The Scheme by Senator Sheldon Whitehouse

Author:Senator Sheldon Whitehouse
Language: eng
Format: epub
Publisher: The New Press

ACCOUNTABILITY

Hidden amici, unreported free travel, huge donations for pet projects, and gobs of partisan schmoozing—all of that sure smacks of access and influence. But even on the rare occasions when we’re able to connect the dots—and to do it before a case is actually argued before the Supreme Court—there’s not much we can do about it.

Yes, the Court’s rules—and, for that matter, federal law—require a judge to disqualify himself or herself “in any proceeding in which his [or her] impartiality might reasonably be questioned.”30 And in some cases, they do. For example, shortly after Justice Elena Kagan joined the Court, the justices heard an affirmative action case that she had weighed in on when she was still solicitor general. Even though her vote was likely to be decisive, she took herself off the panel considering the matter. Justice Thomas recused himself in a case involving Virginia Military Institute’s policy of not admitting women because his son was then enrolled there. Interestingly, Justice Rehnquist recused himself from cases argued by an attorney who had testified against his confirmation; he never explained his reasoning (they don’t have to), but I suspect it was an honorable decision.

In his 2011 report discussing judicial ethics, Chief Justice Roberts explained that Supreme Court justices “may consider recusal in response to a request from a party in a pending case, or on their own initiative.”31 They may “examine precedent and scholarly publications, seek advice from the Court’s Legal Office, consult colleagues, and even seek counsel from the Committee on Codes of Conduct.”32 But it’s up to each of them, and their decision is unreviewable. As the Chief Justice wrote, “[t]here is no higher court to review a Justice’s decision not to recuse in a particular case,” and “the Supreme Court does not sit in judgment over one of its own Member’s decision whether to recuse in the course of deciding a case.”33 So no one is overseen, and no justice has to answer for his or her decision.

Where better rules might better protect the Court as an institution, the Court accepts the status quo. A culture of coziness with corporate right-wing activist groups, who are seeking to drive an agenda through the courts, prevails. Justices are human, and as open to peer pressure, group signaling, and tribal applause as the rest of us.

For big donors looking for a vulnerable target, this is all good news indeed. And if any justices have serious qualms about what is happening at the Court, there is little public sign of it. The Court’s institutional omerta inhibits the justices’ acknowledgment that it has a problem, which inhibits the Court from fixing the problem—another bonus for the captors.

My book Captured documented the history of regulatory capture and chronicled its grim effects: “When a regulatory agency is captured, it becomes the industry’s tool, overlooking errors and misdeeds, setting rules that favor the industry, and keeping out competition that might challenge the big incumbents. That’s when regulatory agencies stop working for us and become pawns of the industry they were supposed to regulate.

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