The U.S. Supreme Court begins a new term amidst a collapse of legitimacy, historic corruption and scandal, conflict of interest, and efforts to obstruct investigations into right-wing billionaire purchasing of influence over the High Court.
The GOP and extreme-right movement and their billionaire backers targeted the federal courts for takeover decades ago. It has been a major part of their strategic objective to attain unbridled and permanent power. Through the work of the Federalist Society and others, these right-wing forces rigged the Court with Justices Thomas, Alito, Gorsuch, Roberts, Kavanaugh, and Barrett, known as the “Federal Society Six.”
Through this judicial coup, the extreme-right Court majority usurped the policy-making role of the elected branches of government, legislating from the bench to undo a century of judicial precedent, including repealing Roe vs. Wade, gutting the Voting Rights Act, weakening labor and environmental protections, and allowing a flood of dark money in politics. Advocates working to protect institutions sacred to Americans warn that even Social Security would be declared unconstitutional if some of the right-wing justices had their way.
The “Federal Society Six” have engaged in a wide range of questionable financial dealings, have failed to disclose matters that should be made transparent, have taken on billionaire benefactors, and generally have lied about all of these matters. The result, of course, has led to a collapse in public confidence in the Court. leading to a collapse in public confidence in the Court.
The latest scandal involves Justice Clarence Thomas, who is already under fire for a long list of corruption scandals. Thomas, a frequent guest of far-right billionaires at the exclusive Bohemian Grove retreat, secretly participated in multiple annual private gatherings of wealthy interests hosted by the Koch Brothers network. Thomas never disclosed his appearances or who paid for his flights, an apparent violation of federal law.
Capturing the Court
Thomas’s appearance at the 2018 Stand Together winter donor summit and at least one other is an extraordinary window into the push by the Koch network to corrupt the High Court. David Koch and Koch Industries, who have a history of business before the Court, is the primary funder of the decades-long scheme of far right-wing billionaires and groups to capture the Court and use that judicial power to override and bypass the other two elected federal branches.
ProPublica’s latest revelation of Thomas’s corruption follows one blockbuster exposé after another of far-right billionaire corruption, especially of Thomas and Justice Samuel Alito. Both are contemptuous of calls for their resignations, to provide full disclosure and adopt a code of ethics, and congressional efforts to investigate and hold them accountable.
Incredibly, the High Court has no code of ethics, even though the rest of the federal judiciary does. The far-right court majority, beginning with Chief Justice Roberts, has fought any suggestion for a code, let alone a procedure to handle judicial complaints or increased Congressional oversight.
Leonard Leo, head of the Federalist Society, arranged Thomas’s appearance at the Stand Together summit. Investigative journalists regard Leo, who figures prominently in the ProPublica exposés, as the architect of the extreme right-wing federal court takeover, including the supermajority on the U.S. Supreme Court.
Along with the Kochs, billionaire Harlan Crow, and Ginni Thomas, wife of Justice Thomas, Leo designed the overall strategy of establishing a far-right network of groups funded by dark money who vet judicial selections and shepherd them through the U.S. Senate confirmation process led by Sen. Mitch McConnell, R-Ky.
Leo and his cronies are also instrumental in identifying cases and when to bring them before the Court, guiding them through the lower courts, and organizing amicus briefs from the right-wing legal community and dark money-funded groups.
And when the case is not there, the extreme-right majority invents a fake one, as it did last term with 303 Creative v Elenis. The ruling “grants a business open to the public a constitutional right to refuse to serve members of a protected class. … Our Constitution contains no right to refuse service to a disfavored group,” wrote Justice Sonia Sotomayor in a blistering dissent.
The Koch-funded far-right network is under investigation by the D.C. Attorney General, including whether funds went to enrich Leo and his cronies or were funneled to Ginni Thomas illegally.
ProPublica also exposed Leo’s instrumental role in pairing justices with billionaire benefactors, who then shower them with money, honorariums, gifts, luxury vacations, and private jet flights. Crow has been Thomas’s principal far-right billionaire benefactor.
