sheldon on the Judiciary Committee, and after Dick Durbin retires, I expect he will be the top Democrat on the committee, hopefully its chairman. Well, let's go to my discussion with Senator Sheldon Whitehouse. It's a great one for a change, you know, because it's the best of. And Peter and I wish you and yours a happy New Year. The scheme. This is your book. The how the Right Wing Used Dark Money to Capture the Supreme Court. Now, what's, what's the book about? I read it. I read it. I know what it's about.

[Senator Sheldon Whitehouse (Interviewee)]

It's my theory that the right wing used dark money to capture the Supreme Court.

[Senator Sheldon Whitehouse (Interviewer)]

I wish you'd prove it.

[Senator Sheldon Whitehouse (Interviewee)]

Did my level best.

[Senator Sheldon Whitehouse (Interviewer)]

Yeah, yeah. No, it's pretty definitive and it's scary, really. You wrote a previous book called Captured, which is about all kinds of catcher, like regulatory, like agency capture. Yeah, this is. And you talked about court capture in this. And what capture is is what it sounds like. Right.

[Senator Sheldon Whitehouse (Interviewee)]

And so, yeah, Visualize a late 19th century railroad commission that has been set up to establish the rates for railroad cargo and passenger tickets. And obviously the railroad barons would like to make sure that all their friends were running the railroad commission and that all the decisions went their way. That's what Capture is. And that's what I contend has happened to the Supreme Court. Not conservative. Captured.

[Senator Sheldon Whitehouse (Interviewer)]

And the capture is by dark money from interests that are interested in, oh, protecting corporations and getting judges on the Supreme Court who will rule in. In their favor. And that's what they've gotten.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. Taking apart the regulatory apparatus of the United States government so that, among other things, polluters can pollute with freedom.

[Senator Sheldon Whitehouse (Interviewer)]

Well, that was one of the, you know, everyone focused on Dobbs, but that was West Virginia.

[Senator Sheldon Whitehouse (Interviewee)]

Yep.

[Senator Sheldon Whitehouse (Interviewer)]

Of course, this was to deal with greenhouse gases. And the idea was for the EPA supposedly had authority to do this until this decision.

[Senator Sheldon Whitehouse (Interviewee)]

That's the general outline, because there was Massachusetts versus epa, as you know, beforehand, which said these greenhouse gases are pollutants and therefore the Clean Air act is there to do something about it. And the Clean Air act has been, like, pretty clear since the 1970s. So there actually wasn't much that was very novel here. The court just brought in a new doctrine imported from Cato or somewhere. Yeah, Cato Federal Society George Mason Scalia University School of Law.

[Senator Sheldon Whitehouse (Interviewer)]

Well, let's talk about the Federalist Society there. How many Federalist Society justices are there now?

[Senator Sheldon Whitehouse (Interviewee)]

I think Roberts has technically turned in his membership, so I guess that leaves five.

[Senator Sheldon Whitehouse (Interviewer)]

He's turned in his membership. So he was a member of the Federal Society.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah.

[Senator Sheldon Whitehouse (Interviewer)]

Well, he has such high ethical standards.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. Like the whole court.

[Senator Sheldon Whitehouse (Interviewer)]

Well, okay, so five. So that would be all the. The right wing judges.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. And as you recall, the three Trump judges all came so called off of the Trump list of Federal Society judges that he touted. You remember him saying, I'm going to pick only all Federal Society judges. That's the gold standard. The Federal Society is going to tell me who to pick. And the Federal Society confirmed. Yeah, we told them who to pick.

[Senator Sheldon Whitehouse (Interviewer)]

Which is always funny to me during like these confirmation hearings where you're trying to ask them where you stand on Roe. Remember when Lindsey Graham said to Gorsuch, if, if the President asked you to overrule Roe, what would you do? And he goes, I would have walked.

[Senator Sheldon Whitehouse (Interviewee)]

Out of that room. Remember that?

[Senator Sheldon Whitehouse (Interviewer)]

And it's like, judges don't do that. Not on this side of pens. Remember that?

[Senator Sheldon Whitehouse (Interviewee)]

Yeah, yeah, yeah. Well, first, he might have met once he was a Supreme Court judge.

[Senator Sheldon Whitehouse (Interviewer)]

No, he was in his interview, I.

[Senator Sheldon Whitehouse (Interviewee)]

Promise you, while he was in his interview for the position.

[Senator Sheldon Whitehouse (Interviewer)]

He would not have done that walk.

[Senator Sheldon Whitehouse (Interviewee)]

Out of any room.

[Senator Sheldon Whitehouse (Interviewer)]

Well, would have had to say, is, sir, I not. I shouldn't answer that, but may I suggest that you look at who sent me?

