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

A judiciary independent of the Nation … can turn its guns on those it was meant to defend.

—THOMAS JEFFERSON

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.

The Scheme has penetrated deeply into all of our federal courts, but its prize is the Supreme Court. The buck stops, as they say, with the Supreme Court: there is no higher authority that can be appealed to once it has issued a constitutional decision, all roads of review lead to the Court, and escalating gridlock and dysfunction in Congress hamper legislative correction when the Court undoes or rewrites a law. Despite all this power, remarkably, no Supreme Court justice, conservative or liberal, is bound by the judicial code of ethics that constrains all other federal judges.

Because its actions are essentially unreviewable and its members serve for life without having to answer to the public, the Supreme Court has the power to overturn precedent, ignore evidence, and reshape the law, immunized from electoral consequence. In case after case, this is exactly what the Court under Chief Justice John Roberts has done. In literally dozens of partisan decisions that ignore both precedent and principle, the Roberts Court has advanced a far-right agenda that is deeply out of touch with the will of most Americans—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.

The path to this point was not politics as usual. Set aside Mitch McConnell’s unconscionable refusal even to hold a hearing for Merrick Garland, President Obama’s nominee to fill the seat vacated by Justice Scalia’s death. Set aside the troubling non-investigation by the FBI into the allegations about Brett Kavanaugh. Set aside the unseemly and unprecedented rush to fill Justice Ginsburg’s seat while voting in the 2020 election was under way across the country. Those actions were viscerally enraging, but they’re not as sinister as the millions of dollars of dark money that flowed into campaigns and political coffers to secure the confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They’re not as dangerous as President Trump’s public “insourcing” of a private organization, the Federalist Society—also funded by dark money—to name, vet, and approve his judicial nominees. And they’re not as alarming as the millions—likely billions—of dollars in dark money that corporate oligarchs have spent for decades to cook up and push fringe legal theories that undermine even the federal government itself.

A handful of Republican Supreme Court justices opened the floodgates to this dark money, and the donors who got them there have been rewarded handsomely. A single anonymous donor spent more than $17 million in both the Gorsuch and the Kavanaugh confirmation battles to secure the nominee’s ascension to the Court (and in a sign of how broken our disclosure system is, we will likely never know who the donor is or what business he or she had before the Court—nor do we yet know what money was spent on the Barrett confirmation). All told, researchers have tracked at least $580 million spent by people who don’t want you to know who they are, but who are hell-bent on remaking the federal courts. Over half a billion dollars is a massive investment.* Who was paying, and what did they think they were getting for their money?

This is the Scheme: a decades-long, behind-the-scenes manipulation of our political and justice systems to capture our courts—especially the Supreme Court—as a way to control the future of our democracy.

The trail left behind by the Scheme can be viewed the way a prosecutor considers evidence of a crime. Was there a motive? Were the means available to do the deed? Was there a plan, and a method to execute the plan? Were there efforts at secrecy and subterfuge? At the end of the day, were there proceeds of the crime, and who ended up benefiting from those proceeds?

I didn’t set out looking for a scheme. In the beginning, I was simply trying to understand an apparent paradox: why, as science established ever more conclusively that climate change presents a clear and present danger to our way of life, did Republican senators increasingly deny the data and refuse to support commonsense policies to limit fossil fuel emissions? After all, not long ago Republicans prided themselves on being the party of facts and figures, the party whose president established the Environmental Protection Agency in 1970.

I came to the Senate in 2007. In those first years, climate change was a bipartisan concern. At least three strong bipartisan climate bills were kicking around in the Senate, and John McCain (who was to become a dear friend) had a strong climate platform in his 2008 Republican presidential campaign.

Then in January 2010 all that bipartisanship stopped, as if a switch had been turned off. Climate progress died. The sudden shift came immediately after a bare majority of Republican-appointed justices set loose unlimited political spending in the Supreme Court’s disastrous Citizens United decision.

