[NOTE: This series of posts about the corporate capture & corruption of the U.S. Supreme Court reflects my sense that: this “scheme” is extremely dangerous to what remains of our democracy; that it is far advanced; it preceded the era of 45 and the “Big Lie,” and it will continue after that ordeal reaches its end; and the corruption detailed is by no means an isolated case. Thanks again to Senator Sheldon Whitehouse for his leadership in documenting and blowing the whistle on it, in and outside Congress.]Senator Sheldon Whitehouse, excerpts from his book, The Scheme:

One measure of corporations’ advantage in the Roberts Supreme Court is how well our old friend the Chamber of Commerce has fared.

In the years between 1981 and 1986, when deeply conservative Antonin Scalia became a Supreme Court justice, the Chamber won just under half of its cases before the Court—43 percent.

When William Rehnquist served as chief justice, from 1994 to 2005, the Chamber’s win rate climbed to 56 percent.

With Roberts confirmed as chief justice in 2005 and Alito on in 2006, the Chamber’s win rate climbed into the 70s.

As the nonpartisan Constitutional Accountability Center [CAC] reported, for the Supreme Court term from October 2019 to June 2020, “when the Supreme Court reviewed decisions that favored individuals or government over big business, the Chamber and its allies succeed most of the time (though not all of the time) in persuading the Court to reverse those decisions.

But when the Supreme Court reviewed decisions favoring big business, not once did individuals or the government persuade the Court to reverse those pro-corporate wins.”

Not once.

“This was not a fluke,” CAC researchers reported. “Amazingly, it has been more than four years since the Supreme Court reversed a lower-court decision favoring corporate interests, although the Court has decided more than 70 Chamber cases during that period.” . . .

I say it’s evidence—evidence that the Court-stacking “coherent plan,” connecting “judicial selection and the deregulatory effort” as the “flip side[s] of the same coin,” is working beautifully for the special interests behind the Scheme. . . .

GIFTS —

The Court claims to comply voluntarily with the gift provisions of the Ethics in Government Act, and Justice Roberts says this claim should assuage any concerns about the absence of ethics rules.

Yes, the rules do require the justices to disclose gifts, and they prohibit justices from accepting gifts from litigants or honoraria for outside speeches.

But they allow justices to accept travel and lodging in connection with those speeches. And they allow a good deal more.

There is a particularly egregious loophole in the disclosure rules for “hospitality extended for a nonbusiness purpose by an individual,” which is called the “personal hospitality” exemption. It gives justices a huge out in their gifts reporting. The Court has made profligate use of this loophole, starting with not requiring that there actually be a personal relationship with the donor providing the “personal hospitality.”

This so-called personal hospitality exclusion doesn’t just cover stays “at the personal residence of that individual or his family,” but also “on property or facilities owned by that individual or his family.”

That means it’s not limited to someone’s home. It could include their hotel, their golf course, or even their Florida resort at Mar-a-Lago. Because the exemption spares justices from even reporting these gifts, we have no idea how often they have taken advantage of this loophole. We don’t know whose “personal hospitality” they have accepted, who they spent their time with, for how long, or how much their visits might have cost.

But we do know about one justice, thanks to the diligence of two lawyers. When he died, Justice Antonin Scalia was in Texas at the Cibolo Creek Ranch, a five-star resort that he and a guest had flown into on a private charter plane for a gathering of the International Order of St. Hubertus, a secretive all-male hunting society.

Justice Scalia was staying for free as a guest of the ranch’s owner, Texas millionaire John Poindexter. That one weekend, which some have valued at $10,000 for the Justice and his guest, might deserve a raised eyebrow, particularly since Poindexter’s business just had a case before the Court. But it wasn’t just one weekend.

(And it was more than that other, notorious weekend Justice Scalia spent hunting with Vice President Cheney—and traveling there and back with him on Air Force Two—even as the Bush administration had important cases before the Court, including one in which Cheney was a named party.)

Every once in a while, a regular lawyer does something very impressive. . . . I would add the unheralded duo of Stephen Bruce, a Washington, DC, pension lawyer, and his associate Allison Pienta, who noticed something odd when Justice Scalia died on that all-expenses-paid Texas hunting vacation.

As people reminisced about the Justice, more and more stories emerged on the internet and in the press about Scalia’s many hunting vacations, stories that piqued these lawyers’ curiosity. The two began to dig, scouring public records for mentions of Scalia’s hunting trips. Ultimately, they posted a comprehensive report.

Here’s what their determined digging unearthed. First, there were many trips—indeed, many dozens. This was not an occasional thing. The report chronicles more than eighty hunting vacations taken by Justice Scalia in the two decades before his death, and there may well have been many more.

Eighty is a lot.

Second, these were expensive trips. Some venues hold themselves out as commercial operations, so you can look up the rates they charge—sometimes a thousand dollars a day or more. A complete accounting would likely put the value of these trips well into the hundreds of thousands of dollars, especially if the “personal hospitality” was also extended to family or friends of Scalia.

Third, the Justice often was accompanied on these trips by Republican political figures and, in some cases, individuals with interests before the Court: Republican elected officials, Republican Party officials and donors, representatives of pro-gun advocacy organizations, fossil fuel industry folks, and so forth.