[Senator Sheldon Whitehouse (Interviewee)]

Exactly.

[Senator Sheldon Whitehouse (Interviewer)]

I mean, of course they know. And you didn't have to ask Coney Barrett. You didn't have to. You don't have to ask any of these. You don't have to ask Kavanaugh because the Federalist Society only will back now. Kavanaugh auditioned. Yep.

[Senator Sheldon Whitehouse (Interviewee)]

He auditioned like a fiend. He auditioned like crazy.

[Senator Sheldon Whitehouse (Interviewer)]

But one of his auditions was on an abortion case, and it was a young girl who was held by immigration authorities and she was pregnant and wanted abortion. And the case came before him. And he was trying to. He just kept delaying it. Right. Delaying her. And so that the time out, time.

[Senator Sheldon Whitehouse (Interviewee)]

Would run out and then she wouldn't be able to get the abortion to which she had a constitutional right. He was just going to run out.

[Senator Sheldon Whitehouse (Interviewer)]

The clock on her, which is his audition. You see, I'm, you know, I'm reliable on. Yeah, on choice.

[Senator Sheldon Whitehouse (Interviewee)]

He did it there. He did it on guns. He did it on dark money. He was very, very attentive. But you remember he was not on the original Trump lists.

[Senator Sheldon Whitehouse (Interviewer)]

Yes. So he had.

[Senator Sheldon Whitehouse (Interviewee)]

To audition like crazy, way more than any of the others.

[Senator Sheldon Whitehouse (Interviewer)]

I prepared a number for. From Fiddler on the Roof.

[Senator Sheldon Whitehouse (Interviewee)]

Exactly. And he knew Leonard Leo also because they'd worked together back in the Bush era when Leonard Leo torpedoed Harriet Myers and put Sam Alito on the court instead.

[Senator Sheldon Whitehouse (Interviewer)]

Harriet Myers, for everybody, was Supreme Court. This is Bush W nominated for the Supreme Court. She was a White House counsel, his.

[Senator Sheldon Whitehouse (Interviewee)]

Friend, his White House counsel, a solid Republican, and nominated. And humiliatingly, Bush had to withdraw her because of pressure from the big right wing donors orchestrated by none other than Leonard Leo. And there down in the office somewhere, was little Brett Kavanaugh learning his lessons about what it took to get on the Supreme Court. Yeah.

[Senator Sheldon Whitehouse (Interviewer)]

So tell me who Leonard Leo is. Everybody who Leonard Leo is.

[Senator Sheldon Whitehouse (Interviewee)]

Leonard Leo is an operative who has been involved in Republican judicial nominees for quite a while. He was the architect of the list. He probably was behind Mitch McConnell's decision to stall Merrick Garland. I think he was. Delivered the message from the big donors that this wasn't going to happen. He runs a group of, at any given time, probably 12 to 20 front groups that he can filter money through. And one of them is called the Judicial Crisis Network. And that's the group that took big anonymous contributions to pay for all the TV ads against Merrick Garland, for Gorsuch, for Kavanaugh and for Barrett. Conveniently, the Judicial Crisis Network is on the same hallway in the same building right down the hall from the Federalist Society. And they answer each other's doors.

[Senator Sheldon Whitehouse (Interviewer)]

You don't have to hide that. I mean.

[Senator Sheldon Whitehouse (Interviewee)]

Nope.

[Senator Sheldon Whitehouse (Interviewer)]

No.

[Senator Sheldon Whitehouse (Interviewee)]

Well, we haven't done a very good job of looking and exposing.

[Senator Sheldon Whitehouse (Interviewer)]

Right.

[Senator Sheldon Whitehouse (Interviewee)]

It's one thing to be the sleeping cop, it's the other thing to be the actual burglar. They're the actual burglars. And that's the bad part.

[Senator Sheldon Whitehouse (Interviewer)]

So Leonard Leo, now, does he have any money now?

[Senator Sheldon Whitehouse (Interviewee)]

Yeah, yeah. You, as you know, does he have.

[Senator Sheldon Whitehouse (Interviewer)]

Enough for the rent?

[Senator Sheldon Whitehouse (Interviewee)]

A peculiar right wing billionaire who was previously associated with the Heartland Institute, which distinguished itself by putting up billboards comparing climate scientists to the Unabomber. That's kind of where he comes from. Dropped $1.6 billion in a complicated corporate transaction into a 501c4 company set up by Leonard Leo for the purpose of receiving this $1.6 billion and filtering it from there into his other 12 to 20 front group. So who knows where that's going to sprinkle out? But he's got a $1.6 billion slush fund to play with, which I think is probably his reward for having successfully packed the court with the big donors chosen justices.

