The Supreme Court has been captured by shadowy right-wing mega-donors. It doesn’t sound like it could be true, but it is. In The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court, Senator Sheldon Whitehouse and Jennifer Mueller put the Court itself on trial and make an airtight case that the integrity of the Court has been sold. For hundreds of billions of dollars.
The Scheme is broken into nine parts, mirroring the phases of a court investigation. Whitehouse exposes the players, the motive, the means, the co-conspirators, the method, the victim, and the results, ending with a rebuttal and a closing argument.
There is a Scheme afoot.
If that sounds dramatic, it should. Because it involves a decades-long effort by a handful of corporate oligarchs to subvert American democracy by capturing the Supreme Court and making it their Court, not our Court. It’s happening right under our noses. And it puts at risk one of our most cherished American principles: equal justice under law.Sheldon Whitehouse, The Scheme, p. 1
The domino effect
If you read my last book review on Bradley Onishi’s Preparing for War, you’ll recall that the current movement of White Christian Nationalism largely got its start as a reaction to Barry Goldwater’s failed 1964 presidential campaign.
If Paul Weyrich had not witnessed Barry Goldwater’s defeat in 1964, he might not have gone on to launch the Heritage Foundation, the American Legislative Exchange Council (ALEC), and the Council for National Policy, which are Christian Nationalist scourges on our nation to this day.How White Christian Nationalism Led to the Insurrection: A Review of Preparing for War
Weyrich was not the only one motivated by Goldwater’s failure into launching an attack on democracy.
Multibillionaire David Koch was a member of the “far-right” fringe who had economically selfish reasons to promote libertarianism. He ran for vice president in 1980, bolstered by the knowledge that he simply had “money to throw at [his] project.” Regardless, because he wanted to get rid of “Social Security, the Post Office, public schools, Medicare, and even federal air traffic control,” he lost miserably. Critically, though,
[The Koch brothers] didn’t go home and sulk. Made confident by the arrogance of wealth, driven by extremist ideology, and spurred by the resentment of political rejection, the Koch brothers had ample motive. Combine that with experience in the devious ways of the international business world, corporate skills of long-term planning and patient execution, and unlimited resources to indulge themselves, and the Koch brothers were uniquely positioned to amplify this long-standing, latent extremist fringe, and direct it in secret, over decades if need be.Sheldon Whitehouse, The Scheme, p. 33
In the coming decades, the Kochs and other billionaires would create dozens of shady front groups and influence court decisions that would allow them to spend and receive stupid amounts of money. But first, let’s talk about the Powell memo.
The Powell memo
Future Supreme Court Justice Lewis Powell wrote his confidential 1971 memo, “Attack on American Free Enterprise System,” at the request of the Chamber of Commerce, who wanted “a secret plan to reassert corporate power in the policy and political arena.” Following some jaw-dropping plans to rewire the national consciousness to look away from rampant fossil-fuel spending
came a section of the secret report titled “Neglected Opportunity in the Courts.” Powell recommended that corporations start “exploiting judicial action” by building a “highly competent staff of lawyers” who could be deployed “to appear as counsel amicus in the Supreme Court” and who could help select “the cases in which to participate, or the suits to institute.” This was, for Powell, an “area of vast opportunity,” that “merits the necessary effort,” as “the judiciary may be the most important instrument for social, economic and political change.”Sheldon Whitehouse, The Scheme, pp. 41-42
In other words,
This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.Powell, Lewis F. Jr., “The Memo” (1971). Powell Memorandum: Attack On American Free Enterprise System. 1.
Sworn in as a Supreme Court justice six months later, Powell was in the position to see his plan through. Today, even without Powell, this runaway train is still barreling through Washington.
A Court to do their bidding
In The Scheme, Whitehouse demonstrates exactly how several court cases affected laws that allowed big donors to anonymously influence politics. Buckley v. Valeo, First National Bank of Boston v. Bellotti, Federal Election Commission v. Massachusetts Citizens for Life, Austin v. Michigan Chamber of Commerce, and Citizens United v. FEC removed limits on “independent” (heavy quotes) expenditures in elections (including executives spending shareholder money) and allowed corporations and nonprofits to directly influence elections.
If that doesn’t alarm you, ask yourself:
If there’s a bill in Congress that affects environmental regulations and an ad comes on TV telling viewers how to think about it, shouldn’t the viewers know if it’s being paid for by ExxonMobil?Sheldon Whitehouse, The Scheme, p. 45
Groups that had existed with the purpose of promoting tobacco usage and fighting against its regulations jumped at the chance to use the Court’s new specially designed loopholes. Their tobacco propaganda had ultimately failed, but maybe their climate denial propaganda wouldn’t.
One of the biggest players in the current “front group archipelago,” Americans for Prosperity, is just a mutation of David Koch’s own tobacco front group, Citizens for a Sound Economy. CSE had been paid by tobacco companies to “[rail] against the EPA’s report on secondhand smoke, FDA efforts to regulate tobacco, workplace smoking rules, tobacco taxes, and lawsuits against the tobacco industry.”
A now-defunct “Annapolis Center for Science-Based Public Policy” took a page from [tobacco front group] TASSC’s book. It was founded by a former vice president of the National Association of Manufacturers—not an environmentally friendly group—to “support and promote responsible energy and environmental health and safety.” But—surprise—it too was a disinformation machine, founded to keep from the public the fact that the people telling them global warming was a hoax were in fact a consortium of major polluters.Sheldon Whitehouse, The Scheme, p. 67
The Federalist Society
Dozens of these donors and their “astroturf” groups come together to fuel Leonard Leo’s group that exists to strip the Supreme Court of its integrity and replace it with a puppet that will cater to their whims: the Federalist Society.
