Earlier this month Senator Sheldon Whitehouse and four of his Democratic colleagues filed a remarkable amicus curiae brief in a gun control case before the Supreme Court. The message to the five men appointed by Republican presidents to the high court was direct and unflattering.
The conclusion – after an amply documented, well focused critique of the court and of the deep-pocketed interests whose dark money has shaped the court: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”
A May 2019 Quinnipiac poll cited in the brief documents these public attitudes. The poll reported that 55 percent of Americans believe the Supreme Court is motivated mainly by politics and a majority believes that “Supreme Court should be restructured in order to reduce the influence of politics.” The reference to restructuring, of course, evokes Franklin Roosevelt’s proposal to pack the court.
Whatever the GOP stalwarts on the Court make of this, Republican commentators have reacted predictably. David French wrote in National Review, “It is easily the most malicious Supreme Court brief I’ve ever seen.” The Wall St. Journal described it as “an enemy of the court brief.” Ted Cruz tweeted, “Extremely concerning to see Senate Democrats threaten federal judges like this. If this isn’t an improper attempt to influence – read: OBSTRUCT – the highest court in the land, then I don’t know what is.”
And let’s not leave out Lindsay Graham: “Packing the Supreme Court… Bad idea. Liberal dream. Trump’s 3rd term is looking better and better!”
On the other side of the aisle, Ian Milhiser (whose book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, reflects his view of the court’s malign influence throughout most of U.S. history) agreed that the brief was hardly typical (though he didn’t get bent out of shape about it):
A tone of ritualized obsequiousness pervades most briefs filed in the Supreme Court of the United States. Judges are powerful and at the Supreme Court level, unaccountable. They wield enormous, arbitrary power not just over litigants but over the lawyers who appear in their courtrooms. So when most lawyers speak to a court, they speak with a painful awareness of the arbitrary control separating the bar from the bench.
Sen. Sheldon Whitehouse (D-RI), however, is not most lawyers.
Senator Whitehouse with Senators Mazie Hirono, Richard Blumenthal, Dick Durbin, and Kirsten Gillibrand are unsparing in their brief, which opposes standing for the plaintiffs in the case (New York State Rifle and Pistol Association Inc v. City of New York, New York). Straightforwardly, since the gun group objected to a New York City ban on transporting guns, and the city has repealed the law, the case would appear to be moot. But the court rejected a petition from NYC to declare the case moot.
The brief portrays the petitioners as deep-pocketed special interests openly promoting a political project:
Confident that a Court majority assures their success, petitioners laid their cards on the table: “The project this Court began in Heller and McDonald cannot end with those precedents,” petitioners submit.
The brief notes that, at this stage, there is no live legal question before the court, no grounds for standing, but that gun rights advocates believe that, with Trump’s appointees on the bench, they are headed toward a victory.
Noting that this “effort did not emerge in a vacuum,” the brief documents the NRA’s $1.2 million television campaign in support of Brett Kavanaugh’s nomination to the court (because he would “break the tie” in Second Amendment cases) and the campaign against a Democratic Senator who opposed the nomination.
Further, a Federalist Society publication suggested that “the logjam has been cleared” with Justice Kavanaugh replacing Kennedy on the court. The brief continued, “This commentary is of particular note because it was published by an organization that has such a prominent role in the Republican Party’s efforts to shape the federal judiciary in favor of donor interests,” and references the Executive Vice President of the Federalist Society, Leonard Leo (whom Politico describes as “the quiet architect of a pivotal shift to the right throughout the federal judiciary”), linking him to “a million-dollar contribution to the NRA’s lobbying arm, and to a $250 million network largely funded by anonymous donors to promote right-wing causes and judicial nominees.”
The brief observes, “The Society counts over eighty-six percent of Trump administration nominees to circuit courts of appeal and to this Court as active members,” and comments on the “massive political spending,” largely from dark money, that funded this effort. In a footnote, the brief quotes former White House counsel Donald McGahn (of Mueller report fame):
Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That is completely false. I’ve been a member of the Federalist Society since law school—still am. So, frankly, it seems like it’s been insourced.
“The influence effort directed at this Court has been industrialized. In this particular ‘project’ to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici.” But, the brief argues, since the donors are hidden from view, it is impossible to know how widespread the support is. “Were there … transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support rallying to a cause.”
In contrast:
Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills. In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their “project.”
Conservatives reject principles, embrace activism
Since the law the plaintiffs objected to has been struck down, the case – by all appearances – is moot. The brief quotes both John Jay, the court’s first chief justice, and John Roberts, the current chief justice, to the same effect: the judiciary was not established to settle hypothetical disagreements. Benjamin Cardozo (former SCOTUS justice nominated by Herbert Hoover) is invoked, rejecting the notion that a judge is “a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness,” and, again, Roberts, cautioning that the Supreme Court “is not a legislature,” though “It can be tempting for judges to confuse [their] own preferences with the requirements of the law.”
