Image by Ivy Sanders Schneider

A Judicial Coup

Steven Donziger

The Supreme Court has become a political and not a judicial body. Its members wear black robes, look like impartial justices, and try to act like impartial justices, but the majority — Alito, Thomas, Barrett, Gorsuch, and Kavanaugh — were placed there by a dark money network to carry out an extremist agenda on social issues and a corporatist agenda on economic issues, all against the will of the people.

Corruption at the Court is rampant; ProPublica has reported that Clarence Thomas received 38 luxury vacations for free from billionaires. What’s more, to my knowledge, ours is the only court in the world that maintains a private foundation — the Supreme Court Historical Society — where corporations and others can donate funds even while involved in cases that are before the Court.

I have spent 28 years as a lawyer litigating against Chevron over pollution on behalf of Indigenous people in the Amazon. In 2013, we won a historic $9.5 billion pollution judgment in a case upheld by Ecuador’s highest court. The next year, a pro-corporate trial judge in the U.S. invalidated the ruling, and in 2019 took the unprecedented step of hiring a private firm that had previously represented Chevron to prosecute me for contempt of court. (I had refused to turn over my computer.) I spent three years in home detention and several weeks in a federal prison, all based on procedures with no jury. Meanwhile, in the decade since it initially lost the case in Ecuador, Chevron has given nearly $200,000 to the Supreme Court Historical Society. Chevron’s lead lawyer serves on its board. Is it any surprise that the Court denied my appeal? 

The Court’s role should be to protect people from the excesses of government and the corporate sector. Instead — much like Congress — the Court has become an instrument of corporate power. My human rights and constitutional rights would never have been systematically violated had extremist politics and ethical corruption not taken root at the top of this country’s federal judiciary. I am still astounded to have been targeted with what I believe to be the nation’s first corporate prosecution. I was forced to wear an ankle monitoring bracelet 24/7, my every move tracked even while I ate, slept, showered, and moved from one side of my couch to the other, all while on seemingly indefinite house arrest.

Here’s the upshot: most of the Court decisions in the last year that have gone against popular opinion — overturning the right to abortion, blocking the EPA from regulating emissions, blocking student debt relief — have their origins in politics and not law. The fact is that six unelected justices have amassed so much power that they alone can determine what sort of freedom the rest of the 335 million people in our country can enjoy. Over the last two terms, the Court’s slate of extreme decisions has amounted to a slow-rolling corporate-funded judicial coup. Tanks are not in the streets, but it is happening nonetheless.

One partial solution is to radically expand the size of the Court to at least 21 justices and impose twelve-year term limits. The other is to actually change our political system so we have a real democracy. In fact, five of the six Supreme Court justices carrying out what I call a judicial coup were appointed by presidents who did not win the popular vote. 

What’s inside the four walls of the law will never solve the climate crisis without help. However, the law can be an important change agent if it is pressured, via grassroots organizing, to keep pace with, and even outpace, the pressure being generated in the streets. Of the more than 3,000 climate justice cases brought to courts around the world to date, nearly a third were filed in the past five years alone, and many hundreds are still pending. Those cases are starting to move forward — particularly ones brought by students and children, who have the most standing to speak about the future.

Steven Donziger is a human rights and environmental lawyer, a Guardian US columnist, and the creator of the Substack newsletter “Donziger on Justice.”