The conservative-dominated US supreme court may be undergoing a “course correction” after witnessing a public backlash to its extremist rulings and ethics scandals, Sheldon Whitehouse, chairman of the Senate judiciary subcommittee on the federal courts, has told the Guardian.
America’s highest court has made a series of radical decisions, including in the Dobbs case that overturned the constitutional right to abortion one year ago on Saturday, while two rightwing justices, Clarence Thomas and Samuel Alito, have been exposed for failing disclose luxury gifts from billionaires.
But with trust in the court collapsing, it has this month defended the Voting Rights Act by ruling in favor of Black voters in Alabama and preserved a law that aims to keep Native American children with tribal families. Both were unexpected victories for Democrats – and a sign that they might finally be awakening to public opinion.
“Frankly, I think the recent Alabama decision would have gone the other way had it not been for the blowback on Dobbs,” Senator Whitehouse said in an interview. “The challenge that they’re not ‘conservative’ – they’re captured – and the preposterous behavior of Thomas. That was a pretty heavy course correction. Some of them said, ‘Oh, damn, looks like we’re going have to act like judges for a while. Till this blows over!’”
Whitehouse found it strange that the Alabama voters decision rested so heavily on precedent – something that the current justices, three of whom were appointed by President Donald Trump, have often been content to ignore.
He says: “Where was all that when you were throwing out Dobbs? They have not let precedent get in their way when they’ve wanted the result for quite a while and to have it pop up so flagrantly in the middle of the Alabama case? You guys, that’s funny.”
The senator believes that the court’s new sensitivity to public opinion could extend to the upcoming case Moore v Harper, another gerrymandering case in which Republican legislators in North Carolina are asking the court to grant them unfettered power to set rules for voting and elections – a dangerous notion in the era of Trump’s “big lie” of a stolen election.
“I’ve always thought that was probably a throwaway case for them. If you look at the people who are pitching the case to them, so many of them are under investigation, under indictment, in disbarment proceedings. It’s the whole creepy ‘big lie’ apparatus that came in with that and I’m not sure the court wants to take a look at that crowd and say, yeah, we’re going with them to develop a completely wacky new argument that nobody’s ever accepted as being anything but a fever dream before. That’s just a bad combo.”
Whitehouse, 67, has been a senator for Rhode Island, America’s smallest state, since 2007 and is currently chairman of the Senate budget committee. He has spent years delivering speeches on the Senate floor in two series: “Time to Wake Up”, about the climate crisis, and “The Scheme”, about a decades-long plot to remake the supreme court in service to shadowy billionaires and big special interests.
One of his “The Scheme” speeches came to the attention of Lawrence O’Donnell, an MSNBC host and former congressional aide, who suggested that the subject would make good podcast material. Whitehouse discovered that the Senate’s own studio could produce it. The first episode of Making the Case offers an accessible history lesson with Congressman Hank Johnson, Slate senior editor Dahlia Lithwick and Lisa Graves of True North Research.
Whitehouse reflects on the new venture while sitting in an airy Capitol Hill office surrounded by photographs of himself with Democratic presidents Bill Clinton, Barack Obama and Joe Biden. There are also pictures of Bruce Sundlun, a former governor of Rhode Island and mentor, and President Franklin Roosevelt – with a hand-signed note to Whitehouse’s grandfather, also named Sheldon Whitehouse, who served as a foreign service officer.
The senator is speaking just hours before the ProPublica website published an article raising questions about Alito’s failure to report taking a private jet to Alaska for a luxury fishing trip in 2008, provided by a billionaire hedge fund manager whose business interests have come before the court. Whitehouse will tweet in response: “This just keeps getting worse.”
ProPublica previously reported that Thomas accepted decades of undisclosed trips from a longtime friend, the Republican mega-donor Harlan Crow, that included stays at Crow’s private resort, flights on his jet, and a vacation onboard Crow’s yacht in Indonesia. Crow also purchased property from Thomas and paid private school tuition for a Thomas great-nephew.
Opinion polls show that such revelations have shaken public faith in the court as never before. A Quinnipiac poll published this week found that it has a 30% approval rating among registered voters – the lowest since Quinnipiac first asked the question in 2004. This mood has created an appetite for speeches, podcasts and journalistic investigations to lift the curtain on an institution that once seemed above the political fray and beyond reproach.
