Essay

Supreme Court Accountability: Nine Unelected People Control the United States

The founders debated whether any court should have final authority over everyone. Alexander Hamilton said the judiciary would always be the weakest branch because it had neither the sword nor the purse. He was describing a world that no longer exists. The sword and the purse have since been delivered to the court by the same network that selected its members.

There is no mechanism to stop them. Nine people, appointed for life, answerable to no electorate, whose decisions cannot be appealed, who determine the limits of their own power, who rule on their own conflicts of interest, who cannot be removed by the executive, cannot be overruled by the legislature on constitutional questions, and who operate under an ethics code they wrote themselves with no enforcement mechanism attached to it. That is the Supreme Court of the United States. It is the most powerful unaccountable body in any democracy on earth. And for the last fifty years, the same coordinated private network has been deciding who those nine people are.

This is not a recent scandal. It is a structural condition that was always one organized campaign away from capture. The campaign arrived. The structure held the door open.

What Hamilton actually said and what he assumed

Alexander Hamilton argued in Federalist 78 that the judiciary would always be the weakest branch of government because it controlled neither the military nor the public finances. It could only judge. It depended on the executive to enforce its rulings. That dependence, Hamilton argued, was a structural guarantee of its limitation. A court that cannot enforce its own decisions cannot accumulate dangerous power.

What Hamilton did not name, because he did not need to, was the informal enforcement mechanism that actually kept the court accountable in 1787. Judges lived in the communities whose lives their decisions shaped. Their neighbors knew them. Their decisions had social consequences that were immediate and personal. The accountability was ambient. It did not need to be codified because it was structural in a different sense: the structure of a small, proximate, physically accountable society where the distance between a ruling and its consequences was short enough that the person who issued the ruling could not avoid them.

That world is gone. The current justices travel with security details, live in gated communities, and fly on private jets funded by the donors whose interests they adjudicate. The communities most affected by their decisions are the communities furthest from their daily lives. The distance between the ruling and the consequence has never been greater. The informal enforcement mechanism Hamilton relied on without naming it has been replaced by nothing. There is no formal mechanism either. The court was always one serious organized effort away from unaccountable capture. The founders assumed that effort would not come. They were wrong about the timeline.

How Hamilton’s weakness became a weapon

Hamilton saw the court’s dependence on the executive as its limiting condition. The executive enforces the rulings. Without that enforcement, the court is nothing. What Hamilton could not model is that dependence can be converted into coordination. The Powell Memo in 1971 identified the judiciary as the highest-leverage target for corporate capture. The forty-year project that followed, documented in the previous essay in this series, delivered six of nine Supreme Court justices through a single coordinated private pipeline by 2024. Those justices then produced the outcomes the network had been building toward: presidential immunity from criminal prosecution, the gutting of the Voting Rights Act, the dismantling of the regulatory state, the reversal of fifty years of reproductive rights precedent. The executive that benefited from those rulings enforces them. The court that produced them was selected by the donors who funded the executive’s political operation. Hamilton’s dependent branch has become the protected one. They are not checking each other. They are covering for each other. That is what the Powell Memo was designed to produce.

The design flaw and the people who found it

The flaw in the design is not that the founders were naive. It is that they built a system that depended on informal social accountability to function, without codifying that accountability, and then watched the country grow into a scale and complexity at which informal accountability no longer operates. A justice who accepts $4.2 million in gifts from a single Republican donor and then rules on cases affecting that donor’s world is not accountable to any formal mechanism. The ethics code the court adopted in 2023 has no enforcement provision. No outside body can investigate a justice. No penalty can be imposed. The justice rules on whether to recuse. The court decides whether the court behaved properly. This is not a gap that formed gradually through negligence. It is the original design at a scale the original designers did not anticipate, encountered by people who understood exactly what it meant.

Clarence Thomas received gifts from Harlan Crow valued at approximately $4.2 million over twenty years. Every other sitting justice combined received $248,000. Thomas did not disclose them. Federal law required him to. He did not recuse from cases touching on the January 6 investigation or the 2020 election despite his wife’s documented involvement in efforts to overturn it. The court decided this was acceptable. The court is the only body with jurisdiction to decide whether it is acceptable. That closed loop is not a corruption of the design. It is the design, encountered by a man who understood that no one could stop him.

