The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court

by Sheldon Whitehouse, Jennifer Mueller

Overview

“A damning investigation of dark money by a senior member of the Senate Judiciary Committee” (Kirkus Reviews) with a new preface on recent disclosures about efforts to influence the Court

“There’s no senator I can think of who’s done more sleuthing to figure out the money trail in American politics, particularly as it affects the courts.”—Jane Mayer, author of the national bestseller Dark Money

As the story of Supreme Court malfeasance and ethics violations repeatedly makes front-page news, the paperback version of The Scheme comes at a time of crisis for the American judiciary.

Following his book Captured on corporate capture of regulatory and government agencies, and his years of experience as a prosecutor, Senator Sheldon Whitehouse, whom Senator Elizabeth Warren calls a “a powerful voice in defending our American democracy against the relentless, pervasive—and often hidden—power of corporate special interests,” here turns his attention to the right-wing scheme to capture the United States Supreme Court. Whitehouse chronicles a hidden-money campaign using an armada of front groups, helped by the infamous Citizens United Supreme Court decision, employing the Federalist Society as an appointments turnstile, and with the same small handful of right-wing billionaires and corporations enticing the Senate to break rules, norms, and precedents to confirm wildly inappropriate nominees who would advance their anti-government agenda.

Now available in an affordable paperback edition with a new preface addressing the Reverend Schenck disclosures about politicking the justices and Justice Thomas’s recently disclosed conflicts of interest, The Scheme offers what Kirkus Reviews calls “a maddening indictment of a corrupt and corrupted judiciary.”

Product Details

ISBN-13:	9781620978344
Publisher:	New Press, The
Publication date:	10/10/2023
Pages:	320
Sales rank:	41,089
Product dimensions:	5.20(w) x 8.00(h) x 0.90(d)

About the Author

Sheldon Whitehouse represents Rhode Island in the U.S. Senate. He has served as his state’s United States Attorney and as the state Attorney General, as well as its top business regulator. The author of Captured and The Scheme (both from The New Press), he lives in Newport, Rhode Island. Jennifer Mueller is a writer based in Washington, DC. She has worked on issues related to campaign finance and political participation as an attorney, academic, and consultant for more than twenty years. She is the co-author (with Senator Sheldon Whitehouse) of The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court (The New Press).

