The giant U.S. scandal we don’t talk about | Will Bunch Newsletter

It seems fitting for the disorienting year that was 2022 that it’s ending — for me, anyway — before you know it. Thanks to my old age and an enormous bank of vacation time, this is my last newsletter (or column, barring another coup) until Jan. 3, 2023. I end this year with a vague and unfamiliar feeling of hope about our body politic after the midterm elections, yet also with nagging dread. How about you?

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There were a couple of notable things about a hunting trip that the late Supreme Court Justice Antonin Scalia, conservative lion of the American judiciary, took to a West Texas ranch in February 2016. The most famous, of course, is that Scalia abruptly dropped dead on this outing, triggering the succession drama on Capitol Hill that allowed then-Senate leader Mitch McConnell to prevent Barack Obama from filling the vacancy.

But the hunting trip was also one of many — 80 in all, according to a new book on corruption and the Supreme Court co-authored by Rhode Island U.S. Senator Sheldon Whitehouse — that Scalia took while a Supreme Court justice. The junkets were paid for by other people, but in most cases we don’t know who those people are, thanks to lax disclosure requirements.

“We know about two,” Whitehouse told an audience who came to the University of Pennsylvania on Friday for an event around his book — The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court, co-written with Jennifer Mueller. The event was sponsored by Penn’s new Center for Science, Sustainability & the Media.

On his last trip in 2016, Scalia stayed for free in a lodge owned by a businessman who’d just had a matter before the High Court. And a 2003 duck-hunting trip on private jets with Vice President Dick Cheney — when environmentalists were suing Cheney over his secret energy plan — became front-page news when Scalia turned up on the public manifest. The funders of the other 78 hunting junkets remain a mystery.

For Whitehouse, the special access that Scalia gave to millionaire benefactors and a friendly White House were just one piece of the much broader “scheme” that frames his book — a years-long, $580 million stealth campaign by far-right activists and their deep-pocketed allies to place like-minded jurists throughout the federal judicial system, especially the Supreme Court, and to also lobby those judges on their pet causes.

The fruits of that effort became obvious in 2022, when the High Court tossed out a half-century of reproductive rights in overturning Roe v. Wade, while imposing new roadblocks on federal regulation around climate change. (The nexus of political “dark money,” the court, and climate policy is why the event was hosted at the new center launched this year by renowned climate scientist Michael E. Mann.) Whitehouse noted that these controversial rulings are imposing policies opposed by a majority of American voters.

The conservative dark-money scheme to name and influence lifetime judges “has been to accomplish things that they failed to accomplish in the democratic process of government,” Whitehouse said. “So this is an end run ... to oppose things with the one branch of government that is not accountable to the popular will of the people.”

The timing for Whitehouse’s tome could not have been better. Recent disclosures about the right-wing wining and dining of Justice Samuel Alito — author of that June decision that overturned Roe — and Justice Clarence Thomas’ refusal to recuse himself from Jan. 6-related cases despite his wife’s involvement in efforts to overturn Donald Trump’s 2020 defeat have highlighted a steep drop in public trust of the Supreme Court.

Just this week, the lack of any ethics code for the nine justices was again flaunted by Justice Brett Kavanaugh when he attended a holiday party with right-wing political players like Rep. Matt Gaetz and former Trump aide Stephen Miller, both tied to recent criminal probes.

“As its peculiar behavior in recent years begins to pile up, it’s becoming more apparent that the checks and balances that apply to me as a senator, to senior members of the executive branch, and to other federal judges don’t apply to the Supreme Court,” Whitehouse — a white-haired ex-federal prosecutor and frequent guest on cable news — told his Penn audience. He expressed hope that disgust over the High Court’s scandals from the Judicial Conference of all federal jurists — who do have a code of ethics — could build pressure for real reform.

But Whitehouse’s main focus has been on cutting off the stealthy spigot of dollars — such as the estimated $10 million to $15 million that the right-wing Judicial Crisis Center spent boosting the nomination of Justice Neil Gorsuch — that has financed the conservative capture of the High Court. His solution is a bill called the DISCLOSE Act, which would force dark money groups behind super PACs or heavy spending for or against a federal candidate to reveal spending greater than $10,000. It was blocked in September by a unified GOP filibuster.