[Senator Sheldon Whitehouse (Interviewer)]

$1.6 billion.

[Senator Sheldon Whitehouse (Interviewee)]

Quite a payday. You could live for a long time on $1.6 billion, particularly if you're paying yourself salaries through multiple groups that kept the money.

[Senator Sheldon Whitehouse (Interviewer)]

Okay. Speaking of the heartland, it was a Heartland Foundation. Heartland. Yeah. Heartland Institute.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. They're always. They're. They're institutes.

[Senator Sheldon Whitehouse (Interviewer)]

You know, ACOR put out a lot of disinformation about climate.

[Senator Sheldon Whitehouse (Interviewee)]

Yep. That's their primary role, is to be a climate disinformation spigot.

[Senator Sheldon Whitehouse (Interviewer)]

And you spent a lot of time. I saw a lot on the Senate floor talking about.

[Senator Sheldon Whitehouse (Interviewee)]

You used to join me in our women denial speeches when we were raising hell about this scheme. Yeah.

[Senator Sheldon Whitehouse (Interviewer)]

And, you know, at least now people kind of accept. I. I guess they accept that there's climate change, but Trump says it's a Chinese hoax.

[Senator Sheldon Whitehouse (Interviewee)]

If you set Trump aside, I think that among normal people, there's almost nobody who hasn't seen climate change effects in their life. And there's an enormously powerful case for Democrats to make to the American public that the American public was lied to by the fossil fuel industry using Republicans as their mouthpieces to propagate those lies. And I think that's a very powerful argument for us to make as more and more people see farms flooded, crops withering in drought, wildfires out of season, the whole rest of nature's cornucopia of miseries that climate change is launching at.

[Senator Sheldon Whitehouse (Interviewer)]

Us and see sea level rising, which kind of, you know, there's a reason for that.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. We've redrawn our maps to show what Rhode Island's going to look like in 20, 30, 40, 50 years as we lose our shoreline to the rising sea.

[Senator Sheldon Whitehouse (Interviewer)]

Of course. Of course.

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[Senator Sheldon Whitehouse (Interviewee)]

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[Senator Sheldon Whitehouse (Interviewer)]

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[Senator Sheldon Whitehouse (Interviewee)]

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[Senator Sheldon Whitehouse (Interviewer)]

So Garland not being taken up. You remember, of course, very well McConnell saying you you know, there's already Boatsman Cash in New Hampshire. He called it a Biden what he called the Biden rule. I don't know if you remember me in Judiciary reading that speech, Biden's speech, because McConnell said that Biden said you can't take up a and this was from 88, right? Yeah. When Bush and But he wasn't there was no one nominated. He just it was in June as the court term was ending, and he said if someone resigns, you know, the president has to consult with us or nominate a moderate. That's what he said. And we're not going to take up someone who is. We're not consulted with. And obviously, Garland is most moderate. I mean, and then, of course, you saw Lindsay saying, if. In 2020, during. If there's an election, we will not take up a nominee. And you can hold this.

[Senator Sheldon Whitehouse (Interviewee)]

Hold the tape.

[Senator Sheldon Whitehouse (Interviewer)]

Hold the tape.

[Senator Sheldon Whitehouse (Interviewee)]

Hold the tape.

[Senator Sheldon Whitehouse (Interviewer)]

Why? In. In Coney Barrett's hearing. I'm sorry, I. I may have urged you to do this. Why didn't we just say hold the tape? What happened to the tape? Here, let me quote you again. Hold the tape. What happened to the tape? I got to repeat this. You said, hold the tape. See, if I had been there, I would have done that.

[Senator Sheldon Whitehouse (Interviewee)]

I know, because you're so good at that kind of stuff, you can get away with it. Those of us who are mere mortals have to ask simpler questions.

[Senator Sheldon Whitehouse (Interviewer)]

Well, you have to use your 30 minutes to make the case. There's a lot of dark money.

[Senator Sheldon Whitehouse (Interviewee)]

Exactly. I made the dark money case. And that actually was a very productive use of my time because it really did go viral. It was the first time I had such a big response to what I'd been saying. I think it really, you know, every once in a while, an idea kind of breaks through. That idea broke through that day. So I'm glad I put the time into that. The funny part is that following me was Ted Cruz, and I'd been using these little placards. He decided he was going to have a placard, too, and somebody got it to him. And the placard was just every Democratic group that Republicans don't like, randomly connected by blocks, randomly connected by arrows. There was no rhyme or reason to it. And it had been prepared for him by a dark money group to show how Democratic dark money was supposedly this big problem.

[Senator Sheldon Whitehouse (Interviewer)]

Did he say that? Did he say that?

[Senator Sheldon Whitehouse (Interviewee)]

We were able to show this was.

