The John Roberts Election

Politicians in Robes Part II: How the billionaires captured the Court to remake American “democracy” in their own image

Nearly everything about the 2024 presidential campaign would be unrecognizable to a visitor from 2008 America. How is it possible that an indicted insurrectionist, adjudicated sex offender, and convicted felon could very possibly be elected president for the second time? 

The news of this past week gives us a clue. Billionaire newspaper owners Jeff Bezos (Washington Post) and Patrick Soon-Shiong (LA Times) each killed an already-approved editorial board endorsement of Kamala Harris. Billionaire Trump backer Elon Musk – who has top-secret security clearance and “extraordinary” influence over the federal government through his companies (New York Times) – has been in regular contact with Vladimir Putin since late 2022 (Wall Street Journal), in addition to having started his own career working in this country illegally (Washington Post) despite his own enthusiasm for Trump’s promises of violent mass deportations. Musk has been donating to the Trump campaign, including creating a legally dubious lottery to pay voters, and has been using the platform he owns to spread election falsehoods favoring Trump.

All of that is just the tip of the iceberg. How did our country get so broken? In short, it broke when the billionaires broke it. Billionaires took over just enough of our legal system, and just enough of our media ecosystem, to give themselves more and more power over our political system while making it harder and harder for the rest of us to take that power back. This presidential campaign is unrecognizable because it bears none of the hallmarks of a functioning democracy, and all the signs of a takeover by a few wealthy elites.

The most consequential takeover has been of the Supreme Court. Over the last year, I have written much about how for the first time in American history, the Court has been captured by outside interests – specifically, the plutocrats and theocrats who fund and organize with the Federalist Society. In “Politicians in Robes: Part I,” I explained why this institutional corruption is far more serious than any individual jurist’s personal corruption scandals, and how this capture has created a ratcheting death spiral for American democracy by shifting ever more electoral power to the pluto-theocratic¹ legal movement’s parochial interests. 

We are just a week away from a knife’s-edge election that could seal the pluto-theocrats' victory, as Trump could make Supreme Court appointments that add up to a MAGA majority for at least the next generation. Voters are very alarmed about that possibility once those stakes are made clear to them. It’s long past time to make those stakes clear – and, just as important, to make clear who is responsible for driving us to this brink.

In this post, I will present and explain several new data visualizations that illustrate:

1. Just how disproportionately, and just how quickly, big-money outside spending has come to dominate our politics, as a direct result of the Roberts Court’s 2010 decision in Citizens United; and

2. The extent to which the Roberts majority (and other Trump-appointed judges) have shielded Trump from as much legal accountability as possible before the election (not to mention granted him near-complete impunity in advance if he wins). 

To be clear, we now live in a political system built by the Roberts Court, in which the richest Americans dominate political spending, where rewarding them for their backing is legal, and where insurrectionists are shielded from criminal prosecution by the very judges they appointed to the Supreme Court. And all the while, the billionaire and corporate media have looked the other way.

To be clear, I don’t think Roberts, Thomas, Alito, Gorsuch, Kavanaugh, or Coney Barrett have been “bought off” in the sense that money is making them abandon their previous ideological or judicial commitments. They only made the Federalist Society shortlist for Supreme Court justices in the first place because they are sincerely, deeply committed to giving pluto-theocrats as much power as possible. 

Power to the Plutocrats

Step One: Opening the Floodgates

Citizen United in 2010, along with other cases,² marked a sharp departure from how elections in general and presidential elections in particular were financed, in that together they opened the door to unlimited spending by those not coordinating with the candidate. It is very much worth noting that, according to reporting by Jeffrey Toobin, the Roberts 5 were ready to issue their Citizens United ruling when it was first argued in 2009, but when Souter wrote a blistering draft dissent, Roberts ordered the case to be reheard in the next term, after Souter had retired. 

As this chart from Open Secrets data shows, before 2010, there was effectively no outside spending³ in elections. The amount of outside spending this cycle has already matched 2020, even though the totals are only through September 30th.⁴ 

One of the most misunderstood things about Citizens United, and Mitt Romney’s famous “corporations are people” quotes, is that the decision did not lead to corporations like Exxon pouring unlimited sums into the political system. Instead, it allowed the very wealthy to form new corporations, Super PACs, into which they could pour unlimited sums. In this way, Citizens United supercharged a realignment in the political world, to the advantage of wealthy capitalists over more traditional corporations that manufacture products and offer services. Those wealthy donors, as is well documented in Jane Mayer’s Dark Money and elsewhere, have been the fiscal sponsors of the MAGA movement. As Susan Glasser recently acutely observed in the “How Republican Billionaires Learned to Love Trump Again”: 

… more than forty of the G.O.P.’s biggest super-PAC donors during Romney’s 2012 campaign had never given to a pro-Trump super PAC [while] nearly sixty pro-Trump donors … had given nothing to the pro-Romney super PAC. 

