The Industry’s Court in a Stolen Republic
A Crisis Dispatch
On April 18, 2026, the New York Times published the most consequential breach of Supreme Court confidentiality since the Dobbs draft leak — and, I would argue, a more consequential one. Adam Liptak and Jodi Kantor obtained internal memos that the justices wrote to one another during the five days in February 2016 when the Court was deciding whether to block Barack Obama’s Clean Power Plan. The memos, written in the institutional formality the Court uses to insist on its own dignity, document the reasoning that produced what Stephen Vladeck has called the modern shadow docket. They also document something more specific. They document the capture of the Court of the United States by the fossil fuel industry.
In a piece of memoranda that none of us were ever meant to see, The Chief Justice of the United States, John Roberts, wrote to his colleagues that a 2 percent decrease in coal production over a single year constituted irreparable harm requiring unprecedented emergency intervention. He cited a $480 billion industry-cost figure that his own footnote conceded was likely at the high end of a possible cost range, and used it anyway. He invoked the principle that capital expenditures already incurred could not be undone.
In sixteen pages of memoranda, no justice — not Roberts, not Alito, not Kennedy, not Kagan, not Breyer, not any of the other priestly justices — used the words “climate change”. The harms the regulation existed to address, which the Obama administration’s modeling estimated at between $55 billion and $93 billion annually by 2030, did not appear in the Court’s deliberation. Not even as peripheral or footnote — they did not appear at all.
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The mechanism Roberts invented in February 2016 to block the Clean Power Plan is the shadow docket as we now know it.
Before the Clean Power Plan stay, full-court emergency relief respecting national policies was, in Vladeck’s documented assessment, virtually nonexistent. The procedural posture Roberts pioneered — five-day sprints, no oral argument, no written opinion, unsigned orders — has since become the principal vehicle through which the conservative majority shapes American policy. The first Trump administration filed forty-one emergency relief requests in four years, against the eight that George W. Bush and Barack Obama combined filed across sixteen years. The second Trump administration has, in its first fifteen months, extracted approximately twenty wins from this same mechanism — covering mass federal layoffs, racial profiling in immigration sweeps, the termination of legal status for hundreds of thousands of immigrants, the rewarding of administration defiance of lower court orders. The trend line is, you might say, somewhat conspicuous.
It’s of course worth mentioning, that defenders of the conservative legal project that has produced this Supreme Court majority will insist that these robed barons of law in our sacred third branch of government, are engaged in restoring the American legal landscape back to some purer tradition, in line with some notion of the original intent of the Founders.
I write about the Founders quite a bit in these pages, and I don’t recognize their theory of law and republican institutions in the minds of these justices. They are reading the founding documents the way Curtis Yarvin read Magna Carta in our recent debate, which is to say not at all. I wrote about that exchange in The Bell. Except maybe Gorsuch on his better days. Which are fewer than the republic deserves of his lifetime occupancy of the bench he casts legal judgements from.
The Brennan Center‘s Alicia Bannon, writing on April 24, helpfully named the structural feature that the leak makes irrefutable. In 2016, the Roberts Court applied the irreparable harm standard with maximum scrutiny to a Democratic regulation that would have imposed costs on the fossil fuel industry. Since January 2025, the same Court has granted Trump-administration emergency relief twenty times out of twenty-five attempts, with what Bannon documents as no apparent irreparable harm to government other than generalized harm from delay. No costs costed. No harms weighed. Just the granting.
This asymmetry is a function of a clear corruption of interests. It cannot be merely dismissed as the ordinary noise of a divided court producing different outcomes in different configurations. It is a one-way valve. Maximum scrutiny applied to regulatory action that threatens fossil fuel economics. Zero scrutiny applied to executive action that serves it. These internal memoranda show that plainly to any dispassionate observer.
