For years, Democratic senator Sheldon Whitehouse of Rhode Island has been warning about the effects of dark money on American law and politics, particularly at the Supreme Court — a “captured court,” as he calls it, walled off from accountability. Whitehouse has, among other things, proposed a series of judicial reforms that would subject justices to the same ethics rules as the rest of the federal judiciary. Republican opposition means legislative reform is a dead end for now, but the issue has gained new urgency in the wake of revelations that Justice Clarence Thomas accepted lavish gifts from Republican megadonor Harlan Crow without publicly disclosing them. I spoke with Whitehouse about the wisdom of impeaching Thomas, why he believes Chief Justice John Roberts needs to conduct a “proper damned investigation,” and whether tough ethical regulations would actually change much about the hard-right Court.
When Clarence Thomas has been caught up in ethical breaches in the past, his response has usually been silence. This time around, he did issue a statement in which he pledged that, in the future, he’d report the kinds of gifts he received from Harlan Crow. You tweeted, “Just the fact that Thomas felt he had to respond publicly is a tell of the heat they feel.” Is there any real pressure on him at the moment?
I think there is. I think this is an embarrassment for all the other justices. This is an embarrassment for the federal judiciary and for the judges who actually operate under a regime of ethics enforcement. It’s very frustrating and annoying to see the Supreme Court justices, who are supposed to be the judiciary’s exemplars, running around violating rules in ways they know they could never get away with.
I think this pressure from within the judiciary on Thomas — I’m hypothesizing here, but I think that’s one of the reasons that the judicial conference, which is made up entirely of other judges, mostly the chief judges of the 11 circuits, slammed the door shut in their recent ruling on exactly this kind of behavior.
Which is the one he cited when he said he’d be reporting gifts going forward.
Yeah. That’s the one I’ve been banging on them for a considerable period of time to change, and their timing could not have been much better. They brought the new rule out about two weeks before this story blew up.
Let’s say Supreme Court justices had been subject to the same strict enforcement rules as every other federal judge. Do you feel it would have changed anything about the hard-right turn of the court, or is this just about keeping up appearances?
It would be an important but not ultimate answer to the problem of court capture. The role of the dark-money operation around the court is very significant, and it appears often through these luxurious gifts of hospitality, particularly to the right-wing justices. I think Justice Scalia had 80 hunting vacations at fancy resorts, and we only knew of two of them: the one he died on and the one he was on the Air Force Two manifest for. These aren’t just friendly little vacations with your old pal from college. You see Leonard Leo, the billionaire fixer of the court, puffing on cigars in the painting of Thomas. Scalia was surrounded by gun advocates and fossil-fuel types on his trips. I think this has been a real avenue of influence, and to shut it down is important, and I think to send the message to the rest of the judiciary, “Hey, these guys need to behave the way you all do,” is also reassuring.
As shady as Clarence Thomas’s dealings with Crow may be, it seems unlikely that they’ve changed Thomas’s view of the world given how consistent he’s been with his rulings since the early 1990s. Would easing the influence of dark money fundamentally alter the kinds of judges advanced by Republicans, or is the sincerely held ideology of those judges the core issue here?
I would say two things in response to that. One, companionship with big billionaire right-wing interests is not a good thing on its own, but it’s also just one thread in a larger web of influence. We’ve got to keep looking at the disclosure of the front groups’ amici curiae. That’s an issue before the judicial conference right now. You’ve got the problem of the association between judges and advocacy groups like the Federalist Society, which was serious enough that the code-of-conduct committee voted to ban membership from the Federalist Society and then tabled it after pushback. You’re right that this is only one piece in a larger puzzle, but every piece that we can undo is a step in the right direction.
The second point is on scruples. I’ve done a lot of work on the partisan cases that have delivered big wins for right-wing interests. One of the things we found when we looked at those cases, which number six or seven dozen under the Roberts court right now, is that very often — I would say slightly more than half of the cases — the outcome that they get to that benefits the right-wing interest requires violating one of the tenets of judicial conservatism, whether it’s originalism or judicial modesty or respect for states.