[Senator Sheldon Whitehouse (Interviewer)]

Prepared by one of the groups that Sheldon mentioned. Okay, Chief Justice Roberts, I have a couple bones to pick with him.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah.

[Senator Sheldon Whitehouse (Interviewer)]

Okay. Balls and strikes.

[Senator Sheldon Whitehouse (Interviewee)]

Okay.

[Senator Sheldon Whitehouse (Interviewer)]

So when he had his confirmation hearing, he was talking about how sort of conservative he was going to be in terms of rulings and make them very narrowly, but also just call balls and strikes. And the thing is, is that the strike zone was just different for corporations who had a very teeny when they're up to bat. Teeny. His strike zone would be like, okay, I need to see your wheelhouse. Show me exactly where you want the ball, and that'll be the strike. And then with labor, it was a huge Strike zone. I mean, you could bean a guy and be strike and you're also get the first base because you've been hit in the head. But also, he said that he was going to very do narrow decisions. He. On Citizens United, that was a five, four. But that was hardly. That was some group, Right. That wanted to see they get their movie up. And that became there's a right for corporations and other groups to spend as much money as they like.

[Senator Sheldon Whitehouse (Interviewee)]

Yep. They took a question about showing a movie and used it to completely upend the entire campaign finance system of the country. And they did it so late in the proceedings that none of the parties had a chance to build a record on that larger question. I believe they deliberately did it late so there could be no record, because courts are supposed to follow evidence in the record. If there was a record, it would have showed what a stupid decision this was and how it just was not internally consistent, didn't make any political logic, wasn't consistent with human nature, wasn't even logical. But they dodged all that by rushing to expand the question at the very last minute after briefs were in, when any chance of a record was closed. And they answered a question that no court below had even proposed as the question.

[Senator Sheldon Whitehouse (Interviewer)]

And that has poisoned our political system. Yeah.

[Senator Sheldon Whitehouse (Interviewee)]

It has made it stink. That's how the dark money got in. No point putting in dark money if all you can do is a $2,500 contribution. Who cares? It's when you want to drop $25 million into a race that suddenly it becomes really important to hide who you are. Yeah.

[Senator Sheldon Whitehouse (Interviewer)]

I remember when McCain Feingold, of course, limited the amount of money people could put in the campaigns. And that was a reaction to Nixon and other stuff. So when McCain Feingold came up, I think there were 14 Republican senators who had voted against McCain Feingold that were there for the first disclose act after citizens United. Now, Kennedy had said he said there would be disclosure. Right.

[Senator Sheldon Whitehouse (Interviewee)]

It was the premise and principle of the decision that there would be disclosure. Because if there is not disclosure, it causes corruption. That is the premise of the case.

[Senator Sheldon Whitehouse (Interviewer)]

Let me understand this, because also this in Shelby County. Because in Shelby county, it was basically, let's get rid of Title five. Right. You know, and. And Robert said, we can get rid of it because.

[Senator Sheldon Whitehouse (Interviewee)]

Racism is over. Legislatures won't pass bad laws to try to prevent people of color from voting.

[Senator Sheldon Whitehouse (Interviewer)]

Yeah. And. And Ginsburg said, that's like getting rid of your umbrella and a rainstorm because you're not getting wet. And then. Okay. And then. Right Away bomb. North Carolina creates this voting scheme that the 4th Circuit couple of years later, because they're doing this under title two, not title five. They say it targeted African Americans with almost surgical precision.

[Senator Sheldon Whitehouse (Interviewee)]

Correct their, their language, surgical precision in the court. Yeah, yeah.

[Senator Sheldon Whitehouse (Interviewer)]

Now if you're Roberts and saying, well, these, these Southern states have stopped me, don't you go like, you know, I was wrong.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. And, you know, interestingly, in after Citizens United, the next case up was that one out of Montana. Bullock and I wrote an amicus brief in that case with John McCain, and the two of us told the court, hey, guys, you said that all this unlimited spending was going to be transparent. It's not. You are wrong. Your premise is flawed. You've got to reconsider this. By the way, you also said it was all going to be independent of campaigns. It's not. You are wrong. You've got to reconsider this. And they refused to even take up the case. They refused to even allow it to be argued. They just simply threw out Montana's case and went on about their business. So the court has known about errors that it has made. Not errors of law, factual errors, things that they found to be true that were provably not true. And instead of going back and correcting the clear, plain error, they just bowl forward because that is what protects the result that they wanted all along.

[Senator Sheldon Whitehouse (Interviewer)]

So Kennedy can't go, hey, guys, I said that there won't be corruption because there'll be disclosure. Now, the reason I brought up both McCain, Feingold, and of course Citizens United, which ended McCain Bingel, is that these 14 senators, I think it was 14 Republicans who had voted against McCain Feingold had said things like, sunshine is the greatest disinfectant. All you need is disclosure, disclose, disclose, disclose, disclose. And I found the guys who had said that. And remember that vote?