The court that is the sole judge of its own legitimacy

Since January 2025, the Supreme Court has issued more than 25 emergency decisions involving the Trump administration, many without written explanation. A court that decides the constitutional limits of executive power, while issuing unexplained emergency orders in favor of the executive that placed its majority, is not a check on that executive. It is a partner to it. The shadow docket, emergency rulings issued without full briefing, without oral argument, without the public explanation that allows scrutiny, has become the primary tool through which the court advances the executive agenda between formal decisions. Hamilton said the judiciary would always be the weakest branch. He did not anticipate a court that had made itself indispensable to the most powerful executive in the world and had received in exchange the one thing he said it could never have: practical immunity from consequence.

By April 2026, 43 percent of Americans approved of the Supreme Court. In 2020 that number was 70 percent. The court’s defenders argue that approval ratings are irrelevant to judicial legitimacy and that independence from public pressure is the whole point of lifetime tenure. That argument was designed for a court that was genuinely independent. It does not extend to cover a court that was selected by a private network, whose members’ lifestyles are funded by donors with interests in their decisions, and which has converted its dependence on the executive into a working partnership. Independence from public accountability and dependence on private donors are not the same condition. Hamilton built the first into the structure. The Powell network delivered the second through the gap he left.

The founders argued about whether any court should have final authority over everyone. They debated it, resolved it imperfectly, and left the resolution dependent on social conditions that no longer exist. The people who found the gap in that resolution did not find it by accident. They studied the structure, identified the leverage point, and spent fifty years and more than half a billion dollars exploiting it. The fact that it worked is not an indictment of the founders. It is a description of what a sufficiently organized and patient private campaign can do to a democratic structure that was not built to withstand it. Nine people control the United States. There is no mechanism to stop them. That was always the condition. Most people were never told.

Essay

How the Supreme Court Was Captured: The Forty-Year Project

The current Supreme Court majority did not arrive by accident. It was the planned outcome of a forty-year project funded by the same people who built the financial and legal architecture documented in the previous essays in this series. Here is the documented history of how it was done.

On August 23, 1971, two months before President Nixon nominated him to the Supreme Court, a corporate lawyer named Lewis Powell wrote a confidential memo to the United States Chamber of Commerce. It began: no thoughtful person can question that the American economic system is under broad attack. The attackers Powell named were not communists or foreign adversaries. They were the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and politicians. His memo was a strategic blueprint for how corporate capital should respond: fund think tanks, infiltrate university faculties, pressure media, build legal capacity, and use the courts as a weapon. The judiciary, Powell wrote, may be the most important instrument for social, economic, and political change.

That sentence was the blueprint for everything that followed. Lewis Powell was not speculating about the judiciary’s potential. He was announcing a project. Within fifty years, six of nine Supreme Court justices would be members or affiliates of an organization that did not exist when he wrote those words, funded by the same donors the Powell Memo mobilized, executing the exact strategy he described.

The infrastructure that was built

The Powell Memo was not a wish list. It was executed with remarkable fidelity. Corporate lobbying offices in Washington quintupled between 1968 and 1978, from 100 to over 500. The Heritage Foundation was founded in 1973. The Cato Institute in 1977. The American Legislative Exchange Council, ALEC, in 1973. The Business Roundtable, which became the most powerful corporate lobbying organization in American history, was formalized in 1972. Every institution Powell called for was built within a decade of his writing, funded by the same network of foundations: the John M. Olin Foundation, the Scaife foundations, the Bradley Foundation, and the Koch family.

The legal arm was the last piece and the most consequential. On April 23, 1982, eleven years after Powell’s memo, the Federalist Society was founded at Yale Law School. Its initial funding was $24,000 from the John M. Olin Foundation. It grew into a professional network of 42,000 right-leaning lawyers, with 150 law school campus chapters, funded by Olin, Scaife, Bradley, and Koch money. In 2003, the Olin Foundation wrote to its trustees that the Federalist Society had been one of the best investments the foundation ever made. The investment was not in legal scholarship. It was in the capture of the judiciary that Lewis Powell had identified as the highest-leverage target in 1971.

The doctrine that was manufactured

The Federalist Society needed a legal doctrine to organize around. It chose originalism, the idea that the Constitution should be interpreted according to the original intent of its framers. The doctrine had an air of principled restraint. It was in fact a strategic choice. Legal scholars Steven Calabresi and Gary Lawson, themselves sympathetic to the originalist project, later documented that originalism was, before 1985, essentially unknown to the legal academy and almost wholly absent from the judicial process. Originalism was not recovered from the founding era. It was manufactured in the years between Powell’s memo and Reagan’s election.