Table of Contents

Introduction 1

Part I Behind the Scheme

Chapter 1 Climate Denial, Regulatory Capture, and Covert Ops 13

Chapter 2 Of Courts and Corporations 19

Part II Motive

Chapter 3 Of Social Gains and Election Losses 29

Part III Means

Chapter 4 The Plan: The Powell Memo 39

Chapter 5 Building the Influence Machine: Campaign Finance Cases 44

Part IV Co-conspirators

Chapter 6 Mercenaries, Fringe Groups, and Lobbyists 61

Chapter 7 The Front Group Archipelago 65

Chapter 8 Super PACs, 501(c)s, and Corporate Shareholders 74

Part V Method

Chapter 9 The Federalist Society Turnstile 81

Chapter 10 The Doctrine Factory and Casting Call 93

Chapter 11 The Senate Conveyor Belt 103

Chapter 12 Plaintiffs of Convenience and Friends of the Court 121

Part VI A Susceptible Victim: The Compromised Court

Chapter 13 Ripe for Capture 137

Part VII Payday: The Captured Court

Chapter 14 The 80 (aka The Prize) 155

Chapter 15 Cases Controlling the Political Process 160

Chapter 16 Cases Protecting Corporate Interests 172

Chapter 17 Cases Restricting Civil Rights 181

Chapter 18 Cases Advancing a Far-Right Social Agenda 185

Part VIII Rebuttal

Chapter 19 So-Called Conservative Principles 193

Chapter 20 The Shadow Docket 213

Part IX Closing Argument

Chapter 21 The Scheme 219

Acknowledgments 227

Appendix A "The 80": Decisions by the Roberts Five, 2005-2019 229

Appendix B Amicus Briefs Filed by Senator Sheldon Whitehouse 243

Appendix C Whitehouse Brief Appendix: Overlapping Amici Funders in Seila Law 247

Appendix D Wharton Analysis of Corporate Funding Disclosure 249

Notes 251

Index 275

Editorial Reviews

08/29/2022

Rhode Island senator Whitehouse (Captured) delivers an alarming if familiar account of efforts to install conservative judges on the Supreme Court and the federal judiciary. Behind this scheme, Whitehouse alleges, are “a handful of corporate oligarchs” who paved the way for the Supreme Court to advance a “far-right agenda” that includes “unleashing massive amounts of dark money, impeding citizens from voting, allowing corporations to dodge lawsuits and liability, undermining civil rights, and denying individuals access to juries.” Whitehouse details how the Court’s 2010 Citizens United decision kicked the conservative judicial movement into high gear by allowing anonymous groups to spend “unlimited money” to promote judicial nominees who would be willing to gut federal regulatory standards. The Federalist Society, a conservative law group created in the 1980s as a “counterweight to what viewed as liberal orthodoxy at law schools,” became a launching pad for “proven conservatives” to reach the federal bench; Whitehouse suggests that the Koch brothers only dropped their objections to Donald Trump’s presidential candidacy when he put Federalist Society “fixer” Leonard Leo in charge of identifying Supreme Court candidates. Though Whitehouse gathers copious evidence and strikes a fiery tone, he doesn’t break new ground. This polemic works best at establishing its author’s partisan bona fides. (Oct.)

Publishers Weekly

Praise for The Scheme:
"Chapter and verse on how the U.S. Supreme Court was ‘captured.’"
—The Boston Globe

“An alarming . . . account of efforts to install conservative judges on the Supreme Court and the federal judiciary. . . . Whitehouse gathers copious evidence and strikes a fiery tone.”
—Publishers Weekly

“A damning investigation of dark money by a senior member of the Senate Judiciary Committee.”
—Kirkus Review"

"A harrowing account of how right-wing billionaires and business interests have worked to capture the American judiciary—all the way up to the Supreme Court—to create an American plutocracy. Anyone who cares about the future of American democracy—indeed, the future of America, writ large—needs to read this book."
—Naomi Oreskes, professor of the history of science, Harvard University, and author of Merchants of Doubt

From the Publisher

2022-08-31
A damning investigation of dark money by a senior member of the Senate Judiciary Committee.

The scheme of Sen. Whitehouse’s title concerns “regulatory capture,” in which a business infiltrates a government agency to undo any efforts to make that business obey the law. “A classic response by regulated entities has been to try to ‘capture’ the agency meant to be overseeing them,” he writes, and the practice has now been extended to wholesale “agency capture.” In this scheme, the federal court system is an object of capture, which is why it should come as no surprise that wealthy businesses and individuals spent millions of dollars to ensure that Donald Trump’s three Supreme Court appointees made it to the bench. The Founding Fathers, Whitehouse writes, “did not intend courts as an anti-majoritarian back door for billionaire anti-government donors frustrated that the public hates their ideology”—but that’s exactly where we are. The author traces the origins of this capture movement to Robert Bork’s unsuccessful Supreme Court bid during the Reagan administration, when conservatives devoted their energies to placing like-minded judges throughout the federal judiciary. One strong instrument of capture came with the Citizens United decision, which declared that corporations had individual rights; one strong instrument to curtail this capture, which Whitehouse has championed, would require disclosure of any campaign contribution of more than $10,000. “No surprise,” he writes, “Republican Senators have blocked it from becoming law.” Yet another instrument of capture is the appointment of individuals to legal positions even though the legal community at large has rated them to be unqualified, without—as in the case of Brett Kavanaugh—minimal due diligence. We don’t know all there is to know about the scheme, Whitehouse concludes in this closely reasoned argument, adding, “I expect history will dig out those sordid details.”

A maddening indictment of a corrupt and corrupted judiciary.

Kirkus Reviews