Before joining the Senate, I’d spent decades as an attorney, including as Rhode Island’s U.S. attorney and attorney general. I’d been around politics a while—investigating political crimes, working in political campaigns, negotiating political deals, understanding political institutions and their norms and rules, and seeing human behavior in the political ecosystem. I’d learned that when I saw people acting in a way that didn’t make sense, I should look offstage to see who was pulling their strings.

So to understand this paradox, I began to “follow the money.” I discovered a network of trade associations, think tanks, front groups, and political organizations acting in concert to deny climate change. It was hard to discern the true sources of funding for this apparatus, in part because my Republican colleagues blocked laws and regulations that would reveal the donors—and in part because an increasingly complicit Supreme Court let dark money flow. But year after year, researchers and investigative reporters painstakingly dug through paper records to connect the dots.

A picture began to emerge. Supposedly independent organizations were revealed to have overlapping directors, staff, and even locations. The web of groups appeared to be funded and directed by a small group of radical right-wing billionaires. And it had purposes beyond just climate denial.

I don’t say “radical” lightly. I don’t know how else to describe a philosophy that elevates a corporation’s “freedom” to pollute over the freedom of everyone else to breathe clean air and drink clean water, that seeks to replace trial by jury with a private process funded by the very corporations whose actions are being challenged (guess how often the little guy wins), or that actively works to squelch public participation in the world’s greatest democracy.

I first reported on what I had learned in my book Captured, which I finished just weeks after the 2016 election. This current book isn’t about Donald Trump, but let’s just say nothing that happened in our agencies or in Congress during the Trump years should have surprised anyone who’d been watching dark money operate in Washington. The only thing surprising was how much worse things got, and how quickly, and how badly we had overlooked the aim of all these machinations to install reliable, reactionary policy agents on the Supreme Court.

In the Senate, not much happened on the legislative front during the Trump years. Even though the House sent us hundreds of bills, most of them bipartisan, Senate Majority Leader Mitch McConnell sent them to his legislative graveyard. His goal was not legislating. His single focus was to appoint as many judges to the federal bench as possible, even if that meant violating Senate norms and confirming nominees rated “unqualified” by the nonpartisan American Bar Association.

By the time President Trump left office, the Senate had confirmed 234 judges to lifetime appointments—more than a quarter of the federal judiciary and nearly a third of the active federal appellate bench. The trophies included three seats on the U.S. Supreme Court—for Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—shifting what had been a balanced 4–4 conservative–liberal Court (after Justice Scalia’s death) to an activist 6–3 Court, likely for most of our lifetimes. Veteran Washington Post reporter Ruth Marcus explained the impact of this shift at the start of the Court’s 2021 term:

A five-justice majority is inherently fragile. It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps.

A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.

On the current court, each conservative justice enjoys the prospect of being able to corral four colleagues, if not all five, in support of his or her beliefs, point of view or pet projects, whether that is outlawing affirmative action, ending constitutional protection for abortion, exalting religious liberty over all other rights or restraining the power of government agencies.

A six-justice majority is emboldened rather than hesitant; so, too, are the conservative advocates who appear before it. Such a court doesn’t need to trim its sails, hedge its language, or abide by legal niceties if it seems more convenient to dispense with them.²

As I watched Senate rules and norms bent and broken in the rush to appoint Trump judges—and especially to rig the Supreme Court—I realized that the Supreme Court wasn’t just a target of the Scheme; it was enabling the Scheme. There was a feedback loop between the Scheme and the Court. And my heart sank to realize that if the rightwing corporate oligarchs succeeded in capturing the Court, the results could forever damage our American republic, its integrity, and its principle of majority rule. They weren’t just in it to win cases; they were out to change America.