This is what captured means in its precise philosophical-legal sense. The institution operates on a standard that systematically advantages a specific industry against the public interest, and the standard is durable across cases and across years. The Justices are not bribed in the cartoon sense. They are something worse than bribed. They have internalized the industry’s perspective so thoroughly that they have ceased to recognize it as a perspective at all. The fossil fuel industry’s economic concerns are harms. Documented, weighed, treated as load-bearing in the institution’s reasoning. The public’s climate harms are not even visible enough to be dismissed. Mere un-judicable abstractions, you see.
The most articulate contemporary defense of the captured Court is being conducted by Sarah Isgur, whose book Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court was published on April 14, 2026 by Penguin Random House. Four days later, the Times published the Roberts memos. Isgur’s press tour has been, since April 18, a counter-narrative campaign against documents her thesis cannot accommodate.
Isgur’s defense, as articulated on NPR‘s Morning Edition on April 14, runs through what she calls the “3-3-3 axis” — replacing the conventional 6-3 partisan frame with a model in which a second axis runs from order-loving institutionalists to true chaos agents. Roberts is the institutionalist. The Court is doing its job. The threats to the Court come, in her formulation, from the other two branches not doing their jobs properly. On the shadow docket specifically: Donald Trump hasn’t won a single major case on the merits docket. Where he has done well is the interim docket. But he has lost about a hundred and thirty. Donald Trump is still losing way more than he’s winning. All they’re doing is setting the status quo while those cases are pending.
I’ll grant Isgur the empirical point. Trump has, in fact, lost most of his merits-docket cases. The tariff case, the recent constitutional challenges, the bulk of the formal opinions — these have gone against the administration. This is true and worth conceding. The concession does not weaken the structural diagnosis, however. It does the opposite, because the merits-docket losses are the institutional cover for the shadow-docket wins. The Court wants both—the protection of industry and Trump-administration prerogative through the unsigned, unreviewed, unaccountable interim docket. It wants the appearance of neutrality through the reasoned merits-docket decisions that occur slowly enough to leave the operational damage in place. The merits-docket losses are the alibi for the shadow-docket wins. This is all a PR strategy, really.
The irreparable harm standard the leak documents is asymmetric, not institutionalist. In 2016, Roberts called a two percent decrease in coal production over a single year irreparable harm sufficient to justify the first nationwide-policy emergency stay in the Court’s history, before any lower court had ruled on the merits. In Trump v. CASA, decided June 27, 2025, the same Court granted the administration a partial stay of injunctions against an executive order that every lower court that examined it had found facially unconstitutional — without finding any government irreparable harm beyond the generalized harm of policy delay. An institutionalist applies the same standard across cases. Roberts did not. Telling, I think.
The CASA majority deliberately punted on the merits, and the punt was the favor. Justice Barrett’s 6-3 opinion did not address whether Trump’s birthright-citizenship executive order was constitutional. The Court instead found universal injunctions historically unauthorized under the Judiciary Act of 1789 and forced civil-rights plaintiffs into the slower, more brittle class-certification track — where, as the American Immigration Council documented, the government can immediately appeal any grant of class certification. Isgur frames this as judicial humility. The Court is just setting the status quo. But the status quo it set is one where a facially unconstitutional executive order remains operationally enforceable against everyone outside a certified class for as long as litigation takes. This is not who decides. This is giving the Trump administration a year of de facto enforcement on something the merits clearly forbid — exactly the same gift Roberts gave the fossil fuel industry in 2016 by blocking the Clean Power Plan without merits review.
The 2016 memos prove Roberts does not even believe his own current standard. Because he wrote in February 2016 that absent a stay, the Clean Power Plan would cause “substantial and irreversible reordering of the domestic power sector before this court has an opportunity to review its legality”. This begs a juxtaposition — birthright citizenship is among the most settled constitutional questions in American jurisprudence — United States v. Wong Kim Ark in 1898, 127 years of binding precedent. If irreversible reordering before the court has an opportunity to review is the standard, stripping citizenship from infants born on American soil is the textbook case for it. Trump’s executive order had been blocked by every lower court that examined it. Roberts had every doctrinal tool he used in 2016 available to him in 2025. He reached for exactly none of them. Barrett, the only woman of the bunch, suggested a doctrine of presumed constitutionality.