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. We went through that on the Senate floor. We read out their statements before the vote, and to a person, the ones that were still in the Senate just took a dive and voted to protect dark money, voted against disclosure.

[Senator Sheldon Whitehouse (Interviewer)]

So I stood in the well and bothered those guys and I said, what happened to disclose, disclose, disclose? And then they look at me like, you're annoying. And then vote down. And then I would say it to someone else, another Republican will go like, well, it doesn't disclose labor unions. And I go, yes, it does. Oh, oh, okay, down. And then I had. I don't know if I should say who this was. This was one of the stupidest things the senator said to me ever. So he Goes, well, it doesn't have labor unions off disclose. I go, yes, it does. It does. He goes, okay, well, let's say the New York Times endorses someone that's worth a lot, they don't have to disclose. And I said to him, it's in the New York Times. And he goes, oh, yeah, that no.

[Senator Sheldon Whitehouse (Interviewee)]

Right. I guess it is disclosed right across the top of the front page or.

[Senator Sheldon Whitehouse (Interviewer)]

Just the editorial page. It doesn't have to be across the front page, but that's a lot of disclosure.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah, but you raised a really important point. So let me jump in and say one thing. What Citizens United had in common with Shelby county is that the court premised its decision on an error of fact. And that makes these two decisions both very interesting and very vulnerable. Because if you go all the way back to Marbury v. Madison, the whole concept of judicial supremacy, that is the judiciary's job to interpret the Constitution, to say what the law is. But they have no special skill that anybody should be recognizing in what the facts are. And when they have gotten the facts indisputably wrong, demonstrably erroneous, and then they don't go back and fix it, it's a weakness in the decision.

[Senator Sheldon Whitehouse (Interviewer)]

Are you saying that Kennedy saying there'll be disclosure is getting the facts wrong or it's not?

[Senator Sheldon Whitehouse (Interviewee)]

That can't be what you're.

[Senator Sheldon Whitehouse (Interviewer)]

That okay. And Robert's saying these there's not going.

[Senator Sheldon Whitehouse (Interviewee)]

To be any more racist legislating about votes. Obviously got the facts wrong. Cases piled up instantly but didn't want to go back and correct. Even though it was, to use the Supreme Court's own phrase, demonstrably erroneous.

[Senator Sheldon Whitehouse (Interviewer)]

Yeah. No one does anyone like point that out like when they're arguing does Neil, Katja.

[Senator Sheldon Whitehouse (Interviewee)]

All is going to go go.

[Senator Sheldon Whitehouse (Interviewer)]

Oh, by the way, before I argue our position on more v. Harper, which is a scary. That is the. What is it called? The independent legislative doctrine or theory State legislature.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. Well, I filed a brief in that case going through some of the more repellent of the amici who had turned up to argue for the independent state legislature doctrine and to connect the dots among the various amici because so many of them were linked together between some of those amici and the plot to overthrow the election. Many of them had been active in the efforts to overthrow the election on behalf of Trump. And also the relationship between some of the Emeki and groups have spent tens of millions of dollars putting Gorsuch, Kavanaugh and Barrett onto the court. Undisclosed. They didn't bother to tell the court, oh, by the way, I'm the corporate sibling of this group that spent $60 million putting you all on the court. Unfortunately, it fell to me to point that out, but the court should be cleaning that mess up and getting these proper disclosures out itself.

[Senator Sheldon Whitehouse (Interviewer)]

Have you taken away from people you've talked to on how that's. It seemed like a three, three, three thing? Is that what you're.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah, I think that, you know, there's been enough noise kicked up around this case and they know it's going to be watched very carefully and they know it's a wildly extremist doctrine.

[Senator Sheldon Whitehouse (Interviewer)]

So what's the middle ground? I mean, what are the three? I guess that's Roberts, Coney Bear and Kavanaugh. What are they? What's the middle ground there?

[Senator Sheldon Whitehouse (Interviewee)]

I can't tell, but I suspect the middle ground is something along the lines of, in this case, they didn't get there. But, you know, we need to allow room for the state legislatures to have authority in controlling how electors are selected and establish the proposition a little bit. Like to go back to our West Virginia vs EPA case, the major questions doctrine is now alive and well. It's a new theory for them to play with. So they could, without ruling in favor of the state in this case, they could still create a very significant new doctrine to play with in the future. And they're doing a lot of that. They're doing a lot of that building themselves new doctrines to play with in the future.

[Senator Sheldon Whitehouse (Interviewer)]

So it's like a predicate to.