And as recently as June of this year, according to Jeffrey Sonnenfeld, “Not a single Fortune 100 chief executive has donated to [Trump] so far this year, which indicates a major break from overwhelming business and executive support for Republican presidential candidates dating back over a century.” 

So it’s not surprising to see the extent to which outside spending is driven by the richest Americans. 

The following table makes clear just how dependent Trump is on outside spending, and how much more so than any previous presidential candidate. Outside groups account for 60 percent of spending on his behalf, but only 28 percent of spending on behalf of Harris.⁵ (And this is before Musk and many of the other billionaires' contributions you’ve been reading about have been reported.) No other presidential candidate has had more than about ⅓ of spending on their behalf come from outside groups. 

This is extremely consequential, because without the outside spending, Harris would be outspending Trump by more than 3:1 – $751 million to $247 million.

Now, let's turn to the role outside spenders are playing in determining who will control the House and Senate. In 100 percent of the toss-up Senate races, and 85 percent of toss-up House races, outside groups are spending more than the candidates are. Nothing like that was even possible before Citizens United in 2010, because such spending was effectively illegal. But for the sake of illustration, I ran the x-axis back to the beginning of the direct election of senators.⁶ 

The following chart picks up the story in 2000, when we begin to have data from Open Secrets. In 2000, out of state donors (including PACs) gave House and Senate candidates as much as those candidates raised from individuals in their own states. (In the chart, “1,” on the Y-Axis, meaning a ratio of 1:1.) This cycle, outside interests, either through contributions directly to the candidates from PACs or out of state individuals, or through Super PACs and other outside groups, are spending 7 times as much as those candidates are raising from individuals in their own states.⁷ 

And, even if we limit our view just to contributions from individuals directly to candidates, the share candidates are raising from individuals in their own states has dropped from a bit more than two thirds in 2000 to just half now.⁸

The same thing is happening in state elections. Studies have consistently shown that Citizens United significantly increased Republicans’ success in state legislative races. For example, this study “analyzed data from more than 38,000 state legislative races between 2000 and 2012.” It concluded that “The chance of Republican candidates winning state legislative seats increased by about four percentage points on average as a result of Citizens United,” findings that were confirmed by a subsequent study.

Step Two: Decriminalizing Corruption

And it’s not just the amount of outside spending – it's the outsized role this spending gives to billionaires like Musk, who does business with and is under multiple investigations by the federal government. 

This ties back to other Roberts Court decisions on corruption. Throughout Roberts’s tenure as chief, his Court has consistently ruled to narrow federal anti-bribery and criminal fraud laws to all but legalize corruption by private and public actors alike. In 2010’s Skilling v. United States, for instance, the justices significantly limited the scope of the federal “honest services fraud” statute in Enron fraudster Jeffrey Skilling’s criminal case. More recently, in McDonnell v. United States (2016) and Kelly v. United States (2020), the Court gutted the federal bribery, wire fraud, and federal-programs statutes in cases implicating the brazenly unethical conduct of public officials. In last term’s Snyder v. United States, the Court’s six Republican justices ruled that public officials may accept “gratuities” in return for their official actions so long as the reward comes after the official action, which somehow makes it not a “bribe.” 

In 2019, when the FedSoc justices only held a 5-vote majority, the American Constitution Society compiled a list of 73 Roberts Court decisions with a 5-4 split that served a specific agenda, including 32 cases “protecting corporations from liability and letting polluters pollute” and 13 cases “controlling the political process to benefit right-wing candidates and policies.” 

There have been many more decisions in this vein since 2019, of course. This year’s Loper Bright case, overturning the longstanding Chevron doctrine to undermine the authority of federal regulators, is one of the most devastating. While overturning Chevron was commonly described as a “judicial power grab,” it’s much better understood as a corporate power grab. It’s not about whether judges or agencies should be the ones to interpret Congress's efforts to protect workers, consumers, and the environment – it's about whether workers, consumers, and the environment will be protected from corporate predations at all.