On July 9, 1985, Reagan’s Attorney General Edwin Meese delivered the doctrine’s founding declaration to the American Bar Association. He called for a jurisprudence of original intention and defined its target explicitly: the Warren Court’s expansions of civil liberties and civil rights. The Warren Court had desegregated public schools, guaranteed equal voting representation, and protected contraception. Meese was announcing a legal project to reverse those outcomes, dressed in the language of constitutional fidelity. The Federalist Society was the institutional vehicle. Originalism was the tool. The target was any legal doctrine that constrained corporate power or protected the people corporations treated as costs.

The pipeline

The mechanism for translating the doctrine into judicial outcomes was a man named Leonard Leo. He joined the Federalist Society after graduating from Cornell, spent decades identifying funding sources, and built donor relationships with the Koch Family Foundation and the Scaife Foundation. His project was a pipeline: law school chapters to federal clerkships to circuit court appointments to the Supreme Court. Leo founded the 85 Fund, which channels dark money to conservative causes. He became the de facto personnel director for Republican Supreme Court nominations. During the George W. Bush administration, the Federalist Society quietly became, in the words of one observer, the big donors’ nominations turnstile.

The turnstile produced Clarence Thomas, Samuel Alito, John Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all Federalist Society members or affiliates. In 2016, Donald Trump made the relationship explicit. His judicial nominees, he promised publicly, would all be picked by the Federalist Society. He kept the promise. By 2024, six of nine Supreme Court justices were members or affiliates of the organization. The court that decides what the Constitution means, what corporations can do, what elections can cost, and what rights individuals hold against institutional power, is a court built by the donors, through the pipeline, to deliver the outcomes the Powell Memo called for in 1971.

What the court delivered

Citizens United in 2010 allowed unlimited corporate spending in elections. Hobby Lobby in 2014 extended religious freedom rights to corporations. Janus v. AFSCME in 2018 defunded public sector unions. Dobbs in 2022 reversed fifty years of established precedent on reproductive rights. In 2024, the court granted presidents broad immunity from criminal prosecution for official acts, a doctrine with no historical basis that legal scholars across the political spectrum described as invented. Each decision advanced the agenda that the Powell infrastructure had been building toward for decades. Each was delivered by justices placed on the court through the pipeline that Powell’s memo initiated and Leo’s network executed.

The doctrinal seeding strategy runs through all of it. A justice writes language in an opinion in an unrelated case, not necessary to decide that case, but available to be cited as precedent in a future one. The language sits in the record. Years later, a case arrives that was structured specifically to activate it. The justices writing the seed opinions and the justices deciding the cases that harvest them share the same doctrinal framework. They attended the same conferences. They were vetted by the same organization. This is not conspiracy in the sense of secret coordination. It is the more powerful thing: a shared doctrine, a shared network, and a shared decades-long commitment to the same strategic goals, operating through the normal mechanisms of law.

What this means for the legal challenge

The previous essay in this series documented that corporate constitutional personhood rests on a headnote, a prefatory summary with no legal force, written by a former railroad executive in 1886. The question of whether corporations deserved constitutional rights was never formally decided by any court. The headnote was cited as precedent by subsequent courts. The error compounded into doctrine. The legal argument for dismantling corporate personhood is therefore not primarily a political argument. It is a historical and procedural one: the foundational precedent was never a precedent. A court examining the record honestly would find that 140 years of constitutional rights for corporations rest on a clerical note that was never supposed to have legal force.

The reason that argument has not been made before the Supreme Court is now documented in this essay. The court that would hear it was built by the people who benefit from the doctrine it would challenge. The same network that placed the current majority on the court funds the organizations that would oppose such a challenge. The legal argument exists. The historical record that supports it is primary source material available to anyone. What does not yet exist is a court constituted to hear it fairly.

That is not a call to vote differently. Elections have been part of the capture too. The same donor network that built the judicial pipeline funds the voter suppression infrastructure, the gerrymandering coordination through ALEC, and the dark money that shapes which candidates are viable before a single ballot is cast. Voting in a system this thoroughly designed is necessary but not sufficient. It was never going to be enough on its own, which is precisely why the people who built this system made sure it would not be.

What the documented record of this project makes clear is that the system was not inevitable. It was built. Specific people made specific decisions at specific moments, with documented funding, toward documented goals. None of it was natural. None of it was the neutral operation of law or markets or democracy. It was chosen, and it was chosen deliberately, by people who understood exactly what they were building. That understanding cuts both ways. A system built by human decisions can be understood by the people living inside it. Most of them have never been told what they are living inside. That is what this series is for.