[Senator Sheldon Whitehouse (Interviewee)]

Exactly. Well, you went to Shelby County. Shelby county was preceded by decision in which Justice Roberts talked about, I think it was called equal sovereignty doctrine and that states are equally sovereign. This was a doctrine that I guess went back to when we were adding new states to the Union. And when you were adding a new state to the Union, you couldn't prejudice them as newer states had to kind of step in as like full fledged states. So there was this equal sovereignty doctrine. He dusted that off in a decision not long before. Shelby didn't know quite what he meant by that or why he was doing it. And then in Shelby he said, well, you know, this well established equal sovereignty doctrine means that one set of states can't have different rules than another set of states. So the rules of the Civil Rights act that required pre clearance for states that had terrible records of suppressing particularly African American votes were in a separate category than others that had not done that. You know, now you look back. Oh, that's why he was doing that. Now I get it.

[Senator Sheldon Whitehouse (Interviewer)]

Yeah, he's, he's a little slippery. I mean, slimy.

[Senator Sheldon Whitehouse (Interviewee)]

He's crafty. That's for sure.

[Senator Sheldon Whitehouse (Interviewer)]

Crafty. That'd be the more complimentary.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. When we, when he upheld the Obama case, he snuck in two things that were very powerful. One, very substantially reduced the Commerce clause power of Congress and second, created a whole new doctrine that he called the anti dragooning doctrine, which is that Congress has to be limited in what it can require states to do in order to get federal funds because otherwise the state is being dragooned by the irresistible prospect of federal funds into doing policies it may not like.

[Senator Sheldon Whitehouse (Interviewer)]

That was the Medicaid expansion piece of it, right?

[Senator Sheldon Whitehouse (Interviewee)]

Yes, I think you're right about that. The offer of federal support for Medicaid was the so called dragooning.

[Senator Sheldon Whitehouse (Interviewer)]

All 50 states were going to have Medicaid expansion. And I believe, I don't, I don't know if it was dragooning, but I think that that was the kind of piece of the ACA that he unraveled. It sounds like using dragooning.

[Senator Sheldon Whitehouse (Interviewee)]

So that doctrine is still lurking out there, waiting for its day to be revived in some later decision when something that he doesn't like is attached to federal spending. And now he's got a new doctrine to waive. Oh, you see, way back there in the Obamacare decision, years ago, I said no and no dragooning. And now here's my moment to use my new tool to advantage.

[Senator Sheldon Whitehouse (Interviewer)]

We're going to take a quick break. We'll be right back with Senator Sheldon Whitehouse.

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[Senator Sheldon Whitehouse (Interviewee)]

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[Senator Sheldon Whitehouse (Interviewer)]

Let's just talk about how pro corporate the court is. In your book, you sort of document this or lay out just the numbers here, right?

[Senator Sheldon Whitehouse (Interviewee)]

Yep.

[Senator Sheldon Whitehouse (Interviewer)]

On five, four decisions. This is before Scalia left and and before Gorsuch came in. All these 5, 4 decisions, one after another 1, 5, 4 to say 1, 5, 4 decision 1, 5, 4 pro corporate.

[Senator Sheldon Whitehouse (Interviewee)]

Yep.

[Senator Sheldon Whitehouse (Interviewer)]

And what kind of things? Like one of those that I is is mandatory arbitration.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah, they love mandatory arbitration, particularly if they can keep the results secret. Mandatory secret arbitration is the best of all.

[Senator Sheldon Whitehouse (Interviewer)]

I did a lot of hearings on mandatory arbitration because it was really interesting. I remember I had one where a woman was suing a hospital because she didn't get promoted and they had a pattern of not promoting women. So she goes in to do the arbitration and the guy has behind him bookshelves with only folders or net folders. But you know, what are those called? The things that Romney talked about binders.

[Senator Sheldon Whitehouse (Interviewee)]

The medical binder.

[Senator Sheldon Whitehouse (Interviewer)]

Yeah. Well, they had binders from the hospital. That's all it was like we've done. We do the mandatory arbitration for them. I remember another one where this was on sexual assault and I read in the testimony, they said the, in mandatory arbitration on this, the person coming before for the arbitrator prevails 53% of the time. So I asked the guy, like, okay, if you get $5, are you prevailing? And he goes, no. And I said, okay, if you get $50, are you prevailing? He said, no, if you get $500, are you prevailing? He said, so your question basically is at what amount are you prevailing? I went, yeah, what does this mean? They're just so sleazy. And this guy was from the chamber.

