Sheldon Whitehouse: The Dark Money Campaign to Replace Anthony Kennedy Has Already Begun

https://slate.com/news-and-politics/2018/06/the-dark-money-campaign-to-replace-anthony-kennedy-has-already-begun.html

The Dark Money Campaign to Replace Anthony Kennedy Has Already Begun
By Sheldon Whitehouse
June 28, 2018
5:15 PM

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The Roberts Five have been particularly predictable in elections decisions. In Husted v. A. Philip Randolph Institute, the first of two consequential voting rights cases this term, the conservative majority undermined the protections of a federal statute to rubber-stamp Ohio’s unseemly voter purge—a favored tactic of the right to clear voting rolls of Democrats under the guise of imagined “voter fraud.” In the racial gerrymandering case Abbott v. Perez, the court’s conservative wing, ignoring the principle of judicial minimalism, reversed the lower court’s carefully considered conclusion that state lawmakers had drawn Texas’ districts in order to curb the power of minority voters—essentially giving state lawmakers a free pass to act with racial animus.

The blockbuster cases have been no different; in its final week of the term, the Roberts Five checked off a laundry list of right-wing policy priorities. In Trump v. Hawaii, the five-justice Republican majority ignored clear evidence of the discriminatory intent behind President Trump’s Muslim travel ban, allowing the ban to proceed under the flimsy guise of national security. Likewise, the Roberts Five notched a major win for anti-abortion activists in NIFLA v. Becerra, depriving women across California access to truthful information about their family planning options. And in Janus v. AFSCME, Justice Samuel Alito predictably completed his pet project of damaging public-sector employee unions.

Again, none of this is surprising. This is not calling balls and strikes. The court’s 5­­–4 conservative majority gives every sign of having been captured by the dark-money forces driving the GOP. Those forces spent more than $35 million—$17.9 million from one undisclosed donor—to sink the Supreme Court nomination of Merrick Garland and install Neil Gorsuch in his place, to keep the 5–4 decisions coming. A leaked fundraising document from the Koch brothers’ network reveals a deliberate strategy to pack our courts with so-called constructionist jurists—code for the sort of judges they secured in Gorsuch.

Judicial nominees now run a special interest approval gauntlet to be nominated, special interest front groups bombard the court with “friend of the court” briefs signaling their wishes, and special interest–funded “continuing legal education” provides ongoing indoctrination. We can look forward to intense pressure by the big special interests behind the Republican Party to make sure whoever the next Supreme Court justice is will not shut the dark money spigot that has allowed big special interests to bedevil American politics. Indeed, the very day Kennedy announced his retirement, an opaque conservative political group launched a million-dollar TV blitz to compel senators to support Trump’s not-yet-even-named nominee. A Koch network spokesperson said its political arm is “prepared to commit seven figures to support a nominee in the mold of Neil Gorsuch.”

The return on investment is well worth the price tag. More and more, you can predict the outcome of certain cases by knowing who the parties are, without needing to look at the merits. As this court term distressingly confirms, big money begets big results.