These were not “personal” affairs in the ordinary sense.

Fourth, the hunting vacations appear to have been “comped” to the Justice. He seems to have seldom paid for them. If the venues comping the Justice were reimbursed by a third party, that makes it all even messier, but we don’t know.

Fifth, the reason we don’t know is because none of these trips was reported under Supreme Court disclosure rules. When Senator [Lindsey] Graham and I made a bipartisan inquiry about the justices’ receipt of gifts, travel, or hospitality, the Court assured us that the justices “take care to ensure that any items received are in full compliance with” judicial branch rules.

Maybe “items” was a trick answer. But these dozens of expensive comped vacations were never disclosed.

Last, a specific system was used to evade disclosure.

Here’s how it worked. The Supreme Court’s “personal hospitality” exemption obviously implies a personal relationship, but it doesn’t explicitly say so. So Justice Scalia or his intermediaries would arrange a hunting trip at a suitable venue and get the owner of the venue to invite the Justice. The owner of the venue often had no personal relationship with the Justice, yet the invitation from the owner made it “personal hospitality.”

One Georgia lawyer described how the conversation would go. When asked if he would give a speech to the Georgia bar, the lawyer recalled, Justice Scalia “smiled and said, ‘I’ve always enjoyed hunting quail in Georgia.’”

A team of lawyers immediately got to work planning a symposium—and a quail hunting trip on a south Georgia plantation. As Justice Scalia’s colleague Justice Sandra Day O’Connor advised a Texas lawyer trying to get Scalia to come address his alma mater, “He’ll do anything if you take him hunting.”

Under this practice, any justice could solicit any trip, from any resort owner, and get a free holiday without ever reporting it, so long as they or their intermediary arranged for the resort owner—whom they don’t even have to know—to “invite” them.

Indeed, big donors could go to the owners of the fanciest resorts in the world—private islands in the Caribbean, charter yachts in the Med, ski chalets in the Rockies—and ask the owner to invite a friendly justice and give him a wonderful free undisclosed vacation. They could arrange for political interests to come along and get the ear of the justice in a congenial and very private situation. They could even arrange a nearby speech to cover the justice’s airfare.

This secrecy kept the public from knowing that for well over a decade before he rewrote the Second Amendment in a case called District of Columbia v. Heller, Justice Scalia had been entertained at some of the most luxurious hunting resorts in the country in the company of senior NRA leaders and other wealthy conservative donors, including some who filed or funded briefs in the Heller case.

One Scalia trip took him to Nuremberg, Germany, in March 2007, for the “World Forum for the Future of Sports Shooting Activities.” At the time, Heller was headed for the Court’s docket. Justice Scalia’s opinion in this case would radically redefine and expand the scope of the Second Amendment right to bear arms, delivering a landmark win for the NRA and the firearms industry. Groups funding the Nuremberg conference, including the NRA, were amici curiae in the case.

At the conference, Scalia talked with gun-rights activists Alan Gottlieb of the Second Amendment Foundation and Stephen Halbrook of the NRA. After Justice Scalia’s death, Gottlieb described the conversation in a right-wing talk radio interview as follows:

So we didn’t talk directly about the case itself because it would have been like sort of a conflict, but he did say … “You know, Alan, it takes four votes on the Supreme Court to hear a case, and it takes five to win it. If I don’t think we have the five to win it, there won’t be four to hear it.”

And that just made me feel like I knew at that point in time that if the Supreme Court took the Heller case, that we were going to win it. [Bruce report.]

This revelation, in a case that the Court hadn’t decided yet, to a known advocate filing briefs in support of that outcome, presaged the result.

It was not proper.

To put Court capture in context, let’s put these undisclosed gifts to a U.S. Supreme Court justice side by side with gifts to government employees in instances of regulatory capture—say, the Minerals Management Service’s[MMS] relationship with oil and gas interests exposed after the 2010 Deepwater Horizon explosion in the gulf.

My Senate colleague Bill Nelson called this a “cozy, incestuous relationship.” The Interior Department inspector general revealed that MMS inspectors who oversaw oil drilling in the Gulf of Mexico accepted freebies from companies they monitored.

Gifts chronicled in the inspector general’s report included a trip to the 2005 Peach Bowl on a private airplane, skeet shooting contests, hunting and fishing trips, and golf tournaments.

What resulted? Interior Secretary Ken Salazar reported that MMS employees who had accepted gifts were fired and referred for prosecution.

When gifts like that cause scandal in the regulatory world, and result in employee firings and referrals to DOJ, it is hard to see how this pattern of dozens of undisclosed, comped luxury hunting trips to a Supreme Court justice is not a problem. In theory, justices are held to the highest standard.

Yet Scalia’s trips went on for years.

The Supreme Court needs to clean this up, with a proper ethics code and real disclosure requirements. The fact that this “personal hospitality” system was allowed to run up a pattern of more than eighty free, undisclosed vacations for just one justice signals plainly the need for improvement. . . .Part 1 of this series on Supreme Court capture & corruption is here.