[Senator Sheldon Whitehouse (Interviewee)]

And the interesting thing about that, if in this court that is supposedly so deferential to the United States Constitution, is that the United States Constitution actually provides a right of civil jury file. It's called the seventh Amendment. And then along come these judges that are supposedly so loyal to the Constitution and they take away that jury trial right from people. They let corporations who are either their employers or who provide a service to them like the telephone company take away their right of jury trial in the fine print of a contract not negotiated, not capable of being negotiated. And they don't even bother to mention the seventh Amendment. They just don't want to talk about it, don't want to hear about it. That's not a right we care very much about. Our corporate friends don't want to go in front of juries. They really don't like being treated equally in courtroom. They don't like being under oath. They don't like any of that. So by God, we're going to let them all run off to the mandatory arbitration offices instead. And there goes that constitutional right for probably most Americans right now who have lost that in one contract or another.

[Senator Sheldon Whitehouse (Interviewer)]

Oh, and all your phone stuff. And I think I once asked a witness to find the. Can you find the part that says you're waving this.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. On page 17 out of 70 pages that, that are, that are actually not negotiable. It's not like when you sign up for cable service, they sit down and say, okay, now let's go through these proposals we have and you can decide which ones you want, which ones you don't, and we'll come to an agreement. It's totally taken or leave it.

[Senator Sheldon Whitehouse (Interviewer)]

And what other kind of corporate, I mean, pro corporation decisions were made by the court?

[Senator Sheldon Whitehouse (Interviewee)]

Well, part of it is, that is the substance, like the mandatory arbitration, but part of it is the pattern. And that's what I was really surprised by. I started seeing this behavior come out of the Supreme Court and it just got weirder and weirder. And as you recall, I started complaining about it, expressing concerns about it in our caucus lunches, and people were kind of, well, you know, Supreme Court got to give them the benefit of the doubt. They rely on public support. So I thought, okay, well, we're going to have to take a really hard look at this. So I did an article, and my office dug down and we went through all of the five to four cases since Roberts was chief justice where there was a partisan divide five to four, and where the issue was a civil one. And I think there was something like 76 of them. And of those 76, there were 72. Where. And it would be really easy to spot the Republican big donor issue, which side the Republican donors would be on. Really easy to spot. And then we looked at the outcome, and in those 72 decisions, where there was clearly a big Republican donor interest, where the case broke 5 to 4, and where it was partisan, it was 72 to 0. I'll tell you, if you're a lawyer taking a discrimination case or a bias case into court based on statistical evidence, circumstantial statistical evidence, and you can show 72 to 0, that case is settling.

[Senator Sheldon Whitehouse (Interviewer)]

Yeah. So let's talk about ethics, because I. I mean, I. I saw you on an MSNBC show after it came out that Clarence Thomas had both. He was the one vote against allowing Congress to get the materials that were archived. Right. From the White House and regarding.

[Senator Sheldon Whitehouse (Interviewee)]

It was a subject of the January 6th investigation. Yep.

[Senator Sheldon Whitehouse (Interviewer)]

It turned out that his wife, you know, she had texted a number of times to Meadows and others, and, you know, the question is, is there a pro. There seems to be a problem there. Right. And Roberts, he's put the Supreme Court martial on the Alito leak, the leak of the Dobbs decision. But you think that he would have looked into this.

[Senator Sheldon Whitehouse (Interviewee)]

Yep. So there. There are two problems there, if you don't mind me mentioning. One is Thomas came back with the excuse that he and his wife never spoke about her activities related to the insurrection and related to groups involved in the insurrection.

[Senator Sheldon Whitehouse (Interviewer)]

Oh, he did say that.

[Senator Sheldon Whitehouse (Interviewee)]

He said that. Or somebody said on his behalf. It might have been a spokesperson, but that was the. That was the response. He had no idea. He had no idea whatsoever. Two things. First, that is a factual proposition that lends itself to investigation. And part of the problem with the court is that if there's an ethics issue like that, there's no process, there's no complaint box where you can put the question. There's no person whose job it is to look at it. There's no evaluation or evidence that's gathered. At the end of the day, there's no report and there's no public disclosure of what it is that the investigation revealed. So you've got this real procedural collapse on your hands. And the fact that Roberts, having just shown that he could investigate stuff but wouldn't investigate this, created a very unfortunate disparity. So that's one part of the problem. The other part of the problem is that as we went forward, there was another vote that came up with respect to another set of documents, in this case the Arizona effort to overturn the.

[Senator Sheldon Whitehouse (Interviewer)]

Elections, which she also was involved.

[Senator Sheldon Whitehouse (Interviewee)]

Mrs. Thomas had also been in touch with people in Arizona about that. So the same question of her role was in that case. But in the meantime, what had happened is that the press had gotten onto this and all of the information about Ginni Thomas activities was known, including by Justice Thomas, who would read it in the papers just like everybody else did. So by the second vote, which he also didn't recuse on, he also voted on.

