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The Path to SCOTUS Accountability: An Interview with Senator Sheldon Whitehouse

Image via Rhode Island Monthly

Sheldon Whitehouse (D-RI) is the junior United States Senator from Rhode Island and has represented the Ocean State in the US Senate since 2007. He currently serves as Chair of the Senate Budget Committee and as a member of the Judiciary Committee, Finance Committee, and Committee on Environment and Public Works. Prior to his Senate election, Whitehouse served as the US Attorney for the District of Rhode Island from 1993–1998 and as the 71st Attorney General of Rhode Island from 1999–2003. Whitehouse is an outspoken advocate for congressional action to promote climate solutions, to eliminate dark money influence in elections, and for Supreme Court ethics reform. He recently co-authored a book with Jennifer Mueller—The Scheme—arguing that the right-wing used dark money to capture control of the Supreme Court. Senator Whitehouse is a graduate of Yale University (1978) and The University of Virginia Law School (1982). Senator Whitehouse resides in Newport, Rhode Island with his wife of 37 years.

Matthew Kotcher: I am excited to speak with you today given the recent news about the Supreme Court issuing a voluntary code of ethics. You have been pushing for Supreme Court Ethics reform since ProPublica reported that Justices Clarence Thomas and Samuel Alito had accepted gifts of travel from Republican donors Harlan Crowe and Leonard Leo, respectively, during the Court’s last term. Yesterday, the Supreme Court issued its own voluntary ethics code. Will this code be sufficient, or do you believe that your proposed Congressional ethics legislation is still necessary? 

Sheldon Whitehouse: It will not do the job, and my legislation is still necessary because, as the Supreme Court itself said upon announcing the new code, there isn’t much in the code here that’s new. The Court viewed itself as being governed by these principles all along. The problem isn’t that the ethics code for judges is weak, it’s that the ethics code for judges wasn’t enforced at the level of the Supreme Court. The gap isn’t that the code is no good; instead, it’s that the code had no means of enforcement, and the new so-called “code of ethics” enumerates zero additional tools for determining whether a justice has violated the code. 

MK: Do you still want the Senate to enforce subpoenas of Crowe and Leo?

SW: Absolutely. First, there’s more to this story than some random billionaire giving a Supreme Court justice a colossally expensive free vacation. There’s repeated conduct. There are people who have dedicated their lives to influencing the US Supreme Court through their involvement in the orchestration of gifts from billionaires to certain justices. The story of influence is a bigger story than that of ethics violations. We need to continue to understand that web of influence and how it works in addition to continuing to pressure the Supreme Court to have a proper procedure for identifying ethical violations. 

MK: Why is ethics reform of the Supreme Court a partisan issue? Do you think there is a bipartisan path to ethics reform?

SW: I think a couple of things converged. First, the Dobbs decision that took away women’s rights to make decisions about their own reproductive lives was a real shock to people across the country. It made the problem of a captured Supreme Court, a Supreme Court that was breaking precedent and delivering decisions that special interests wanted, very real and immediate for people. The ramifications of the Dobbs decision weren’t conceptual. The decision led to a real, sudden, and immediate change in rights that women had enjoyed for half a century. Simultaneously, stories emerged of far-right billionaires amenable to the Dobbs decision giving massive secret gifts to justices. The general public disdain for the Dobbs decision coupled with secretive gifts made the public feel a general distaste for the Supreme Court’s actions.

MK: How do you respond to the criticism that your Supreme Court ethics reform efforts are opportunistic—that you’re a liberal using ethics reform to foment delegitimization of the Court? Meaning if you liked what the Court was doing on abortion, the environment, or affirmative action, you wouldn’t be yelling foul. 

SW: Many of us were yelling foul long before this majority busted up Dobbs and made all these decisions. So the time sequence doesn’t work for that argument. But the other thing that doesn’t work for that argument is it’s a bit of a smokescreen away from two issues. First, Supreme Court decisions have been highly aligned with a group of billionaire-funded groups that tell the Court what to do through amicus curiae briefs. This is a disturbing pattern of decision-making by the Court that deserves inquiry. The second issue behind the smokescreen is this ethics mess. I mean, if you’re a Rhode Island municipal official, you can have three $25 lunches over the course of a year that you have to disclose. Beyond three lunches, you can’t accept anything more that might be considered a gratuity. Doctors can’t accept a ballpoint pen from a medical equipment provider. Members of the military are under strict requirements concerning what they can and cannot accept. People all over the country are expected to adhere to limitations on the gifts they can receive by virtue of their professions, yet Supreme Court justices receive massive secret gifts from billionaires with interests before or pertinent to the Court—it’s inexcusable. 

MK: What do you think are the potential consequences for the 2024 election cycle, particularly with Justice Thomas and his wife, Ginni Thomas?

