This is a—to me—pretty big deal.
I've never seen this around any court I've ever been…
involved with, where there's this much dark money
and this much influence being used.
Here's how Washington Post summed it up.
“This is a conservative activist's behind-the-scenes campaign
to remake the nation's courts”
and it's a $250 million dark money operation.
$250 million is a lot of money to spend if you're not getting anything for it.
So that raises the question,
what are they getting for it?
Well… I showed this slide earlier
on the Affordable Care Act. And on Obergefell, and on Roe vs. Wade.
That's where they lost.
But with another judge, that could change.
That's where the contest is.
That's where the Republican party platform tells us to look
at how they want judges to rule,
to reverse Roe, to reverse the Obamacare cases,
and to reverse Obergefell and take away gay marriage.
That is their stated objective and plan…
why not take them at their word?
But there's another piece of it. And that is…
not what's ahead of us, but what's behind us.
And what's behind us is now 80 cases, Mr Chairman, 80… cases.
Under Chief Justice Roberts
that have these characteristics:
One, they were decided 5 to 4, by a bare majority.
Two, the 5 to 4 majority was… partisan…
in the sense that not one Democrat— Democratic appointee joined the 5.
I refer to that group as the “Roberts Five”.
It changes a little bit, as… with Justice Scalia's death, for instance.
But there's been a steady Roberts Five
that has delivered now 80 of these decisions…
And the last characteristic of them is that
there is an identifiable Republican donor interest in those cases
and in every single case, that donor interest won.
it was an 80 to 0, 5 to 4 partisan… rout.
Ransacking.
And it's important to look at where those cases went
because they're not about big, public issues
like getting rid of the Affordable Care Act,
undoing Roe vs. Wade, and undoing… same-sex marriage.
They're about power.
And if you look at those 80 decisions, they fall into 4 categories…
over and over and over again.
One… unlimited and dark money in politics.
Citizens United is the famous one, but it's continued since with McCutchen
and we've got one coming up now.
Always the 5 for unlimited money in politics,
never protecting against dark money in politics
despite the fact that they said it was gonna be transparent.
And who wins?
When you allow unlimited dark money in politics?
A very small group.
The ones who have unlimited money to spend
and a motive to spend it in politics.
They win, everybody else loses.
And if you were looking… at who might be behind this,
[points at card loudly]
let's talk about the people with unlimited money to spend and a motive to do it.
We'll see how that goes.
Next, knock the civil jury down.
Whittle it down to a nub.
The civil jury was in the Constitution, in the Bill of Rights,
in our darn Declaration of Independence.
But it's annoying to big corporate powers.
Because you can swagger your way as a big corporate power through Congress.
You can go and tell the President you put money into to elect what to do.
He'll put your stooges at the EPA.
It's aaaaaall great.
Until you get to the civil jury.
Because they have an obligation, as you know, Judge Barrett,
they have an obligation under the law
to be fair to both parties irrespective of their size.
You can't bribe them— you're not allowed to.
It's a crime to tamper with the jury.
It's standard practice to tamper with Congress.
And they make decisions based on the law.
If you're used to being the boss,
and swaggering your way around the political side
you don't wanna be answerable before a jury.
And so one after another, these 80 5 to 4 decisions have knocked down,
whittled away, at the civil jury,
a great American institution.
Third.
First was unlimited dark money.
Second was, demean and diminish the civil jury.
Third is, weaken regulatory agencies.
A lot of this money, I'm convinced, is polluter money.
The coke industries is a polluter.
The fossil fuels industry is a polluter.
Who else would be putting buckets of money into this
and wanting to hide who they are behind Donors Trust
or other… schemes.
And what if— If you're a big polluter
what do you want?
You want weak regulatory agencies.
You want ones that you can box up and run over to Congress.
and get your friends to fix things for you in Congress.
Over and over and over again,
these decisions are targeted at regulatory agencies
to weaken their independence and weaken their strength.
And if you're a big polluter
then weak regulatory agencies is your idea of a good day.
And the last thing is in politics.
In voting.
Why on earth… the Court made the decision
—a factual decision.
Not something appellate courts ordinarily are supposed to make,
as I understand it, Judge Barrett—
the factual decision that nobody needed to worry about
minority voters in preclearance states
being discriminated against
or that legislators would try to knock back their ability to vote.
These five… made that finding in Shelby County
Against bipartisan legislation from both houses of Congress
hugely past, on no factual record.
They just decided that that was a problem that was over.
On no record, with no basis,
Because it got them to the result… that we then saw.
What followed. State after state after state
passed voter suppression laws.
One, so badly targeting African-Americans
that 2 courts that it was surgically…
surgically tailored to get after minority voters.
And gerrymandering.
The other great… control.
Bulk gerrymandering, when you go into a state,
like the REDMAP project in Ohio and Pennsylvania
and you pack Democrats so tightly into a few districts
that all the others become Republican majority districts.
And in those states,
you send a delegation to Congress
that has a huge majority of Republican members
like 13 to 5, as I recall
in a state where the 5, the party of the 5 actually won the popular vote.
You’ve sent a delegation to Congress
that is out of step with the popular vote of that state, and…
court after court figured out how to solve that
and the Supreme Court said, “Nope.”
5 to 4 again. “Nope. We’re not going to take an interest in that question.”
In all these areas where it’s about political power for big special interests,
and people want to fund campaigns,
and people want to get their way through politics
without actually showing up
doing it behind Donors Trust and other groups,
doing it through these schemes …
over and over and over again…
you see the same thing.
80 decisions, Judge Barrett.
80 decisions.
An 80 to 0 sweep.
I don’t— I don’t think you’ve tried cases
but some cases…
the issue is bias and discrimination.
And if you’re making a bias case, as a trial lawyer
—Lindsey Graham is a hell of a good trial lawyer—
if he wanted to make a biased case
—Dick Durbin’s a hell of a good trial lawyer—
if they wanted to make a bias case,
and they could show and 80 to 0 pattern…
A, that’s admissible,
and B, I’d love to make that argument to the jury.
I’d be really hard-pressed to be the lawyer saying
“No. 80 to 0’s just a bunch of flukes.”
All 5–4, all partisan, all this way.
So… something is not right
around the court.
And dark money has a lot to do with it.
Special interests have a lot to do with it.
Donors Trust and whoever’s hiding behind Donors Trust
has a lot to do with it.
And the Bradley Foundation
orchestrating it’s amici over at the court
has a lot to do with it.