Politicians in Robes: Part I

The Roberts Majority: Dictators Since Day One

The Supreme Court began another term this week. Most court watchers and other analysts have been reluctant to accept the truth of something I’ve long argued: that the Roberts Court is as agenda-driven as the House or Senate Republican caucuses. They have already put their thumbs on the scale in this election and are poised to intervene again if the results don’t suit them. 

We are at least a decade past the point when we should be convinced of what Abraham Lincoln stated in his first inaugural address: 

The candid citizen must confess that if the policy of the Government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court . . . the people will have ceased to be their own rulers.¹

The biggest sticking point for the political class has been Chief Justice John Roberts’s wholly undeserved reputation as an institutionalist who cares about the Court’s legitimacy – an “umpire” just calling balls and strikes. However, as made clear by this post, previous editions of Weekend Reading,² a proliferation of reporting by ProPublica and the New York Times, two recently published books³ and a well documented podcast series about the corruption of the Roberts Court, Roberts’s reputation as an “institutionalist” was never justified. 

In truth, no one should have ever believed otherwise. All six Republican-appointed justices on the Roberts Court have current or former associations with the Federalist Society – an enterprise sponsored by right-wing billionaires and theocrats for the explicit purpose of transforming the federal judiciary, in order to impose by fiat agendas so unpopular that they could never be enacted through democratic means. 

The interests behind the Federalist Society (FedSoc) – in particular the Kochs, Leonard Leo, and other plutocrats and theocrats – are the same interests who have spent the 21st century funding and organizing the MAGA takeover of the Republican Party. I’ve coined the portmanteau “plutotheocratic” as a compact way of describing this coalition of interests. (See the Appendix for a brief overview of the history and major players in the plutotheocratic coalition.) 

The six FedSoc justices are properly understood not as “umpires” scrupulously “calling balls and strikes,” but as politicians in robes. However, it’s important to recognize what kinds of politicians we are dealing with. The FedSoc Six are first and foremost Federalist Society operatives. That means that they usually act in the interests of the Republican Party – except when the partisan agenda of the day conflicts with the long-term plutotheocratic agenda. 

The purpose of this post is to make clear that for the first time in American history, the Court has been captured by outside interests. The Roberts Court decisions shouldn’t be thought of in jurisprudential terms as merely “wrong,” but in political terms as the realization of a plutocratic and theocratic agenda that the American people have repeatedly rejected when given the opportunity.

This post begins a multi-part series intended to help extinguish any doubt whatsoever that, given the opportunity, the Roberts majority will not hesitate to throw the election to Trump – but if and only if it benefits the plutotheocratic movement to which they belong, and if and only if they think they can get away with it. All of us have some control over at least the latter.

Wholesale (Not Retail) Corruption

Although excellent reporting by ProPublica⁴ and others make clear several of the justices have received plenty of (usually undisclosed) quid, those Alaskan fishing junkets and luxury RVs cannot credibly or usefully be thought of as necessary for the quo – the Roberts Court’s gutting of personal freedoms, deregulation of business, tearing down of walls between church and state, and empowering of their billionaire backers to wield unprecedented influence over our elections.

The six haven’t produced outcomes in exchange for financial remuneration; rather, the plutotheocratic interests selected them to be on the Court because no exchange would be necessary; the justices had already convincingly demonstrated they were true believers. Whatever your (justifiable) problems with each of their ethical lapses, if they had not been confirmed, there were dozens more lined up on the FedSoc bench who would not be reaching different judicial conclusions.

This is not to say that previous Supreme Court nominations, from either party, have been free of corporate, elite, or special interest influence. But they reached the Court for a variety of reasons – none of which included an organized effort by outside interests to put them there with the intention of building a majority capable of overturning the prevailing legal system in order to realize an agenda far too unpopular to be accomplished by democratic means.

The Supreme Court has, of course, made many rulings that overturned previous major precedents or led to significant social change. But consider:

• Brown v. Board of Education - Earl Warren and the other eight justices joining him did not owe their positions to a cabal of civil rights activists who had contributed billions of dollars to law schools, foundations, think tanks and political campaigns.

