This legal brief, submitted by Senator Whitehouse (D-RI). et al, concerning litigation over New York State Rifle and Pistol Association v. the City of New York that will come before SCOTUS, has caused a bit of a ruckus. Here’s one of the passages which are atypical of briefs written for the Court:
Parties and lawyers seeking to shape the law through affirmative litigation might once have been reticent to openly promote their political agenda in this Court. No longer.
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. Pet’rs’ Reply at 2. Petitioners identify no legal question on which the circuit courts of appeal disagree. They do not suggest the court below “so far departed from the accepted and usual course of judicial proceedings” to require this Court to exercise its supervisory power. Indeed, they do not suggest this withdrawn municipal regulation presents any “important question[s] of federal law that . . . should be . . . settled by this Court.” Rules of the Supreme Court of the United States, Rule 10 (2017). They simply want a majority’s help with their political “project.”
To stem the growing public belief that its decisions are “motivated mainly by politics,” the Court should decline invitations like this to engage in “projects.” See Quinnipiac Poll, supra note 2 (showing fifty-five percent of Americans believe the Court is “motivated mainly by politics”).
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.3 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 selfdefense,” the NRA claimed, “four justices support your right to self-defense. President Trump chose Brett Kavanaugh to break the tie. Your right to selfdefense depends on this vote.” Id.; see Laila Robbins, Conservatives Bankrolled and Dominated Kavanaugh Confirmation Media Campaign, The Hill (Oct. 19, 2018).
NRA spokespersons were similarly blunt: “The NRA strongly supports Judge Brett Kavanaugh’s confirmation to the U.S. Supreme Court because he will protect our constitutional right to keep and bear arms,” said Chris W. Cox, the NRA’s top lobbyist. Press Release, NRA-ILA, NRA-ILA Launches Major Advertising Campaign Urging Confirmation of Judge Brett Kavanaugh (Aug. 7, 2018). “It’s critical that all pro-Second Amendment voters urge their senators to confirm Judge Kavanaugh.”
And etc. National Review’s David French is livid:
I just finished reading of the most astonishing legal briefs I’ve ever read. It is easily the most malicious Supreme Court brief I’ve ever seen. And it comes not from an angry or unhinged private citizen, but from five Democratic members of the United States Senate. Without any foundation, they directly attack the integrity of the five Republican appointees and conclude with a threat to take political action against the Court if it doesn’t rule the way they demand. …
The implication is plain. The conservative justices are doing the bidding of their “corporate and Republican” masters. Their principles are malleable; only the results matter, and the results are dictated by the men and women who supported their confirmation and fund the litigation before the Court. “This backdrop,” the senators argue, “no doubt encourages petitioners’ brazen confidence that this Court will be a partner in their ‘project.’”
On ThinkProgress, Ian Millhiser is entertained – I think:
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. …
The decision to lock Supreme Court nominee Merrick Garland out of the high court, and the decisions to muscle Judges Neil Gorsuch and Brett Kavanaugh onto that court, are the kind of tactics that exposes the molten core of partisan politics at the heart of the Supreme Court’s high-minded rhetoric.
Neither Gorsuch nor Kavanuagh, moreover, possesses even the second-hand democratic legitimacy that normally attaches to presidential appointees. Both men were nominated by a president who lost the popular vote, and were confirmed by a bloc of senators who represent less than half of the country.
The judiciary, Alexander Hamilton wrote in the Federalist Papers, has “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Its power flows entirely from the widespread sense that its decisions are legitimate. Courts “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
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.
Which reminds me that my belief that the judicial system should and must be isolated from the whims of popular sentiment has an implicit assumption: that the judges are not biased in their judgments. If that assumption is false, then the lack of a popular mechanism for removal of a justice, in the face of a partisan Senate controlled by a faction unwilling to do its duty, leaves the nation at risk of losing its respect for the judiciary.
Thus, Millhiser’s conclusion may be prophetic: the harder the Republicans squeeze their prize, the less valuable it becomes while damaging their reputation as well.
This will be a case worth watching if it actually generates a heated response from the conservative bloc.