That’s hardly surprising given the role that dark money played in propping up Republican candidates in the 2022 midterms. Said Whitehouse: “It’s like a deep-sea diver being dependent on the air hose coming down from the mother ship.” And the defection of Arizona Sen. Kyrsten Sinema — besotted by corporate and lobbyist donations — from the Democratic Party now makes it hard to imagine passage of the DISCLOSE Act by the new Congress.

That is quite unfortunate, because the buying of the Supreme Court is truly the biggest scandal we’re not talking about right now, and a key driver of the broader breakdown of American democracy. How we can create an irresistible force to vastly reform the decrepit and corrupt federal judiciary and stop the curse of secret billionaire cash — when the scheme to thwart such a force is an immovable object — is the Catch 22 of our national decline.

Question: What will the fallout from the [Mark] Meadows text messages be? Any chance some of them could be denied a seat in Congress for participating in insurrection? Will Dems have the courage to try unseating them? — Via Unpack the Court! (@rjmhudson) on Twitter

Answer: The website Talking Points Memo on Monday night began releasing a series of damning texts regarding the Jan. 6 insurrection to and from Mark Meadows, Donald Trump’s chief of staff at the time. The first batch involved texts to Meadows from some 34 members of Congress; perhaps the most incriminating came from previously obscure South Carolina Rep. Ralph Norman who told the Trump aide three days before President Biden’s inauguration that “Our LAST HOPE is invoking Marshall (sic) Law.” Pennsylvania Rep. Scott Perry urged a “cyber team” that would seize voting machines. The problem here is while multiple members of Congress were clearly involved — deeply, in a few cases — in the coup plot, Capitol Hill is loathe to discipline its own, particularly when expelling a member requires a two-thirds vote. Any hope for sanction probably rests in the shaky hands of the U.S. Justice Department.

When the president tried to essentially stage a coup by dissolving Congress and assuming dictatorial powers, the reaction was swift. In less than a day, the president was impeached and removed from office by those same lawmakers, then arrested and put in jail. As federal prosecutors declared in a statement: “No authority can put itself above the Constitution and must comply with constitutional mandates.” So it went last week in the politically advanced nation of Peru, which offered the world a lesson on how to dispatch a full-frontal assault on democracy. Meanwhile, up in the pathetic banana republic that is the United States, prosecutors, lawmakers and media moguls still fumble the aftermath of our coup, which happened more than 23 months ago.

It is true that that the wheels of American justice continue to turn slowly for the foot soldiers of Donald Trump’s attempted coup aimed at thwarting the peaceful transfer of presidential power that occurred on Jan. 6, 2021. The head of the Oath Keepers militia group was convicted of sedition last month, and some of his lieutenants stand trial this week. Yet officials at the highest levels of U.S. society continue to act as if the violent storming of the U.S. Capitol that left five people dead in its immediate aftermath either a) wasn’t a big deal or, worse, b) should have succeeded.

The new avatar of the “what was the big deal” movement is Twitter-wrecking world’s (formerly) richest person Elon Musk and his quasi-journalist assassins Matt Taibbi and Bari Weiss, breathlessly releasing (all-caps) TWITTER FILES to imply, among other things, there was nefarious political bias in banning Trump from the social media platform two days after his failed assault. That Trump used Twitter to rally support for a “wild” event that caused death and many injuries — making his ban the easiest decision in the history of decisions — hasn’t yet occurred to these three rocket scientists. In the “worse” camp is attention-craving U.S. Rep. Marjorie Taylor Greene of Georgia, who endorsed violently overthrowing the federal government in a speech to Young Republicans in New York City. She said if “Steve Bannon and I had organized [the Jan. 6 insurrection], we would have won ... Not to mention, we would’ve been armed.”

The House and outgoing Speaker Nancy Pelosi have a lot on their plate this month, but lawmakers should vote to censure Greene for supporting a bloody insurrection and the notion that firearms should have been trained on her congressional colleagues. Frankly, Greene should be expelled, and rendered ineligible to hold federal office under the 14th Amendment clause barring insurrectionists. But then, Trump should be behind bars — just like Peru’s Pedro Castillo — and Musk should probably face greater consequences for his assault on free speech than getting booed at a Dave Chappelle comedy show. Peru knows South America’s sad history of overthrowing governments well enough to understand the consequences should be swift and severe. It’s a lesson that America — deluded that it’s too good for this — has yet to learn.