• Roe v. Wade - Harry Blackmun and the six justices joining him on Roe v. Wade did not owe their positions to a cabal of pro-choice activists who had contributed billions of dollars to law schools, foundations, think tanks and political campaigns. 

• Gideon v. Wainwright - Hugo Black and the eight other justices joining him did not owe their positions to a cabal of indigent prison inmates who had contributed billions of dollars to law schools, foundations, think tanks and political campaigns.  

But the members of the Roberts majority do owe their positions to a cabal of plutocrats, who directly benefited from rulings like Citizens United and Loper Bright, and theocrats, who have a fierce ideological commitment to outcomes like Dobbs and Hobby Lobby, who together have contributed billions of dollars to law schools, foundations, think tanks and political campaigns. Again, per Lincoln, we have ceased to be our own rulers.

The Federalist Society literally planned and executed an unprecedented transfer of unchecked political power to their own loyalists.⁵ They brag about this in unguarded moments and in their “safe spaces.” The plutotheocratic coalition behind the Federalist Society has spent billions of dollars realizing it, including by:

• Advancing the careers of Federalist Society members in good standing by securing them coveted clerkships, partner-track jobs at prestigious law firms, and positions in Republican Departments of Justice; putting them on short lists of Republican Presidents and senators for federal judgeships; and subsidizing the lifestyles to which their justices feel entitled once confirmed. 

• Dominating legal culture as fiscal sponsors of law schools, endowed academic law school chairs, law journals, and junkets. 

• Acting as judicial gatekeepers whose approval is now a prerequisite for nominations by Republican presidents.  

• Ensuring the confirmation of its favored justices. Leonard Leo, who was the Federalist Society’s lead fundraiser for years and who still helps direct the group, has orchestrated multi-million-dollar lobbying and public relations campaigns to assure the confirmations of his preferred Supreme Court nominees, despite those nominees’ odious views, and to gaslight the political class into treating those nominees like any other legitimate jurists. 

Creating a Death Spiral for Democracy 

For about 40 years, we saw a fairly predictable ebb and flow in the federal commitment to advancing greater freedom and equality and to constraining corporate threats to consumers, working people, and the environment. Under Republicans, this commitment would ebb; under Democrats, it would flow. But beginning in 2010 with the Citizens United decision, if not a bit earlier, Roberts’s agenda-driven majority turned that ebb and flow into a death spiral for American democracy. 

Decision after decision shifted more and more electoral power to the FedSoc Six’s plutotheocratic sponsors – who in turn used that power to take greater control of Red state governments and purge Republican congressional caucuses of RINOs – which in turn was used to place more and more Federalist Society true believers on the Federal bench, and eventually the Supreme Court. 

In short order, the Roberts majority tag-teamed with Mitch McConnell to ensure that the former never faced congressional oversight and accountability, and the latter never needed to secure majorities to accomplish the Republicans’ substantive agenda. 

Once Republicans were assured of a very high floor in the Senate with their one-party lock on nearly half the states (made all the easier by the flood of political money that Citizens United ushered in), the Senate Republican caucus could shred so-called “democratic norms” without risk of electoral accountability; on the contrary, they risked primary challenges if they didn’t. (This should make clearer why McConnell acted with such impunity to first refuse to consider Garland’s nomination eight months before the 2016 election, and then ram through Coney Barrett’s just eight days before the 2020 election.) 

Or, put differently, they have reversed constitutional roles: The Republican SCOTUS majority legislates, while congressional Republican minorities prevent scrutiny and Republican Senate majorities add more loyalists to the bench at every level. And the SCOTUS “congress” has the additional advantage of being beyond presidential veto.   

Below is an incomplete list of the most grievous “democratic death spiral” decisions by the Roberts Court. For more detail on each intervention, see Tipping the Scales: The MAGA Justices Have Already Interfered with the 2024 Elections. Taken together, these interventions have not only literally decided who would be president but have rewritten what had been the settled rules of democratic elections in favor of the theocratic interests. And crucially, none of these decisions was joined by a single justice named by a Democratic president. 