Essay

The Constitution Promised You Due Process. Here Is What This Court Delivered Instead.

The Fifth Amendment says no person shall be deprived of life, liberty, or property without due process of law. The court that is supposed to enforce that guarantee has spent twenty years systematically dismantling it. The deprivations are not abstract. They are in the water. They are in the bodies. They are in the ballot box and the bank account. They are documented, they are sourced, and they were delivered by five people who were placed on that court through a coordinated private project that Madison himself warned us to prevent.

James Madison wrote Federalist 51 in 1788. His central argument was not about any specific law. It was about human nature. If men were angels, he wrote, no government would be necessary. Since they are not, government must be designed so that private interest cannot capture public power. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. Madison had watched the British Parliament corrupted by men who became, in his words, willing tools of the reigning ministry. He wrote the constitutional architecture specifically to prevent that failure. What he could not have anticipated is that the people who would execute it would use the language of his own document to do it.

The previous essays in this series documented how the current court was built: the Powell Memo in 1971, the Federalist Society founded in 1982 with $24,000 in seed money from the same foundations that funded climate denial and the dismantling of electric transit, the forty-year judicial pipeline that placed six of nine current justices through a coordinated private vetting process funded by donors with direct financial interests in their decisions. That history is documented. This essay is about what the court built by that history has done with its power. Not in legal abstraction. In the lives it has touched and the bodies it has cost.

In May 2023, five justices voted to gut the Clean Water Act in Sackett v. EPA. The case involved a couple who had filled a wetland on their Idaho property. The ruling resolved their dispute and did something far larger: it reduced federal protection of the nation’s streams by as much as 80% and of the nation’s wetlands by at least 50%. Up to 70 million acres of wetlands that previously required federal permits before being polluted or destroyed no longer do. The University of Chicago Law Review called it judicial destruction of the Clean Water Act. The downstream effects of an unprotected wetland do not stay in that wetland. They move through connected waterways into the drinking water of hundreds of millions of Americans. Five people voted for that outcome. None of them will drink from the streams it unprotected. The communities that will are the same communities that have always been closest to the costs of decisions made by people with no stake in the consequence.

In 2022, five justices voted in West Virginia v. EPA to apply something called the major questions doctrine to environmental regulation. The ruling held that agencies cannot take actions of vast economic significance without explicit congressional authorization for each specific action. That sounds like judicial restraint. What it actually does is transfer the authority to regulate environmental and public health matters from scientific agencies staffed by experts to Congress, where it is controlled by the same donor network that funded the court. The EPA cannot regulate what Congress has not explicitly authorized. Congress will not authorize what its major donors oppose. The agency is not abolished. It is made into an instrument that can only act when the industries it is supposed to regulate permit it to act. Every future attempt to address the climate crisis through agency action can now be litigated out of existence by any corporation with the resources to file a challenge claiming insufficient congressional authorization. The deprivation is intergenerational. The people who will suffer most from unregulated carbon emissions are not yet born. They have no standing before this court. The corporations that funded the majority’s confirmation through the Federalist Society pipeline have standing in every courtroom in America.

On June 24, 2022, five justices voted to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Sixty-two million women and girls in the United States lost access to legal abortion in their states. The documented health consequences followed immediately. Maternal mortality rose 56% in Texas in the first full year of its abortion ban. Maternal mortality in states with bans is now twice the rate in states where abortion remains legal. Black mothers in banned states are 3.3 times more likely to die than White mothers in those same states. A Johns Hopkins Bloomberg School of Public Health study published in April 2026 found a 9.2% increase in pregnancy-associated deaths in states with bans, equivalent to 68 excess deaths by the end of 2023 alone. Texas saw a 50% jump in sepsis rates among women who lost pregnancies in the second trimester. Infant mortality rates increased 5.6% above expected levels in banned states. Black infant mortality rose 11%. These are not policy outcomes. These are deaths. They are documented in peer-reviewed research. The Fifth Amendment uses the word persons. The women who died in the first year after Dobbs are persons under that clause. They received no process.