Where the hell was that doctrine 2016, when Roberts reached for an extreme, historically unprecedented intervention on a lower court interlocutory matter involving the regulation of carbon emissions?
Isgur’s frame requires the standard to be neutral and the application to be principled. The leak documents the standard as industry-calibrated and the application as outcome-driven. Her thesis cannot survive this. To be fair, her thesis was published before the documents emerged. Which I suppose is not a failure of intellectual honesty on her part. But it is, at least, a failure of timing combined with a frame that cannot accommodate disconfirming evidence. The press tour continues. The frame continues to be sold. The leak continues to exist.
There is also a tic in Isgur’s NPR appearance worth marking. When pressed by Inskeep on the Trump immunity ruling and on Dobbs, she conceded: “those are two perfect examples of cases that are ripe for criticism.” This is the rhetorical move that lets her sell the 3-3-3 frame at all. The institution is healthy. The individual decisions just happen to be ripe for criticism in a pattern that runs in one direction. The just happen to is doing all the work. The institution is the sum of its decisions. When the decisions running in one direction are the consequential ones — immunity for the executive, dismantling of voting rights, evisceration of regulatory authority, gift of operational enforcement to facially unconstitutional executive orders — and the institution’s defenders are reduced to conceding that each individual case is ripe for criticism while insisting the institution itself is sound, the defense has become a costume too. The institution is what it does and what it does is documented by these leaks.
I think the leaker is a patriot, personally. I do not apologize for that stance.
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The seats from which Roberts now operates this mechanism were purchased. I use the word with care. They were purchased through a documented dark-money pipeline that runs from the fossil fuel industry through the Republican Attorneys General Association and the Federalist Society‘s network into judicial confirmation campaigns. The receipts are public.
Citizens for Responsibility and Ethics in Washington has tracked the pipeline across multiple investigations. Leonard Leo’s Marble Freedom Trust, established in 2020, controls a $1.6 billion dark-money fund. The Trust gave $153 million to Leo’s Rule of Law Trust in 2021. The Rule of Law Trust gave $36.3 million in grants to allied organizations in 2020 alone, with the Concord Fund — formerly the Judicial Crisis Network, the organization that ran the campaigns to confirm Gorsuch, Kavanaugh, and Barrett — as the largest single beneficiary. CRC Advisors, the firm Leo controls, took in $24.9 million from Leo’s 85 Fund in 2023, with $80 million flowing from the network to CRC since Leo took over the firm in 2020.
The fossil fuel industry’s entry into this network runs through the Republican Attorneys General Association, which has received $5.8 million from oil-and-gas companies and their lobbying groups since 2020 alone. The Concord Fund — Leo’s confirmation-campaign vehicle — has given RAGA $18.8 million since 2014, including $2 million in the first half of 2024, making it RAGA’s largest single donor. Koch Industries, the American Petroleum Institute, and the American Fuel and Petrochemical Manufacturers have written six-figure checks. The circuit closes at every connection point.
The individual-justice-level entanglements are documented through ProPublica‘s investigative record. Clarence Thomas accepted, across decades, what ProPublica characterized as luxury travel from Republican megadonor Harlan Crow virtually every year. Crow purchased Thomas’s mother’s home and adjacent properties in 2014 for $133,363, undisclosed by Thomas. Samuel Alito accepted a 2008 fishing trip to Alaska on a private jet that could have cost $100,000 one way if chartered separately, organized by Leonard Leo, with the lodge stay paid for by another major conservative donor. The trip was undisclosed. Singer, the donor who flew Alito on the jet, then had his hedge fund Elliott Management appear before the Court at least ten times, with Alito voting in his favor in a 2014 Argentina case that netted Singer’s fund $2.4 billion. Alito did not recuse from any Singer matter.