1. Bush v. Gore (2000). While this case was decided by the Rehnquist Court, it set the template for the strictly partisan electoral decisions to come in the Roberts Court. The five Republicans (including Clarence Thomas and Antonin Scalia, who would join many of the other cases listed here) took the unprecedented step of taking a case that would have heretofore been left with the Florida state supreme court, and then took the unprecedented step of stopping a vote count, thereby selecting George W. Bush as president.⁶

2. Campaign Finance. In Citizens United (2010) and related cases,⁷ the Roberts Court legalized unlimited spending by its plutocratic backers, radically rebalancing political power in American elections. As a result, federal campaign spending doubled since 2008, and studies show that it improved Republicans’ chances of winning state legislative races by about 4 points on average. 

3. The Voting Rights Act and voter suppression. In Shelby County (2013), the Roberts Court repealed the Voting Rights Act by fiat. This and other voting decisions, like Brnovich v. DNC (2021), have helped allow those states to revert to one-party authoritarian rule. All but one of the cases were decided by the same 5-4 line-up, and that one voter ID case was subsequently regretted by Justice Stevens.

4. Gerrymandering. In Rucho (2019) the Roberts Court opened the door to massive Republican gerrymandering in general by holding that federal courts have no jurisdiction to review claims of unconstitutionally partisan redistricting. Rucho stood on the shoulders of the 2004 Vieth case, which preceded Roberts but was decided by the same justices who provided the majority in Bush v. Gore. The gerrymandering enabled by Vieth allowed Republicans to maintain control of the House of Representatives in 2012 despite losing the national vote for the House (the only time that has ever happened). And in 2022, the Roberts Court literally gave Republicans four House seats by overruling lower court decisions. 

5. Shielding Trump and radically expanding presidential power. The Roberts Court slow-walked its ruling in the immunity case to the point that Trump would not stand trial before the election and effectively disabled section 3 of the 14th Amendment, which bars insurrectionists from holding office.

This created a ratcheting advantage for Republicans. They understand that they pay no policy penalty for using their intermittent presidential victories and congressional majorities to push for the most extreme and unpopular elements of their agenda. They know that when Democrats take their turn in power, they will find it all but impossible to return to the status quo ante, given the blocking power of the Roberts majority and cloture-proof Senate Republican caucus. Rinse and repeat. 

Historically Unrepresentative

The Roberts Court’s six-member Republican majority includes the only five justices in U.S. history out of 116 who have served confirmed by senators representing less than half of the US population – including three who were also nominated by a president who had lost the popular vote.⁸ 

Historically Uninterested in Compromise 

Unlike previous Courts, even ones like the Warren Court that overturned some precedents, the Roberts Court consistently overturns precedents in the manner of congressional Republican congressional majorities – strictly along partisan lines, without any effort to find compromises that might garner greater legitimacy. The following chart makes that point with respect to overturning civil rights precedents. 

More recently, reporting in the New York Times shows that Roberts made no effort (and seemingly showed no interest) in fashioning an opinion on presidential immunity that might have garnered wider acceptance, if doing so came at the expense of trimming any of the maximalist aims of the most political justices on the Court. (The article indicates that in June, Justice Sotomayor “signaled a willingness to agree on some points in hopes of moderating the opinion.”)

Historically Unpopular and Polarizing

As recently as 2000, three quarters of Americans approved of the Supreme Court. Even more remarkably, there was no partisan divide; Democrats and Republicans were nearly equally approving. But, in stair steps since then, approval has plummeted, dipping below fifty percent. Unsurprisingly, though, the Court has retained its credibility with Republican voters – while plummeting to historic lows with Democrats and Independents. 

Again, this is a cause and consequence of the partisan reversion to the nation’s original sectional divide. As recently as 2000, the senators confirming each of the justices on the Court were not divided regionally. But now, Republicans and Democrats on the Court show the same regional divide as their respective congressional caucuses – which, of course, reproduces the regional divide in partisan caucuses before the New Deal. (It is worth noting that each of the three of the justices nominated by Democratic presidents received more support from senators from purple states than any of the six appointed by Republican presidents.)

