Democrats Fire a Warning Shot at the Supreme Court

It only took thirty years or so, but Democrats seem to coming to a slow understanding that the Supreme Court is hopelessly politicized. In an amicus brief, several Democratic senators, led by Sen. Whitehouse (RI) have laid out in very stark terms (by legal standards anyway) what they think of the court (boldface mine):

The brief itself is less a legal document than a declaration of war. Though parts of it argue that the high court lacks jurisdiction over this case, New York State Rifle & Pistol Association v. City of New York, the thrust of the brief is that the Supreme Court is dominated by political hacks selected by the Federalist Society, and promoted by the National Rifle Association — and that if those hacks don’t watch out, the American people are going to rebel against them.


This is, to say the least, not the sort of argument lawyers typically present to a court. Judicial legitimacy flows from the myth that judges are above politics. Lawyers normally take care not to question that myth, because they do not want to anger a judge and because a lawyer’s own ability to make a living flows from their client’s belief that law exists separately from politics.

But, as the polling cited by Whitehouse demonstrates, the myth of the politically agnostic court is collapsing fast. Here’s an telling example: a 2014 review of Obamacare cases by the conservative Washington Times found that “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.” In cases involving America’s most politically charged law, in other words, the best predictor of a judge’s vote isn’t some abstract question about judicial philosophy. It’s whether the judge is a Democrat or a Republican….

In other words, Republicans may come to find that by seizing control of the judiciary through constitutional hardball, they did so much damage to their prize that it is no longer worth having. The Whitehouse brief is an early warning sign that Democratic elected officials are, at the very least, ambivalent about whether they should obey courts that are increasingly seen as illegitimate. If those courts push too hard, that ambivalence could harden into something that will do permanent damage to judicial power.

This really isn’t an overstatement. From the brief (pdf; boldface added, notes removed for clarity):

Accordingly, justiciability doctrines, such as standing and mootness, have evolved to serve as an “apolitical limitation on judicial power,” confining the courts to their constitutionally prescribed lane…. In short, courts do not undertake political “projects.” Or at least they should not.

Yet this is precisely—and explicitly—what petitioners ask the Court to do in this case, in the wake of a multimillion-dollar advertising campaign to shape this Court’s composition, no less, and an industrial-strength influence campaign aimed at this Court. Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gun-safety regulations. Particularly in an environment where a growing majority of Americans believes this Court is “motivated mainly by politics,” rather than by adherence to the law, the Court should resist petitioners’ invitation.

Then Whitehouse gets mean:

Petitioners’ effort did not emerge from a vacuum. The lead petitioner’s parent organization, the National Rifle Association (NRA), promoted the confirmation (and perhaps selection) of nominees to this Court who, it believed, would “break the tie” in Second Amendment cases. During last year’s confirmation proceedings, the NRA spent $1.2 million on television advertisements declaring exactly that: “Four liberal justices oppose your right to self-defense,” the NRA claimed, “four justices support your right to self-defense. President Trump chose Brett Kavanaugh to break the tie. Your right to self-defense depends on this vote.”

…The [far right Federalist] Society counts over eighty-six percent of Trump administration nominees to the circuit courts of appeal and to this Court as active members. It is not yet clear who the powerful funders are behind Leonard Leo and the Federalist Society judicial selection effort, nor what took place as the Federalist Society was “insourced” into the Trump administration’s judicial selection process. But massive political spending and secrecy are rarely a salubrious combination

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 not withstanding 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.”

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 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.

Damn. Needless to say, professional conservatives were mighty butthurt. Yes, the same movement which still decries the Warren court (Earl Warren retired in 1969–fifty years ago) is complaining that Democrats are attempting to ‘politicize’ the Supreme Court, even as Whitehouse’s brief, along with anyone who has been paying the slightest attention, knows the court is operating as a de facto legislative body, albeit one with very weird rules about what it will and will not legislate.

The professional Democratic class really needs to get past legal victories that are a half century old, and realize that the Supreme Court is a Republican body. Then they need to pack the court(s).

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2 Responses to Democrats Fire a Warning Shot at the Supreme Court

  1. Even when they aren’t political, judges have become, at best, referees deciding which is the best team of lawyers. We desperately need something else, perhaps a professional class of judges that doesn’t come from (current) law schools or politics.

  2. Zachary Smith says:

    After a quick search I found the Supreme Court has had as few as 5 justices and as many as 10. Going to 11 or 12 for a few years may be necessary. This assumes the Pelosi Wing of the Democratic party is on board with the idea – and that is probably a dangerous assumption for Mrs. “Business As Usual” Pelosi.

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