Singer’s Elliott Management currently holds Suncor Energy as its second-largest position at $2 billion, representing 11 percent of its portfolio. Suncor is the same company whose climate-tort case is now on the Supreme Court’s docket, scheduled for the October 2026 sitting. The Federalist Society has hosted public events on the case under titles invoking federalism and judicial power. The American Petroleum Institute has filed an amicus brief. The U.S. Chamber of Commerce has filed an amicus brief. House Majority Leader Steve Scalise and 102 members of Congress have filed amicus briefs. The Trump Department of Justice has filed a brief urging the Court to intervene. Twenty-six Republican attorneys general — funded by RAGA, funded by Concord Fund, funded by the broader Leo network, funded by the oil industry — have filed amicus briefs.
The industry that funded the network that produced the Justices is now asking those Justices, through that network, for permanent immunity from state climate liability. This is, to put it mildly, an arrangement.
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I want to slow down here, because the next layer requires care. There is a parallel corruption layer running through Gulf oil sovereigns, Israeli political-intelligence networks, and a documented financial broker named Jeffrey Epstein. The Department of Justice’s 2026 release of more than 3.5 million pages of Epstein documents establishes patterns that warrant separate treatment, with appropriate epistemic care about which connections are documented and which are inferential.
Documented through the Miami Herald, Reuters, Middle East Eye, Forbes, and Al Jazeera: Epstein positioned himself as financial advisor to Mohammed bin Salman, with twice-monthly meetings demanded, review power over the Saudi central bank and sovereign wealth fund proposed, and a proposed small palace requested as residence. He advised against a New York listing of Saudi Aramco. The Aramco IPO listed in Riyadh, not New York, in 2019. He received advance intelligence about the Ritz-Carlton corruption purge from an unidentified source. He maintained documented relationships with Sultan Ahmed Bin Sulayem of Dubai’s DP World, with members of Qatar’s ruling family, and with other Gulf-sovereign actors. He used these relationships to broker meetings between Israeli political figures — principally former prime minister Ehud Barak — and Gulf interlocutors. He invested in Carbyne, an Israeli surveillance technology company staffed by veterans of Unit 8200, the Israeli military cyber-intelligence unit, in a structure that Forbes documented as financially concealed through a Barak-established holding entity.
The Israeli government, through its mission to the United Nations, installed surveillance equipment and access-control protocols at an Epstein-managed Manhattan apartment building where Barak regularly stayed. Wall Street Journal reporting cited in the CounterPunch analysis documents Epstein scheduling at least thirty-six meetings with Barak between 2013 and 2017. A 2018 email in the DOJ files shows Epstein joking with Barak: You should make clear that I don’t work for Mossad. The joke is doing the same evasive work that the leaked Roberts memos do — performing transparency about a thing the parties prefer not be examined.
What is documented at the level of correspondence and financial relationship: Gulf-oil access, Israeli political-intelligence entanglement, the Carbyne surveillance-investment nexus, the Wexner Foundation’s operational engagement with Israeli strategic communications. What is alleged but not formally established: that Epstein operated as a coordinated intelligence asset for any specific government. The 2020 FBI memo from a confidential source asserting that Epstein was trained as a spy under Barak is in the public record but contested. The structural picture the documents establish is that Epstein was, at minimum, a broker positioned at the intersection of Gulf oil capital, Israeli political-intelligence networks, and elite American financial-legal-political figures. Whether the brokerage was operationally coordinated with any single intelligence service is the question that remains open even as the financial and political relationships become increasingly clear.
The relevance to the Court-capture story is structural rather than direct. The fossil-fuel-industry capture of the Supreme Court that the Roberts memos document was funded principally through domestic dark-money channels — Koch, the API, the Concord Fund, the Leo network. The parallel Gulf-Israeli-Epstein layer documents foreign-capital-and-intelligence networks operating on adjacent American legal-political terrain through different channels. The two layers are not the same operation. They are corruption ecosystems whose memberships and financial flows overlap at specific nodes. Leon Black, who paid Epstein $158 million between 2012 and 2017, is a major Republican donor whose Apollo Global Management has interlocking interests with the broader donor networks. Wexner, Epstein’s original benefactor, was simultaneously a major figure in pro-Israel American philanthropy and adjacent to the donor networks that produced the Federalist Society‘s judicial pipeline. The connections are documented at the level of overlapping memberships and parallel flows. They are not documented at the level of single-operation coordination, and intellectually careful writing on this topic should not claim more than the documents establish.
