Fossil fuel influence on US Supreme Court is pervasive, Whitehouse says

A series of revelations in recent weeks about Supreme Court Justice Clarence Thomas accepting lavish vacations and private-school tuition for a relative from a real estate magnate — who also purchased the house where Thomas’s mother lives — has brought concerns about the corruptibility of the court front and center. But doubts about its impartiality aren’t new. During the confirmation hearing of now-Justice Amy Coney Barrett in 2020, Senator Sheldon Whitehouse, a Democrat from Rhode Island and a member of the Senate Judiciary Committee, argued that corporate money — particularly oil money — had reshaped the high court. He went on to write a book on the subject, released late last year, called “The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court.” Whitehouse and co-author Jennifer Mueller argue that more than the ethical lapses of individual justices, the court’s lack of transparency and accountability has placed it in thrall to moneyed special interests. The motives of Harlan Crow, Thomas’s benefactor, may be hard to ascertain, but the anti-regulatory agenda of the oil and gas industry is clear. It got a win last year with the Supreme Court’s decision in West Virginia v. EPA, which cemented a new standard — the major questions doctrine — that restricts the rulemaking abilities of government agencies without Congress stepping in. Environmentalists are now bracing for a ruling in Sackett v. EPA, which could curtail the EPA’s authority over wetlands, limiting the reach of the Clean Water Act. And it could get worse for regulators. On May 1, the court agreed to hear a case that challenges what’s known as Chevron deference, a legal principle (named for a 1984 case involving the company) holding that courts should defer to agencies’ technical expertise to interpret statues that are ambiguous. West Virginia v. EPA was widely seen as an indication that the current court, with a 6-3 conservative majority, is hostile to the principle. Whitehouse writes in the book that businesses spending money to try to influence the Supreme Court can be traced back to 1971, when Lewis Powell, not yet on the court, wrote a secret strategic memo for the US Chamber of Commerce on how big companies could reassert power over society. Quietly, money went to fund so-called independent grassroots organizations with often misleading names, like The Advancement of Sound Science Coalitions (TASSC). Funded by Philip Morris, TASSC called EPA’s decision to classify secondhand cigarette smoke as harmful “junk science.” As well as lobbying Congress, the groups file a sea of amicus briefs on cases in front of the court. These astroturf groups were super-juiced by Citizens United v. FEC, the 2010 decision that allows corporations to spend unlimited money in elections. Then there’s the Federalist Society, a powerful conservative legal organization. It has been so effective at building a judicial pipeline that Republican administrations have largely outsourced to it the job of screening and selecting judges. (Liberals have their own group, the American Constitution Society, but it has been far less successful at building a pipeline and an influence operation.) Donors to the Federalist Society have included not just Harlan Crow but Charles and the late David Koch, whose family fortune comes from oil refineries and has supported an extensive network of political groups and think tanks on the right. The Charles Koch Foundation gave money to the law school at George Mason University, which forwards judicial theories that support the dismantling of administrative laws. Whitehouse reintroduced a bill in February to mandate a binding code of ethics for the court and strengthen disclosure and recusal rules. “The Thomas scandal is a scandal in itself, but it is also a window into the billionaire-funded scheme” of court capture, he said this week. Before the revelations broke, he talked to Bloomberg Green about his book. (This interview has been edited for length and clarity.) Q. Briefly, describe the scale of efforts to influence the court.

A. The first thing to understand is that this is not a conservative court, it’s a captured court. The second is that the effort to capture the court was a significant one. People who track it estimate that more than half a billion dollars has gone into the effort. And the spider at the center of the web was just given a $1.6 billion slush fund to add to those resources. [Whitehouse refers here to a $1.6 billion donation given last year to a new conservative nonprofit run by Federalist Society Co-Chairman Leonard Leo.]

The third piece is that a lot of the way this was done resembles the way intelligence agencies operate covertly in other places. This just happens to be the fossil fuel industry and other big corporate forces operating covertly in and against their own county. Q. Right in the first chapter you mention climate denialism.

A. The International Monetary Fund estimates we subsidize fossil fuel in America over $600 billion dollars annually. So with stakes like that, the motive for the fossil fuel industry to spend virtually unlimited amounts of money is enormous. And given their reputation, the motive for them to figure out how to spend anonymously is equally enormous. I came to this after having done a lot of work digging into climate denial. When the court’s behavior started to look weird and I started to look more into the court capture operation, I began to see an enormous amount of overlap between the groups and the individuals who were involved in climate denial and the groups and the individuals who are involved in court capture. Q. How much of this money is coming from fossil fuel interests?

A. A lot of it flows through dark money channels to get to the places where people can see it land, so it can be a little hard to trace it to its origin. But if you look at the motives involved, and if you look at the sort of trajectory of behavior, I would be prepared to make a pretty big bet that at least two-thirds of it is fossil fuel money. Q. How is this playing out in front of the court?

A. There are decisions like West Virginia v. EPA, which attacked previous climate regulation and introduced the major questions doctrine to cast a shadow over all regulatory agencies. And that broader anti-regulatory doctrine will be expanded. Q. It’s a pretty dark to picture you paint. Is there any way back?

A. I think it’s either going to take a real epiphany moment for several of the Supreme Court justices to decide that, even though they got there as toadies for the capture movement, they’re going to stand up and be more than that. Or it’s going to take legislation that changes the composition of the court.