SW: Hard to tell. I think that restoring the integrity of the Supreme Court is a viable political issue. There’s a lot of support for term limits, for investigations, for an ethics code that’s actually enforceable. Those are positive issues for Democrats, and the Republicans are making a mistake by opposing those issues. There’s also the substance of the decisions. We just saw in the most recent elections in Ohio and Virginia that the Dobbs issue blew up in Republican politicians’ faces. The Dobbs issue in Ohio and Virginia was created by the Supreme Court, and it’s going to have a significant political aftereffect all the way through the 2024 election.

MK: In your latest book, The Scheme, you describe the Supreme Court as “the court that dark money built.” Can you describe the relationship of dark money to the legitimacy of the Court and the relationship of dark money to partisanship?

SW: The high-level overview is that a group of angry and defeated right-wing billionaires and their allies decided that the way to get their wishes achieved in American politics was no longer through democracy, because they’ve failed over and over again, but to try to capture the Supreme Court. In the same way that the Brown University libraries will show you that regulatory capture or agency capture is a very significant phenomenon in the development of administrative agencies, they applied that same strategy to the Supreme Court. Of course, they had to do it quietly, secretively, covertly. So they used a lot of the techniques of covert operations that intelligence agencies use in foreign countries when they are trying to interfere with politics. They’ve been at it for decades, and they’ve built a very significant machinery that reviewers estimated to have cost 600 million dollars.

Slowly but surely, they first took over the administration of who got onto the Supreme Court through the so-called Federalist Society list, and then they spent enormous amounts of money to make sure those individuals got confirmed, and then they spent enormous amounts of money growing doctrine in right-wing hothouses to feed to the justices once they were on the Court to help them decide things their way. And then they have a whole fleet of front groups that come into the Court to say, “On this case, this is how we want you to rule” through briefs that are allowed by the Court through amicus curiae briefs. You’re not a party, but you can file an advisory brief as a so-called friend of the Court. And that whole network, I think, is a connected single apparatus. It had the goal of capturing the Court and delivering these decisions for quite a long time. 

MK: In addition to the Judiciary Committee, you serve on the Environment and Public Works Committee—you have been a consistent advocate for climate solutions. Our convocation address this year was given by Professor Kim Cobb, the Director of the Institute at Brown for Environment and Society, and she challenged us to bring an effort for climate solutions to the forefront of anything we do at Brown, regardless of our chosen concentration. In turn, how are you weaving climate solutions into multiple areas of Senate concern, and how are you seeking bipartisan collaboration for climate solutions? 

SW: Well first, I’m a big fan of Dr. Cobb, and I worked with her when I was in Georgia learning about the climate and sea level rise problems down there. I think she had the most robust sea level apparatus of anywhere in the world around Savannah. She’s a good person to get that message from. I’m trying to work closely with the Biden administration because the fossil fuel industry’s grasp on congressional Republicans preventing them from acting. The first is the social cost of carbon, which the administration has agreed to apply across the entire scope of the executive branch. It’s about to come out of the Environmental Protection Agency at 190 dollars per ton of emitted carbon, which is a very significant price, and be implemented across all the executive agencies. The second is a methane task force to identify methane leaks and to require operators to shut down methane leaks by threatening them with legal action for failure to comply. If we get that right domestically, we can ask other countries to do the same thing and that will make a massive reduction in the methane pollution of the atmosphere. Lastly, I’m constantly urging the Biden administration to get better about dealing with the EU carbon tariff, what they call the CBAM, which the UK just announced they were joining with the EU. So that gives a lot of incentive for us to have our own carbon tariff. If we implement the Inflation Reduction Act well with its climate provisions, and if we enforce rigorously against methane leaks, and if we have a really robust social cost of carbon in all government decision-making, and if international trade is heavily impacted by pollution tariffs for high polluters, then I think a pathway to safety begins to emerge that otherwise would not exist.

MK: Before we close, let’s jump into a lightning round. I am a newbie in Rhode Island, so what is your favorite Italian restaurant in Providence? 

SW: Oh gosh, you’re going to get me in trouble, but I would say Joe Marzilli’s Old Canteen.

MK: Favorite breakfast spot?

SW: Corner Cafe in Newport. 

MK: Pizza anywhere in RI? 

SW: Gotta go with Al Forno’s grilled pizza. 

MK: Ice cream in RI? 

SW: I would say Gray’s in Little Compton, but I’ll tell you Clementine’s in Middletown is a strong contender. 

MK: Favorite place to hike or to enjoy nature? 

SW: Sachuest Point.

MK: Favorite beach? 

SW: There’s a hidden rocky beach just below Ocean Drive in Newport that you climb down to. It’s not well-known, and the water’s clear. I like to swim there with my wife.  

*This interview has been edited for length and clarity.