This is a serious charge, and I do not make it lightly. I make the same request of you that lawyers make to men and women of the jury: that you set aside your preconceived notions, consider the evidence, and draw reasonable inferences. Decide for yourself if my alarm is justified. Look at the patterns of behavior, including well-documented previous efforts by corporate powers to “capture” regulatory agencies. Look at hard black-and-white facts and figures measuring the tsunami of dark money that gushes into our politics and flows around the Court. Look at what my Senate colleagues and I have witnessed firsthand over the last several years. Some of the evidence is what in court we would call “rebuttal,” because it refutes the explanation that what’s going on at the Court is just a difference of opinion over legal doctrines or principles, or that both sides are playing the same game.

Think of me as a prosecutor presenting my case. Or, if Law & Order isn’t your thing, consider me your field biologist, bringing you a report from my political ecosystem. A hunter can read things in the woods that a city kid doesn’t notice happening, and a city kid can read what’s going down on the streets where a hunter from the woods would be clueless.

The classic film The Usual Suspects features the memorable line “The greatest trick the devil ever pulled was convincing the world that he didn’t exist.” The Scheme would love you to think it doesn’t exist. But I have found clues and made deductions; I invite you to examine them with me. (If there was a silver lining to President Trump’s election, it was that it threw the Scheme into high gear, churning up a lot of nasty stuff—including considerable evidence of its existence.) Sometimes a clue will be no more than weird and inexplicable behavior, or a hypocritical reversal, or an action against apparent interest, or something conspicuously hidden. Sometimes there’s a surprising admission, and sometimes you can follow the money. The story became clear to me as I put the pieces together. My goal here is to help you connect the dots, so you too can see what I see.

Because of the secrecy of the Scheme, much of the evidence I will provide is what a court would consider “circumstantial.” Here is what federal courts tell juries about circumstantial evidence: “Circumstantial evidence is the proof of a series of facts that tend to show whether the defendant is guilty or not guilty.”³ Juries deduce what is logical to believe from those facts. Juries are told: “The law makes no distinction between the weight to be given either direct or circumstantial evidence. You should decide how much weight to give to any evidence.” Circumstantial evidence is valid evidence. Indeed, courts also instruct juries that they may draw reasonable inferences. An example often used in jury instructions is someone coming in from outside closing up a wet umbrella. As a juror, you are entitled to infer that it’s raining out, even if you can’t see rain falling. It’s the reasonable inference.

As you consider what I have seen and what I have learned, consider also that the law allows a judge, when someone hides evidence, to instruct the jury that they may assume the worst about the hidden evidence. A jury may assume that the party hiding the evidence failed to produce it because the evidence was inculpatory, harmful to that party’s case. As you consider the rivers and streams of dark money flowing, ask yourself why the donors seek anonymity, and why the front groups need to hide their donors. In baseball, ties go to the runner; in politics, secrecy should cut against anonymous donors and their dark-money organizations.

Let me tell you what this is not about.

This is not about abstract arguments over arcane legal doctrines or principles. In fact, the “Roberts Five” (now Six) have repeatedly abandoned “conservative” legal principles to reach politically desirable outcomes.

It’s not about hypothetical harms. The results of the Scheme’s success have real-world impacts in the lives of regular people, of workers and consumers, making it harder both to vindicate their rights and to trust a system increasingly rigged against them by shadowy forces.

Nor is it about electoral politics. Yes, I’m a Democrat and speak in political terms, but the Scheme to harness the judiciary is not truly about Republicans versus Democrats. This is rather about deep-pocketed, anti-democratic, private forces out to rewrite the laws and the Constitution to their private advantage. They know that a captured Court can interpret laws and the Constitution favorably to them, and do so without electoral consequences. Yes, there are Republicans who are willing henchmen in this Scheme, but they are agents, not principals. To find the principals, you have to look for the big donors behind the curtains. I certainly hope that the Grand Old Party can find a way to escape the destructive influence of these secretive donors, but I confess I doubt it. The lure of unlimited political dark money is too attractive.