And, of course, in the landmark immunity ruling that protected Donald Trump from a pre-election trial on his efforts to set aside the results of the 2020 election, the Roberts Court effectively gave Donald Trump a free pass to commit any corrupt or illegal acts he can plausibly justify as “official” if he is re-elected president. 

Keeping (Donald Trump’s) Hope Alive

In July, I laid out in great detail how if this fact pattern associated with Donald Trump had occurred in any other nation, we would recognize that country’s Supreme Court was executing a constitutional coup. So, remember that Trump could not be a viable candidate for president today without the repeated intervention of the Roberts Court and his other judicial appointments. 

Among other things they have:

Shielded Trump from prosecution for January 6th, both through the egregiously reasoned immunity decision and through the delay created in reaching that decision. With Judge Chutkan’s unsealing of Jack Smith’s motion for immunity determination on October 2nd, as well as the redacted four-volume appendix to that motion on October 18th, we can see that the special prosecutor indeed has compelling evidence that passes the Roberts Court’s astronomically high bar. Thus, the delay prevented Trump from standing trial even for what limited conduct could still be prosecuted. As this timeline shows, a Trump criminal trial for the insurrection could easily have been as early as May. 

Disabled the insurrection clause of the 14th Amendment. By every understanding of the 14th Amendment before their March 4th, 2024 ruling, it was presumed that insurrectionists could not hold federal office, and that a separate act of Congress was not required to enforce this.⁹ Indeed, Justices Sotomayor, Kagan, and Jackson’s concurring opinion directly rebuked the opinion as settling "novel constitutional questions to insulate this court and petitioner [Trump] from future controversy."

Shielded Trump from prosecution for his crime of mishandling classified documents. After first refusing to recuse from the case despite her district’s chief judge raising concerns about her impartiality, Trump’s notoriously biased appointee, Judge Aileen Cannon, first needlessly delayed the proceedings and then dismissed them altogether by declaring Jack Smith’s appointment unconstitutional, when it was too late for an appeal to matter. 

The Trump Scorecard

As the following chart makes clear, in the last two years:

• Every time he has faced a grand jury, Trump has been indicted; 

• Every time he has faced a trial jury, Trump has been found guilty; 

• Every time his cases have come before judges he didn’t appoint, including those appointed by previous Republican presidents, Trump has lost; 

• Whenever surveys have asked, a majority of Americans say Trump has committed crimes; 

• But every time he has come before the justices and judges he appointed, Trump has had his way.

(A larger version of this chart, with full citations, is available here.)

Perhaps you might object that I have left out the numerous judgments against Trump’s efforts to overturn the results of the 2020 election, including those by the Roberts Court. But those rulings reflect that the six Federalist Society justices take their signals from the business community – in particular, the business interests that make up the plutocratic half of the FedSoc coalition. 

More to come on that in “Politicians in Robes: Part III.” 

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

1. 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 “pluto-theocratic” as a compact way of describing this coalition of interests. 

2. McCutcheon v. FEC (2014, striking down aggregate limits on individual political expenditures, allowing unlimited contributions to Super PACs) and Americans for Prosperity Foundation v. Bonta (2021, effectively creating a constitutional right to anonymity for donors to 501(c)(4) “social welfare” organizations, which have become the major vectors for dark-money political spending) 

3. Outside spending, as defined by Open Secrets, “refers to political expenditures made by groups or individuals independently of, and not coordinated with, candidates' committees. Groups in this category range from conventional party committees to the more controversial super PACs and 501(c) ‘dark money’ organizations.” 

4. Although it should be self-evident, in this post I am referring to just spending in federal elections. 

5. To clarify - by “on his or her behalf,” I mean the combined spending of their campaigns and the outside groups supporting them. 

6. Note that only presidential election years are shown for clarity; the same pattern holds in midterms as well, but would make for a confusing chart because all spending is lower in midterms.

7. Thanks to Eric Krasnow for the challenging research to compute these figures from a combination of Open Secrets data and current FEC data. 

8. Ibid.

9. Although it was a per curiam ruling, Justice Barrett concurred but wrote that the court should not have addressed whether federal legislation is the exclusive vehicle through which Section 3 can be enforced, and Justices Sotomayor, Kagan and Jackson co-signed cosigned an opinion that concurred in the judgment, but also said the court went too far.