Several cases in the Court’s new term stem from extreme right-dominated Fifth Court of Appeals rulings. Upholding them could result in drastic “deregulation of the administrative state,” including one that could limit the authority of the Consumer Rights Protection Bureau. The outcomes could build on the landmark West Virginia vs. EPA, in which the Court limited the ability of the Environmental Protection Agency (EPA) to regulate emissions under the Clean Air Act.
The Court’s top case this term is Loper Bright Enterprises v. Raimondo. The outcome could overturn the landmark 1984 Chevron vs. National Resources Defense Council, which compels federal courts to defer to a federal agency’s interpretation of an ambiguous or unclear statute.
The goal of Loper is to severely limit or strip the authority of federal agencies like the EPA, Securities and Exchange Commission, and Federal Elections Commission to issue regulations in areas ranging from the environment, labor, and consumer protection and transfer their authority to the courts.
The Koch network has long sought to overturn the Chevron decision and specifically block the federal government’s ability to regulate pollution from their fossil fuel empire to bolster corporate profits.
Thomas turnabout
Thomas, who refuses to recuse himself from the case, initially supported the regulatory powers of federal agencies and even authored rulings expanding them. But a decade ago, after years of being corrupted by the Koch network, he began to reverse course and, in 2020, declared he believed Chevron was unconstitutional.
Meanwhile, court ethics watchers are calling for Justices Roberts and Alito to recuse themselves in another significant case, Moore vs. U.S. This case centers on the 16th Amendment and the right of the federal government to tax foreign earnings that corporations don’t distribute to U.S. investors but instead reinvest into the foreign company. According to Elie Mystal, writer for the Nation, far-right billionaires aim to use a favorable ruling by the Supreme Court to “pre-emptively kill the wealth tax,” widely supported by President Biden and Democrats.
Both Roberts and Alito have investments in companies that stand to benefit from a ruling. Corporate and judicial financial disclosures show Roberts and Alito own individual shares in 19 corporations that could see combined tax relief of $30 billion if a Court majority strikes down a one-time corporate tax imposed by the 2017 GOP tax law, according to The Lever.
Killing the wealth tax or severely restricting the federal government’s taxing ability would limit Congress’s power to fund federal programs.
The chief litigant for the law firm representing the plaintiff in the Moore case is David Rivkin. Rivkin authored a Wall Street Journal opinion piece in which he brazenly interviewed Alito. In the interview, Alito “opined” that Congress has no constitutional authority to impose a code of ethics on the Supreme Court or regulate the body in any other way.
Just a month earlier, Alito authored his own WSJ opinion piece pre-emptively trashing the ProPublica exposé of his corruption by Wall Street hedge fund billionaire Paul Singer that appeared the next day. Alito refused to recuse himself in multiple cases involving Singer before the Court.
Sen. Sheldon Whitehouse, D-R.I., and nine other Democrats sent a complaint to Roberts over the shocking violation of ethics of a sitting justice interviewed by an attorney with a pending matter before the Court. The senators called on Alito to recuse himself from the Moore case.
“Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties,” wrote the ten Democrats on the Senate Judiciary Committee.
Rivkin is also representing Leo against attempts by Congressional Democrats to investigate the extent of corruption around the justices and the trail of money to far-right billionaires. Whitehouse accused Rivkin of obstructing the Congressional investigation into Leo’s actions to “facilitate gifts of free transportation and lodging that Justice Alito accepted from Paul Singer and Robin Arkley II in 2008. This violates the Court’s Statement on Ethics by creating an appearance of impropriety.”
The extreme-right judicial “coup” and historic corruption of the U.S. Supreme Court is part of the larger right-wing and fascist GOP assault on constitutional democracy and drive to impose minority rule and a far-right governing agenda opposed by most Americans. It’s yet another reminder of the high stakes in the 2024 elections.
The crisis of democracy and the judiciary calls for a record turnout of the anti-MAGA majority to defeat GOP candidates at every level. By reelecting Biden and Democratic congressional majorities, past achievements can be defended and expanded, the extreme-right Court majority can be challenged, its makeup changed, and the work of judicial reform can begin.
It is not just a tiny minority of extreme right-wing Republican lawmakers who are the problem the nation faces. The entire Republican Party, essentially, is behind the long-term strategy that has turned the Supreme Court into an instrument of the extreme right. It is that entire Republican Party that must go down to defeat if democracy is to be preserved.
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