In 2013, five justices voted to gut the Voting Rights Act in Shelby County v. Holder, removing the federal pre-clearance requirement that had required states with documented histories of voter suppression to get federal approval before changing their voting laws. Within 24 hours of the ruling, Texas announced a strict voter ID law. Within weeks, North Carolina passed an omnibus voting restriction bill. The deprivation of liberty there is not abstract. It is the practical curtailment of the most fundamental right a citizen holds in a republic: the right to participate in the government that makes decisions over your life. The Voting Rights Act existed because the historical record was unambiguous about what states would do when federal oversight was removed. The record was right.

In 2010, five justices voted in Citizens United v. FEC to allow unlimited corporate spending in elections. The essay on corporate personhood in this series documented what followed: $2.7 billion in super PAC spending in 2024, dark money growing from under $5 million in 2006 to over $1 billion in 2024. Political liberty is a Fifth Amendment liberty interest. When the purchase of electoral outcomes by entities that cannot vote, cannot die, and face no criminal accountability for the consequences of the policies they buy renders the individual vote structurally subordinate, that is a deprivation of liberty by the state. This court created those conditions. It has protected and extended them in every subsequent case challenging campaign finance limits.

That is the water, the air, the body, the vote, and the election. Five people. Each time, five people. Placed on the court through the same pipeline by the same network with the same financial interests in the outcomes. The Fifth Amendment says no person shall be deprived of life, liberty, or property without due process. The people downstream of unprotected wetlands did not consent to drink what flows through them. The women who developed sepsis in Texas did not consent to the conditions that caused it. The voters whose districts were redrawn the week after federal oversight was removed did not consent to the diminishment of their franchise. The workers whose unions were defunded by Janus in 2018 did not consent to the weakening of their collective power. The families of 500,000 people who died of opioids while Purdue Pharma paid a fine did not consent to the legal architecture that made that outcome the designed result. None of them received a process. All of them are persons the Fifth Amendment was written to protect.

The justices who delivered these outcomes call themselves originalists. They claim to be restoring the founders’ intent. Madison’s documented intent, in his own words, in the document that is the intellectual foundation of the system they claim to honor, was to prevent private interest from capturing public institutions. The judiciary specifically, he wrote in Federalist 51, must be as little dependent as possible on those who appoint them. The permanent tenure of judicial appointments was designed precisely to sever dependence on the appointing authority. What the Federalist Society pipeline produced is the exact inversion of that design: justices whose appointments were coordinated by a private organization funded by parties with direct financial interests in their decisions, deciding cases that deliver outcomes beneficial to those same parties, while using the language of the founders to justify what the founders wrote the Constitution to prevent. That is not originalism. It is the inversion of originalism as a weapon against the intent of the document it claims to honor.

The constitutional provisions that address this directly are specific. Article III grants tenure during good behavior. Clarence Thomas received over $4 million in undisclosed gifts from Harlan Crow, a major Republican donor with interests before the court. The federal recusal statute requires recusal when impartiality might reasonably be questioned. The appointments clause requires genuine advice and consent. If the nomination process was coordinated through an undisclosed private pipeline funded by parties with direct financial interests in the nominees’ future decisions, the appointments themselves are constitutionally infirm. The Guarantee Clause requires the United States to guarantee every state a republican form of government. A court designed through coordinated private money to deliver specific outcomes for specific donors is not republican in any sense Madison would recognize. These arguments have not been formally made before the Supreme Court. They will not be heard there. The court that would hear them is the court whose composition the arguments challenge. That is not a legal accident. It is the design completing itself.

A system that is the sole judge of its own legitimacy is not a justice system. It is a power arrangement dressed in justice’s vocabulary. The argument does not travel through the institutions built to contain it: the six corporations that own 90% of US media, operating under the same legal environment this court created, will not make it. The argument travels the way arguments have always traveled when institutions fail: person to person, outside the channels designed to filter and dilute it. The women who understand what Dobbs cost them. The communities watching their water quality standards disappear. The voters who know what happened the week after federal oversight was lifted. They do not need a law professor to explain what due process means. They are living inside its absence.

Madison wrote that ambition must be made to counteract ambition. He meant the structure would do that work. The structure was captured before most people understood it was happening. What counteracts ambition now is what has always counteracted it when institutions fail: people who know what was done and will not pretend otherwise. The Warren Court was not a legal inevitability. It was the product of political pressure that made a different composition necessary. The current court is the product of fifty years of coordinated private investment in the opposite direction. It can be changed by the same force that built it, applied in the opposite direction, which begins with enough people understanding the documented record of what was taken, who took it, and that the Constitution itself was written to prevent it. This series is that record. Pass it on.