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Then we come to Mr. Kushner. Affinity Partners, founded in 2021, holds approximately $6.16 billion in assets under management as of April 2026, with 99 percent of that funding from foreign nationals — principally the sovereign wealth funds of Saudi Arabia, the United Arab Emirates, and Qatar. The Saudi Public Investment Fund, controlled by Mohammed bin Salman, committed $2 billion to Affinity shortly after Trump’s first administration concluded. The PIF advisory committee’s internal due diligence, obtained by the New York Times in April 2022, rated Affinity‘s operations unsatisfactory in all aspects, objected to the inexperience of the management, identified the kingdom as bearing the majority of the investment and risk, characterized the management fee as excessive, and flagged public relations risks from Kushner’s White House role. The full PIF board, led by MbS, overturned those recommendations within days. Of course they did.
Kushner is, at the time of this writing, continuing to serve as Donald Trump’s Special Envoy for Peace in the Middle East. His investors are the governments whose interests he is simultaneously negotiating with as the official representative of the United States. He met Iran’s foreign minister in Geneva. The talks failed. The United States and Israel then bombed Iran in a war that Donald Trump has, by all available indication, lost — at the cost of the closure of the Strait of Hormuz, the doubling of global jet fuel prices, and the failure of Spirit Airlines whose final flight landed yesterday. At Davos in January 2026, Kushner announced the administration’s New Gaza initiative while simultaneously soliciting billions of dollars in additional Affinity investments from global business leaders at the same conference.
The New York Times documented in March 2026 that Kushner had been seeking $5 billion in additional capital during his envoy tenure. Representative Jamie Raskin announced the House Judiciary investigation on April 17, framing the conduct as implicating the Foreign Agents Registration Act, federal bribery statutes, and conflict-of-interest provisions. The deadline for Kushner’s response was April 30. We are now in the post-deadline window during which the institutional response will either materialize or fail to.
The historical precedent is Marc Rich. The pardon Bill Clinton issued in his final hours in office on January 20, 2001 was secured through a lobbying campaign organized by former Mossad senior officer Avner Azulay and former Israeli prime minister Ehud Barak, who personally lobbied Clinton. Rich, the largest tax-evasion defendant in American history at the time, who had traded with Iran during the hostage crisis in violation of the embargo, who had sold Iranian oil through a secret pipeline to Israel while under U.S. sanctions, received a presidential pardon. Clinton acknowledged on the record that Israel did influence me profoundly in the pardon decision. The Rich template — Israeli government deploying political capital to secure American executive action benefiting an oil-connected operator — is the historical structure that the current Kushner conduct repeats at scale, with a sitting envoy rather than a fugitive trader, and with sovereign wealth fund investments rather than philanthropic donations.
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This is one organism. The four layers — the captured Court, the dark-money pipeline, the foreign-capital-intelligence layer, the Kushner conduit — are not four separate scandals. They are aspects of a single corruption ecosystem operating at the heart of the American republic. The connections among them are sometimes direct and sometimes structural. The Roberts memos document the captured Court directly. The dark-money pipeline that produced the Justices is documented through CREW, ProPublica, and Penn Center investigations. The Epstein-Kushner-Gulf layer documents the foreign-capital corruption running parallel through different channels with overlapping personnel. The Suncor v. Boulder case scheduled for the October 2026 sitting is the live test of whether the captured Court will deliver the immunity the industry purchased.
Here is what I would have a future pro-republic Congress do, if I were in a position to demand it. And I demand it anyway.
Shadow-docket reform legislation, codifying the standards under which the Court can grant nationwide emergency relief, requiring written opinions naming voting Justices, restricting the use of unsigned shadow docket orders to block executive action before any lower court has ruled on the merits. The asymmetry the Roberts memos document would be structurally impermissible under properly drafted legislation.