Historically Compromised Justices 

Again, the wholesale corruption I’ve described has been vastly more consequential than the ethical problems of any individual jurists. That said, it is still the case that of the six justices in the majority, four are seriously tainted by ethical or bias problems that Roberts has refused to do anything about: 

• Clarence Thomas. Thomas has served on the Supreme Court for more than 30 years despite having committed perjury at his confirmation hearings. He has repeatedly failed to recuse himself from cases in which he was conflicted either by the actions of his right-wing activist wife, including casting the deciding vote in Bush v. Gore, or those implicating the financial interests of the billionaires who provided him with gifts and subsidized his lavish lifestyle. On top of that, Thomas has repeatedly failed to disclose these millions of dollars worth of secret gifts until forced to by independent reporting. 

• Sam Alito. In May, The New York Times reported that Alito’s primary residence and vacation home had both flown flags associated with the January 6th insurrection and/or Christian nationalism. Alito lied to reporters when he was originally confronted in 2021 about one of the flags, and blamed his wife for both flags when the NYT stories broke this year. Like Thomas, and in clear violation of federal law, Alito has repeatedly failed to recuse himself from cases in which his benefactors had interests as well as last term’s cases related to January 6th. For the most part he has failed to report gifts from those benefactors until forced to by independent reporting. Moreover, he was caught on tape expressing sympathies with Christian nationalist views and saying that "one side or the other is going to win” the battle between left and right in America. 

• Brett Kavanaugh. Subsequent disclosures make clear that Kavanaugh, too, perjured himself at his confirmation hearings. Recently it’s been reported that the Trump White House prevented the FBI from following up on leads that would have confirmed that at the time. Furthermore, at the time of Kavanaugh’s nomination, there were pending ethics charges against him as an appeals court judge that were dropped when he was confirmed to serve on the Supreme Court. He also lied repeatedly to the Senate about records stolen from the Senate that he received.

• Neil Gorsuch. Gorsuch maintains a close relationship with his former client, Colorado billionaire Phillip Anschutz, who made his fortune through oil and gas exploration and whose empire spans multiple regulated industries, including energy, telecommunications, and media. Fiercely opposed to government regulation, Anschutz played a key role in promoting Gorsuch's nomination to the 10th Circuit, where Gorsuch rose to prominence for his strident opposition to the "administrative state." Anschutz is also a major donor to a host of anti-regulatory litigating groups and the Federalist Society, whose board chair Leonard Leo selected Gorsuch to fill the Supreme Court vacancy that Leo ally Mitch McConnell blocked Merrick Garland from filling. Anschutz's investments paid off in a major way this year when Gorsuch joined the 6-3 majorities in Loper Bright and Corner Post, which Gorsuch has followed up with a gauzy book tour relishing in his personal distaste for government regulation.

Moreover, three of them played roles in the most divisive partisan legal battles of the last quarter century: 

• Bush v. Gore. Roberts, Kavanaugh and Coney Barrett played various roles for the Bush legal team.

• The Starr investigation into Bill Clinton. Brett Kavanaugh has been characterized as an attack dog, pushing for impeachment, and the source of frequent leaks, violating well adhered to Department of Justice policies, potentially violating criminal grand jury secrecy laws. 

Again, it is worth rehearsing their biographies not because the lapses are the problem, but because they illustrate that even before they ascended to the Court, they were comfortable in a world in which their conflicts were not conflicts at all, but simply the bonds of friendship and the way things work. As I have written several times, our fundamental error in characterizing everything about Red America is to think that they are breaking norms, when, in fact, the norms in Red America are very different. This has also been reflected in everything from Roberts’s dissent in Massey (which held that “A judge cannot hear a case that centers on the financial interests of someone who supported him substantially in his campaign for election”), to the more recent undermining of bribery laws (rewriting the law to assert that a “gratuity” paid to a policymaker is – absurdly – not a bribe).

And, closely linked to that, we see in all of them a theocratic mentality combined with country club entitlement, powering a hot house  “jurisprudence” which sees nothing wrong with labeling the Voting Rights Act a “racial entitlement” and takes extreme umbrage at anyone casting doubt on the justices’ personal integrity or the objectiveness and consistency of their legal reasoning. 

Consider the recent New York Times reporting that “In his writings on the immunity case, the chief justice seemed confident that his arguments would soar above politics, [and] persuade the public.” This seems laughable – until you realize that the “public” he has in mind does not include us, but does include the circle he runs in and the interests that put him on the Court in the first place.