In this web, the Federalist Society’s role is to groom, vet, select, and then—seemingly by any means necessary—appoint judges willing to impose a specific set of political, legal, and economic theories. (No surprise: these theories coincide almost perfectly with the interests of Federalist Society big-money donors. And when they don’t you can guess which gives way.) The Federalist Society hosts the donor-controlled turnstile through which ambitious Republican judges must pass to get to the Court.Sheldon Whitehouse, The Scheme, p. 83
We all know that former president Donald Trump nominated Justices Gorsuch, Kavanaugh, and Barrett—using Leo’s FedSoc list, which Trump publicly bragged about—but Justices Thomas, Alito, and Roberts have been involved with the Society as well. If you’re counting, that’s six of the nine—and all of the conservative—justices.
Whitehouse leaves no stone unturned in his investigation of this undemocratic and unapologetic Court capture, including how judges “audition” to be chosen for FedSoc’s list, how the FBI mysteriously failed to investigate Brett Kavanaugh’s sexual crimes, and how all of these weasels worked together to allow justices to accept bribes from donors (and this was before Alito’s luxury trips with invested billionaires was revealed).
Feigning surprise in a capitalist hellscape
I do have one criticism of The Scheme, and that is this: the word “capitalism” does not appear in this book even once. Not to be a pessimist, but the ultra-wealthy rewriting the rules so that they can get the Senate, the Court, and even the public on their side seems to me like a rather predictable result of late stage capitalism.
Whitehouse does not mention it, but Lewis Powell’s memo repeatedly blames “socialism,” “communism,” “Marxism,” “liberals,” and “the New Left” for the social revolutions and raised environmental concern that are threatening “the system,” which in a footnote he clarifies is also called “capitalism.” Even in his speech about the memo, Whitehouse claims simply that “the report is littered with liberal bogeymen,” from which you might not glean that in only 34 pages, Powell references “The Left” eleven times, “liberal” eight times, “socialism” seven times, “communism” four times, “Marxist” twice, and “fascism” twice—and fascism is always grouped with socialism and communism.
Capitalism is not sustainable, but it is self-sustaining in that those who benefit from the hoarding of wealth will turn the world upside down to keep it that way. Powell writes,
The day is long past when the chief executive officer of a major corporation discharges his responsibility by maintaining a satisfactory growth of politics, with due regard to the corporation’s public and social responsibilities. If our system is to survive, top management must be equally concerned with protecting and preserving the system itself. This involves far more than an increased emphasis on “public relations” or “governmental affairs”—two areas in which corporations long have invested substantial sums.
A significant first step by individual corporations could well be the designation of an executive vice president (ranking with other executive VP’s) whose responsibility is to counter—on the broadest front—the attack on the enterprise system.Powell, Lewis F. Jr., “The Memo” (1971). Powell Memorandum: Attack On American Free Enterprise System. 1. pp. 10-11
Fear of socialism in the United States
It was popular for conservatives in the late twentieth century to rail against communism while the Soviet Union was still around, but Powell’s disgust with socialism was purely American. (I believe it came down to his own fear of a loss of wealth, as was made clear when he mentioned in a footnote that an article on redistributing wealth “should not go unanswered.”) He wrote,
There should be no hesitation to attack the Naders, the Marcuses and others who openly seek destruction of the system. There should not be the slightest hesitation to press vigorously in all political arenas for support of the enterprise system. Nor should there be reluctance to penalize politically those who oppose it.Powell, Lewis F. Jr., “The Memo” (1971). Powell Memorandum: Attack On American Free Enterprise System. 1. pp. 29-30
Ralph Nader was and is an American activist for environmentalism and consumer protection, and Herbert Marcuse was a German-American Marxist and leftist who criticized both capitalism and Soviet Communism. Not to mention that Powell felt specifically threatened by “labor unions” and “civil rights groups” whose success, “often at business’ expense, has not been inconsequential.”
Capitalism working as designed
Given this impassioned and motivated defense of capitalism, one wonders why Whitehouse skirted around the issues that make up the entire foundation of the Scheme. I imagine it was difficult to criticize the Scheme without saying a word about capitalism, when without capitalism, the Scheme would not exist. But it seems that Whitehouse may view capitalism with rose-colored glasses, as he elsewhere writes that Republicans “attempting to prevent financial institutions from allocating capital in accordance with investor preferences and risk management principles” is “anti-capitalist” and “should offend anyone with even a modicum of pro-market sensibilities.” Maybe I’m wrong, but playing dirty and favoring the owning few over the investing many seems like capitalism working as it was designed to.
People like Sheldon Whitehouse argue that America is a great democratic experiment and that this encroaching fascism is un-American. I’m not sure I agree. It bears repeating that the United States was built on land theft, genocide, ethnic cleansing, and slavery. Maybe Thomas Jefferson spouted some pleasant-sounding ideals in between raping his favorite slave, but to me, that’s not the beginning of a utopic democratic experiment. It’s the beginning of a country built on hypocrisy, that has never ceased to say it is one thing while doing the opposite. We say we live in a land of equal opportunity, but we could not be further from it.
America is a capitalist country, and it always has been. Under capitalism, this is the kind of thing that happens. And capitalists have never shied away from disposing of anything that gets in their way.