Whitehouse, who wrote about Thomas’s relationship with Crow in a book about dark money and the supreme court, tells the Guardian: “A couple of things are happening and they interact with each other. One is that people are just grossed out by the Harlan Crow/Clarence Thomas revelations.
“I checked: in Rhode Island, if you’re a municipal employee, you can have three lunches not exceeding $25 and they have to be reported, and here’s this guy who’s supposedly a judge going on quarter-million-dollar free vacations and not reporting it.”
He added: “Then people are beginning to realise that this is not a conservative court. This is a special interests-captured court. But we don’t have a very ready narrative in American society for explaining the difference and we still get people who cover the court and know a fair amount about it saying the ‘conservative’ justices. Yeah, in what way?”
In 2022 the court upended precedents at an astonishing clip, curtailing or revoking rights such as abortion and due process while expanding religious rights and rights to carry guns. It twice delivered blows to the ability of the Environmental Protection Agency to combat pollution.
Whitehouse believes that the term conservative has been “obsolete” since dark money began funding groups such as Leonard Leo’s Federalist Society to handpick justices for the court. “There’s nothing about the way they’re behaving as judges that meets any definition of small ‘c’ conservative.”
He continues: “Little by little, the facts of the decisions they’ve been up to are beginning to break through with something more than just them being ‘conservative’. There’s this overlay of who’s in charge behind the scenes. Of course that pops up everywhere, in the amicus briefs, in the dark money behind their confirmations. You can’t make it stop. Harlan Crow intersects with it. And then Dobbs was a clang the gong moment where everybody realised, oh, this is a little not normal.”
One fix might lie with Congress. Dick Durbin, chairman of the Senate judiciary committee, has announced plans to take up supreme court ethics legislation. But in April the chief justice, John Roberts, turned down an invitation from Durbin to testify, citing the “exceedingly rare” nature of such an appearance.
Whitehouse comments: “I can understand that he had horrible questions he’d have to answer and, for that reason, he didn’t want to. I very much disagree that his separation of powers argument holds any water at all. That’s pure window dressing for, ‘I just don’t want to come over and have to explain what he did’ – thinking of Thomas. I have some human sympathy for him not wanting to come over and answer questions for his wayward colleague but he was very slippery about the way he did it,” he said.
Whitehouse wants Roberts to demonstrate that he is taking the ethics issue seriously and believes he might be pushed to do so by the judicial conference, the policymaking body of the federal courts that has a code of conduct followed by lower court judges. At an awards ceremony last month, Roberts acknowledged that “we are continuing to look at things we can do” to adhere to the highest standards of conduct.
But no action by the current court has been as tangible or devastating for millions of people as Dobbs, which resulted in the decision to overturn Roe v Wade, the 1973 ruling that had in effect legalised abortion nationwide. Alito’s majority opinion stated that “a right to abortion is not deeply rooted in the Nation’s history and traditions”. The procedure is now almost completely banned in 14 states.
Whitehouse naturally has a podcast episode marking the first anniversary. He reflects: “If you really are going to throw out a decision that stood for so long and matters so much to so many people, you expect that they try to keep within existing law. Instead, they make up a whole new analysis that allows them to get where they want to get – the whole ‘history and tradition’ shtick that they pulled together,” he said.
The ruling was a prime example of the court being out of step with public opinion. Republicans paid the price in last year’s midterm elections. Now candidates for president in 2024 are tiptoeing around the issue, with Trump refusing to commit to a national abortion limit and rival Ron DeSantis, the governor of Florida, facing scrutiny over a six-week ban in his home state.
Whitehouse comments: “There’s a huge liability that they’ve opened up for themselves in a party that has hung with the extremists.”
The Dobbs decision galvanised activists to demand Thomas’s resignation, push for reforms such as expanding the number of justices and make the case to voters that the supreme court is a defining issue at the ballot box, not merely a nice-to-have.
“A lot of the advocacy groups that work in this space – whether it’s environmental groups, civil rights groups, labour groups – have awakened to the nature of the problem at the supreme court and are now taking it on in a whole different way, looking at the dark money, looking at the capture, looking at the mischievous and mysterious briefing just prepared.
“Looking at that whole scenario and realising, wow, we got outplayed for about 20 years now and we’re going to have to figure out how to fight back. This can’t be issue 15 for us any longer. This has to be right at the top across a whole array of advocacy areas.”