John Roberts in His Own Words

Just months before the decision in Citizens United, dripping with condescension, John Roberts lawyer-splained to the C-SPAN audience, as if to think otherwise was to be hopelessly naive, that: 

The most important thing for the public to understand is that we’re not a political branch of government. They do not elect us. If they do not like what we are doing, it’s more or less just too bad.⁹ 

I strongly, strongly urge you to do more than read those words on the page, but to watch the short clip. His smug tone, body language, and words are worthy of any Shakespearean villain in Act I – chillingly prefiguring his execution of the Federalist Society’s long-term plan in Act IV. That plan is nothing less than the unilateral and unaccountable repeal of 20th-century progress towards human freedom and democratic agency, to be replaced by the towering economic and political inequality that preceded the New Deal and the indifference to the rights of women, people of color, and non-Christians that preceded the 1960s. 

We rightly dread the possibility that Trump may make himself “a dictator on day one,” and that the Supreme Court justices he appointed might help him do that. Yet the political class comfortably overlooks the reality that John Roberts’s majority has been a dictator for the last 6,947 days and counting. 

Weekend Reading is edited by Emily Crockett, with research assistance by Andrea Evans and Thomas Mande.

Appendix: A Brief History of the Plutotheocratic Coalition

The plutocrats in the plutotheocratic coalition include billionaires like Charles Koch, the Olins, the Mellons, the Scaifes, the Coors, the Bradleys, etc. who have provided the financing for the coalition’s political victories. The theocrats include members of the Religious Right that first emerged in the 1970s, since augmented by Opus Dei. Because the two factions have frequently overlapping agendas, they came together as insurgents in the 1960s – first to hijack the Republican nomination in 1964 for Barry Goldwater, then to accept junior partner status (to mainstream corporate interests) within Nixon’s Republican Party. They became more disgruntled during the Reagan-HW Bush years, and ultimately become senior GOP partners in the wake of Obama’s 2008 election win – purging nearly all of the “RINOs” in Congress and state legislatures by 2016. 

It is important to remember that before the Federalist Society, the American Bar Association screened prospective nominees for their qualifications. There was no doubt that Democratic and Republican presidents preferred nominating justices who were generally more liberal or conservative, respectively. But that was in the context of the Court being an essentially conservative institution, in the sense that it was mindful of stare decisis and had a high bar for making dramatic or disruptive change. Even Richard Nixon, as John Dean details (with the benefit of extensive White House tapes) in The Rehnquist Choice, had a prosaic set of criteria when he nominated Rehnquist to replace John Marshall Harlan II. Those factors included electoral politics (which demographic voter block to appeal to), congressional relations (whom key allies favored), ease of confirmation, and generally being conservative. 

And the relationship between outside interests and the judiciary was also quite different. Reread the Powell Memo now, and you are sure to find its ambitions quaintly modest by today’s standards. Its core argument was that business was not spending enough to make a better case to the judiciary, not that it should take over the judiciary. 

But that all changed in 1987, when President Reagan nominated Robert Bork to the Supreme Court, immediately setting off a firestorm of criticism. Republicans have claimed that the backlash broke the norm of deference to presidents’ nominations. But in a way that echoes to this day, it is more accurate to say that the Bork nomination itself was the norm breaker. To this point, it was accepted that Democratic presidents would nominate those with liberal leanings, and Republican presidents would nominate those with conservative leanings – but that neither would appoint justices who intended to use the Court to revisit and change existing law, let alone legislate from the bench along rigid partisan lines. Bork very flamboyantly broke that mold. The defeat of the Bork nomination served to more or less preserve that norm for another two decades. 

It wouldn’t be until the George W. Bush Administration that Republicans would formally ignore American Bar Association evaluations. By that time, a Federalist Society endorsement had become a prerequisite for successful nomination. A key turning point was when Leonard Leo quietly helped sink Bush’s nomination of Harriet Miers for being insufficiently committed to the Federalist Society agenda. Bush would not make that mistake again, as his next nominee, Samuel Alito, more than met that standard. Having cut his teeth as a strenuous advocate of rolling back voting rights in Edwin Meese’s Federalist Society-dominated Reagan Justice Department and assisting the Bush v. Gore legal team, Roberts was tapped early in his career for the combination of his intelligence, discretion, and devotion to the plutocratic agenda. 