Binding Supreme Court ethics rules, codified in statute. The Thomas-Crow real estate transaction and the Alito-Singer fishing trip would constitute clear disclosure violations under the standard that applies to every other federal official. The Court has operated under a voluntary code that the Justices themselves enforce. This has not worked. Statutory enforcement by inspectors general independent of the Court itself is the only mechanism that addresses the structural problem.
Senate Judiciary Committee subpoenas on the leaked memos. The memos are now in the public reporting record. The Committee has the institutional authority to compel testimony from former and current clerks, from the Justices themselves on the standard applied in 2016 versus the standard applied since January 2025, and on the relationship between the Court and the Federalist Society network that produced its current majority.
Foreign Agents Registration Act enforcement on Affinity Partners. The Raskin probe is the opening of this enforcement track. The conduct meets the definitional threshold and the institutional response will determine whether FARA remains a meaningful statute or becomes another instrument that applies asymmetrically — to the small actors and the foreign students, but not to the family of the President.
Internal Revenue Service and Federal Election Commission review of the RAGA-Concord Fund pipeline. The dark-money flows are documented. The coordinated litigation strategy is documented. The structural question is whether these organizations are operating outside their claimed nonprofit purposes, and the answer is institutionally available if the institutional courage exists to ask.
Declassification of the remaining Epstein DOJ files. The 2026 releases are partial. The redactions are extensive and include national-security justifications that almost certainly cover the foreign-intelligence-coordination questions that remain contested. Congressional declassification authority is the mechanism for resolving what the redactions are protecting.
Suncor v. Boulder as the litmus case. The Court will hear the case in the October 2026 sitting. If the captured majority extends its 2016 logic — the logic the leaked memos document — to grant fossil fuel companies immunity from state climate liability, the circuit closes. No level of American government will be able to hold the industry accountable for the climate destruction it has produced. At that point the Suncor decision becomes the clearest signal that legislative shadow-docket reform, ethics enforcement, and FARA action are not sufficient. Structural interventions — court expansion, jurisdiction-stripping, the more dramatic constitutional remedies — would become the only mechanisms remaining for restoring the framework the Founders established.
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The Republic the Founders established was built on the structural premise that the three branches of government would check each other, that institutional jealousy would produce institutional integrity, that the slow accumulation of deliberative practice across generations would maintain the architecture against the corruption pressures any wealthy society generates. That premise has failed in our current moment. The executive lies to citizens with reckless abandon. The Court protects the lying. And the Congress that should represent the people has, with the exception of figures like Raskin doing their work against the gravity of partisan capture, done nothing about any of this. Nothing.
I have written across these pages, for many months, about what I take the foundational political question to be. That the polity is the architecture that allows love, in its older non-sentimental sense, to be sustained at scale. The Court is one of the architectural elements that makes the polity possible. The arguments I have advanced in The Two Materialisms and No, Government Should Not Be Pro-Business are not, on the documentary record now in front of us, abstract. When the Court is captured by a specific industry — when the Justices’ own correspondence reveals that the standard they apply is calibrated to that industry’s economic concerns and blind to the public’s climate concerns — the architecture has been corrupted at a load-bearing structural element. The corruption is not metaphorical. It is documented in the Justices’ own handwriting, on chambers letterhead, in the formality with which the institution insists on its dignity.
The dignity is a costume that the leak has revealed as such. The same costume I diagnosed at the level of individual apologists in The Most Articulate Apologist, now visible at the institutional level. What remains underneath is what was actually there: a court that exists to protect the industry that funded the network that produced the Justices who serve the industry that paid for the seats they occupy. This breach of confidentiality reveals what interests the institution has been serving for a decade, and will continue to serve until structural intervention removes the captured majority from its power.
I reject any notion of comity between a future pro-republic Congress and this court, and I would counsel impeachment and removal of these justices, if I had a say in the matter.