[Senator Sheldon Whitehouse (Interviewer)]

Did he vote no.

[Senator Sheldon Whitehouse (Interviewee)]

His defense that he didn't know had been blown up by every newspaper in the country. He did know. And even in those circumstances, he didn't recuse himself. So clearly his excuse that he didn't know was not what was really going on was not the gravamen of why he didn't recuse himself, but he didn't recuse himself even when he obviously did know. The weird thing is that Robert sells himself as the guardian of the Court's reputation as a person who's really concerned about the Court as an institution and a court of law that spends all day looking at whether procedures were properly followed by looking at whether evidence was properly gathered and fairly reviewed, going through all of the sort of nuts and bolts work of legal disputes is willing to live with an ethics regime that has none of the basic elements of fairness, none of the basic elements of propriety, none of the basic elements of accountability. It's an inexplicable failure on the part of the Court and they really barely try to defend it. When you ask them questions, you just get blow. You sort of blow off answers. They won't engage.

[Senator Sheldon Whitehouse (Interviewer)]

Well, they can do that. They can get away with a lot.

[Senator Sheldon Whitehouse (Interviewee)]

Well, we're going to keep coming at them. This is not. This is a long way from over. And I very strongly believe that we can set rules for the Court if it won't set rules for itself, and it's rapidly showing us that it's incapable of setting rules or proper procedure for itself.

[Senator Sheldon Whitehouse (Interviewer)]

They can do things like make a public appearance with McConnell at the McConnell. What is it at the University Institute at the University of Kentucky to say they're not partisan. Okay, now remember that? It was like, yeah, it was like.

[Senator Sheldon Whitehouse (Interviewee)]

Sketch, but it was happening in real life. And they show up at the Federalist Society galas and get feted like returning heroes, you know, standing ovations and you. The whole thing is preposterous.

[Senator Sheldon Whitehouse (Interviewer)]

But they're the Supreme Court and they can do that, I guess.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah.

[Senator Sheldon Whitehouse (Interviewer)]

One last thing is, is Alito's Dobbs decision. What, what did he say? That it had been egregiously decided.

[Senator Sheldon Whitehouse (Interviewee)]

Egregiously wrong. Wrong from its inception. Something he magically managed to never mention as he was asked specifically about that case under oath during his confirmation process. So there was a brief window in time when the egregiousness of the wrong of Roe versus Wade suddenly evaporated for him. And then it must have reassembled itself after his hearing once he was onto the court.

[Senator Sheldon Whitehouse (Interviewer)]

Well, he didn't say. Well, I will say this. It wasn't egregiously wrong. See, that would be lie. Or he could say my opinion changed.

[Senator Sheldon Whitehouse (Interviewee)]

Hold the tape. It was nothing.

[Senator Sheldon Whitehouse (Interviewer)]

He's awful. I mean, just in order, who do you hate the most? I mean, because he's just been so. He's like doing victory laps and shit, you know.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah. But it gives, it seems to give him no pleasure at all. You know, he's, he, he's like a guy who's wanted to do this always and he's been pent up because he didn't have a majority that would deliver for him. And he's been getting angrier and angrier through all these years and more and more self righteous and then finally he's got his gang of six and they go around starting to blow stuff up. And you think at that point he'd be the happiest guy in America because all of these cases that he's hated, he's able to just tear them apart in front of everybody. And instead of being jovial and cheerful and yay, my day has come. He's snarky and he's angry and he's venomous and he's the least gracious in victory of any person I've ever seen. Yeah.

[Senator Sheldon Whitehouse (Interviewer)]

Well, Sheldon, thanks for, for joining me on, on this and thanks for the book. It's really, you know, if you read this book, you me, you'll get depressed a little bit. Well, a lot. No, a lot it's very depressing.

[Senator Sheldon Whitehouse (Interviewee)]

Gotta understand the disease before you can apply the cure. Yeah, I know that.

[Senator Sheldon Whitehouse (Interviewer)]

You're right.

[Senator Sheldon Whitehouse (Interviewee)]

Right.

[Senator Sheldon Whitehouse (Interviewer)]

Oh, what a mountain to have to climb.

[Senator Sheldon Whitehouse (Interviewee)]

Yeah, well, we could have. If we'd been at this 15 years ago, the mountain wouldn't have been quite so high. We came late to the party and now we've got a lot of work to do.

[Senator Sheldon Whitehouse (Interviewer)]

Well, I hope you enjoyed listening. That beautiful music is by Leo Kotke. The great Leo Kotke. I want to thank Peter Ogburn for producing this podcast. Podcast. We'll talk again next week.

[Senator Sheldon Whitehouse (Interviewee)]

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