Of course, they’d claim it doesn’t actually violate anything.
Of course it does. Look at Citizens United. The only originalism in that decision was in Justice Stevens’s dissent. The fig leaf is a very small one, and the problem behind it is still very visible.
A good visual to imagine there.
You know, to say that they adhere to principle is just factually wrong. They adhere to outcomes.
I just wonder if they would be doing that anyway since they’re so in the tank for one side, ideologically speaking.
They might be, but on the other hand, if you’re ideologically in the tank but you’re not in tune with the latest and greatest in right-wing ideology, and if you’re not entirely clear on what the best way to make a given decision comport with that right-wing ideology is, you can get a little bit sloppy about your task. So when you have front groups by the dozen filing amicus briefs that tell you quite specifically what it is that you need to do, what it is that they want, and then to go ahead and do that, you’re in a much more robust feedback loop with the billionaire enterprise that put you on the court, and you don’t have to guess.
Alexandria Ocasio-Cortez has called for Thomas to be impeached. He would obviously never be convicted in the Senate, where a two-thirds majority is needed. Do you think impeachment would be a wise course of action?
At the moment, it’s not realistic, given what you’ve said. I think the focus needs to be elsewhere. Chairman Durbin has said that the Senate Judiciary Committee will act, so we’ll see where that leads. And a considerable number of us have called on Chief Justice Roberts to, at long last, do a proper damned investigation.
We know that the chief justice can call for an investigation because he did it when he thought some staffer had leaked the Dobbs opinion. They made a hash out of that one, so it’s not the world’s best example in terms of investigating well, but if you look around at the other courts, there are people who investigate allegations against other federal judges all the time.
It wouldn’t be hard to put a group together who could do a proper investigation and come up with a proper report for the chief justice and the world to see. There’s a code-of-conduct committee that you could send the report to and say, “Hey, would this comport with your view of judicial ethics as it’s applied elsewhere in the federal judiciary?” And while that decision might not bind the court, it would certainly rebuke it and steer it back out of harm’s way.
And it would be in keeping with his mission to supposedly keep the court above politics, which is not a successful mission right now, and yet it seems sort of unrealistic that he would do that, don’t you think?
Well, just the fact that we think it’s unrealistic that he would do that is significant in and of itself. There’s no other court in the country where, if something like this came up, we would say, “Wow. How improbable that anybody will ever actually do a real investigation of this, get to the bottom of it, and make out whether or not it’s an ethics violation.”
When you said that Senator Durbin would act, do you have any idea how?
I expect it looks like a hearing because that’s what we do. I think the chairman will announce that when he’s ready, and we’re standing by to be helpful.
If you had your way, what would a restored code of judicial conduct look like?
It would look like what my Supreme Court ethics bill looks like. Dark-money ad campaigns for justices would be disclosed, dark-money front groups that come in as amici — hiding who the real interest is behind them —would have to disclose that. The justices would be bound to follow the ethics code with a proper mechanism of investigation and judgment about compliance. And, ultimately, there would be term limits, so the gamesmanship around timing your retirement and all that can be brought to an end.
Do you see more urgency among your Democratic colleagues about this stuff?
Yes. I think it has grown rapidly in the last few years. I think the Dobbs decision was a clarion call. We’re going to continue to have an uphill struggle against that Republican political machine because the same big donors who ran the court-capture operation for all those years, which Center for Media and Democracy estimated was $580 million operation and which got Leonard Leo a $1.6 billion slush-fund payoff, is also behind the Republican dark-money political spending.
The coordinated right-wing takeover of the Supreme Court has been a signature issue of yours for a long time. Do you feel validated?
I wish I weren’t. I’d like to live in another world where this was not a problem at the Supreme Court, but here we are. You have a captured court that people understand is captured, running amok without recourse.
This interview has been edited for length and clarity.