And this is not a jeremiad against corporations (though I do not doubt that behind a lot of this dark-money smoke and mirrors is likely corporate-powered, and particularly fossil fuel–powered). The corporate form may well be the greatest wealth-generating invention in human history. Economically, it is without peer in the way it allocates risk, aggregates capital, and focuses economic effort. Many corporations, in both the public and the private sectors, are a blessing and a boon to their employees and their communities. They are engines of economic advancement.

But corporate power creeping into our politics is different, and corporate power creeping in secretly is … well, creepy. Corporations are different—in purpose, life span, and interests—from us individual human citizens granted rights under our Constitution and Bill of Rights. America is a country of “We, the People,” not corporations. Our Founders foresaw no role for corporations in the political body they were creating, and corporate political influence in American democracy comes at our peril.

To understand how dark-money forces have remade our courts and weakened our democracy, look no further than the Supreme Court’s current membership. All six of the conservative majority are affiliated with the Federalist Society, a dark-money group that played an oversized role in indoctrinating, grooming, auditioning, and selecting justices for the Court and in shaping what they do there. Five of those six were confirmed to lifetime appointments on our highest court by such a scant Senate majority that the senators approving their confirmation represented fewer Americans than the senators who opposed their confirmation. These justices embody minority rule.

The results haven’t just been a disaster for democracy. They have hollowed out the independence of our once-vaunted court system. I have filed more than a dozen “friend of the court” briefs in the Supreme Court in recent years, trying to alert the justices to the dark-money forces that are funding coordinated litigation efforts and creating procedural “fast lanes” around regular litigation procedures. I have flagged the risk to the Court itself if it continues to place its thumb on the scales of justice for the benefit of powerful interests. I have reminded the justices of the “elemental tension” in history between those powerful interests and regular, normal people.* The influencers are a class that occupies itself with favor-seeking from government and wants rules of engagement that make government amenable to its influence; regular, ordinary people mostly just want a government that can and will resist that special-interest influence.

This tension is not new. A hundred years ago, the “influencers” seeking to manipulate the political process represented mills and railroads. A thousand years ago, they were feudal barons and greedy courtiers. Today they are major players in the financial, pharmaceutical, insurance, technology, and fossil fuel industries. The players may have changed, but the game’s the same. And no player today is more pernicious than the fossil fuel industry (more on that later). Now, as always, the last thing the big influencers want is a robust, functioning government that actually honors the will of the people. Instead, they want power, and they want it without public accountability.

Sadly, research confirms that they have been wildly successful. According to a recent study by professors at Princeton and Northwestern Universities, “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.”⁵ And polling shows that regular working people now see their democracy failing to work for them. People on both the right and the left “generally agree that people like them, working people, the poor, and small businesses don’t have enough power in Washington, and that political lobbyists, Wall Street, large businesses, and the wealthy have too much influence.”⁶ By a margin of seven to one, they believe that the Supreme Court will back big business over an individual, rather than vice versa.⁷ The win rate of corporate interests before the Roberts Court confirms their intuitions.

My goals in this book are to create a historical record of what’s gone haywire, to issue a wake-up call about the sordid role of dark money in our courts and our democracy, and to make the case that the situation merits alarm and correction. Truly, our present Supreme Court is The Court That Dark Money Built. The forces behind that dark money built it for a reason.

1. *The Washington Post first estimated the number at $250 million dollars; in my Judiciary subcommittee hearing, Center for Media and Democracy’s Lisa Graves raised the estimate to $400 million; on March 22, 2022, upon further research, Graves raised the estimate to $580 million.¹

2. *I have invoked this phrase in brief after brief that I have filed with the Court. Here is how colleagues and I expressed the point in our brief in Cedar Point Nursery, an anti-union case:

We remind the Court again of the elemental tension we live with in politics and government between two classes of citizens. One is an insider influencer class that occupies itself with rent-seeking from government, and desires rules of political engagement that make government more and more amenable to its power and influence. The second class is the general population, which has an abiding institutional interest in a government with the capacity to resist that special-interest influence. This is a centuries-old tension.⁴