1. Quoted in Daley, David. Antidemocratic (p. vii). HarperCollins. Kindle Edition. This is an essential book.

2. July 9: In Any Other Country; June 19: Tipping the Scales: The MAGA Justices Have Already Interfered with the 2024 Elections; May 19: Supreme Gaslighting; May 9: Does Joe Kahn Trust the New York Times?; April 30 • Breaking the Law: Trump Is the Means, Not the End; June 27, 2023: Don't Be Surprised by Moore v. Harper. The Federalist Society justices are not political partisans; they are interest group partisans.; Feb 11, 2023: To the Supreme Court, the 20th Century Was Wrongly Decided; Dec 19, 2022: Moore v. Harper and the Emerging Divisions in the Revanchist Coalition; March 27, 2022: SCOTUS: Slow-Motion Constitutional Coup: The Supreme Court has been hollowing out the principle of "consent of the governed."

3. Daley, David. Antidemocratic: Inside the Far Right's 50-Year Plot to Control American Elections. HarperCollins;

Brock, David. Stench: The Making of the Thomas Court and the Unmaking of America. Knopf Doubleday Publishing Group. 

4. Propublica won the Pulitzer Prize for Public Service in 2024 for its coverage of the Supreme Court. They also maintain a database tracking the financial connections of each Supreme Court Justice.

5. As this is a Substack, I refer you to the voluminous books documenting the Federalist Society project: (alphabetical by author)

Avery, Michael; McLaughlin, Danielle. The Federalist Society: How Conservatives Took the Law Back from Liberals. Vanderbilt University Press. 

Baum, Lawrence; Devins, Neal. The Company They Keep: How Partisan Divisions Came to the Supreme Court. Oxford University Press. 

Berman, Ari. Minority Rule: The Right-Wing Attack on the Will of the People—and the Fight to Resist It. Farrar, Straus and Giroux. 

Brock, David. Stench: The Making of the Thomas Court and the Unmaking of America. Knopf Doubleday Publishing Group. 

Daley, David. Antidemocratic: Inside the Far Right's 50-Year Plot to Control American Elections. HarperCollins. .

Dennie, Madiba K. The originalism trap: How Extremists Stole the Constitution and How We the People Can Take It Back. Random House. 

Dias, Elizabeth; Lerer, Lisa. The Fall of Roe: The Rise of a New America. Flatiron Books. 

Enrich, David. Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. HarperCollins. 

Hollis-Brusky, Amanda; Wilson, Joshua C.. Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture (Studies in Postwar American Political Development). Oxford University Press. 

Hollis-Brusky, Amanda. Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Studies in Postwar American Political Development). Oxford University Press. 

Lithwick, Dahlia. Lady Justice: Women, the Law, and the Battle to Save America. Penguin. 

McMahon, Kevin J.. A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People. University of Chicago Press. 

Millhiser, Ian. The Agenda: How a Republican Supreme Court is Reshaping America. Columbia Global Reports. .

Powe, Lucas A.. The Supreme Court and the American Elite, 1789-2020. University Press of Kansas. 

Teles, Steven M.. The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton Studies in American Politics: Historical, International, and Comparative Perspectives Book 110). Princeton University Press. 

Waldman, Michael. The Supermajority: How the Supreme Court Divided America. Simon & Schuster. 

Whitehouse, Senator Sheldon. Captured: The Corporate Infiltration of American Democracy. The New Press. 

Whitehouse, Sheldon. The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court. The New Press.

6. Justice Stevens wrote, “To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.” The counting of legal votes, Stevens insisted, could never constitute an “irreparable harm.” (Toobin, Jeffrey. The Nine (p. 191). Knopf Doubleday Publishing Group. Kindle Edition.) 

7. SpeechNow which authorized Super PACs, McCutcheon which threw out the aggregate campaign contribution limits and Americans for Prosperity v. Bonti.

8. Arguably five, if you include Roberts and Alito, because George W. Bush lost the popular vote in 2000 but won it in 2004, the term in which he appointed them. Note: recordkeeping for congressional action before the CIvil War is spotty.

9. John Roberts, C-SPAN, October 11, 2009 quoted in Daley, David. Antidemocratic (p. vii). HarperCollins. Kindle Edition.