Be that as it may, recently – as the Federalist Society project has found greater success – Republicans on the bench have begun to abandon conservative judicial principles: principles that they have embraced in the past. When Clarence Thomas sought confirmation before the Senate Judiciary Committee in 1991, he said that “you cannot simply, because you have the votes, begin to change the rules, to change precedent.” That was then. This is now (Thomas in 2019): “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”
The pattern of outcomes is striking; and so is the frequency with which these 5-4 majorities disregarded “conservative” judicial principles like judicial restraint, originalism, stare decisis, and even federalism.
The brief cites this record: From the term beginning October 2005 through the term beginning October 2017, the Supreme Court issued 78 5-4 (or 5-3) opinions in which the majority consisted solely of Republican-appointed justices. “In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party.” In every case, the justices ruled in favor of the Republican Party’s interests.
With bare partisan majorities, the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed.
The pattern, and the abandonment of conservative legal principles in favor of partisan activism (which I’ve documented in previous posts), is clear. Add the Federalist Society’s decades-long campaign and the unprecedented refusal of the U.S. Senate – once Republicans gained control of the chamber – to confirm Barack Obama’s appellate court nominees, to hold hearings on Merrick Garland’s nomination, to adhere to the ‘blue slip’ rule, and so on. And then add Brett Kavanaugh’s unhinged, aggrieved, conspiratorial hate-fest directed at the Clintons and the Democratic Party during his confirmation hearings, and we begin to hear talk of restructuring the court.
Fair enough. So, why did Whitehouse and company file this brief? The Senator rejects the accusation that he was threatening the court.
But what a warning. “This filing is a badass move by these Senate Democrats. The Republican justices on the Supreme Court should be on notice that the public is quickly losing faith in the court as a legitimate institution.” — Brian Fallon, Executive Director of Demand Justice
Lawrence Tribe wasn’t as enthusiastic about putting the Republican men on notice: “I agree the Court should drop this case as moot and am usually a fan of @SenWhitehouse but I think this brief was inappropriately — and stupidly— threatening. If anything is calculated to get the Court’s back up, it’s a brief like this. Really bad move.”
Professor Tribe made a career out of shaping arguments to appeal to one or another of a series of Republican-appointed swing justices, so – okay – he wouldn’t have written this. Presumably he would have been aiming to influence the current swing justice, John Roberts, though he is much further to the right than swing justices in previous decades.
So, should Whitehouse have focused narrowly on standing, rather than unleashing his grand critique? Should he, if he insisted on raising the broad issues in the brief, have tread more gently? Well, I suppose so, if his intent were to influence John Roberts — that is, unless Whitehouse concluded that bluntness, or (contra his denial) a threat, or perhaps authenticity conveyed through a more direct message, would be more effective at influencing the chief justice.
Or this may be a case of senators being senators, of Whitehouse, Hirono, Blumenthal, Durbin, and Gillibrand just sounding off because they’ve had enough of SCOTUS’s Republican men, and of McConnell and Graham and Cruz and Trump … They might be justified in thinking: Why should Democratic Senators feel constrained about offending the shameless partisans in Donald Trump’s corner? (It’s a different era, Professor Tribe. Those old tricks have seen their day.)
Jonathan Chait writes today about the book American Carnage:
The most interesting revelation in Alberta’s book may be the degree to which Republicans convinced themselves of their own lofty rhetoric. When he predicted that he and his allies would resist Trump’s authoritarianism, thereby proving that their opposition to Obama was genuine, Mulvaney clearly believed it. And when Ted Cruz told his aides during the primaries, “History isn’t kind to the man who holds Mussolini’s jacket,” he surely had no idea what lay in store for him. If Trump has accomplished anything, it is to force Republicans to see their party and themselves a little more clearly.
Well, maybe. If so, then perhaps that’s what’s behind the Whitehouse brief. The five Republican men, if they read the brief, may be ‘forced’ to see themselves a little more clearly. Could that be the point?
Here’s another possibility. Dissenting justices don’t write their opinions to change the minds of sitting justices in the majority, so much as they write to influence future justices. Their hope is that their views will capture majorities at a time that has yet to come.
This amicus brief may be speaking to future justices, to law professors and students, to Democratic officeholders and activists, and perhaps to the four women and men on the court appointed by Democratic presidents.
This may be a shout out to allies. It may serve to lay the groundwork for future decisions and future campaigns.
It cheered me. I’m sure it cheered others. That may be reason enough to have filed it.
