Sheldon Whitehouse takes the lead in Supreme Court challenge

Five Democratic senators taking on the Supreme Court

IAN MILLHISER

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.

Whitehouse is one of five senators (the others are Sens. Mazie Hirono (D-HI), Richard Blumenthal (D-CT), Dick Durbin (D-IL), and Kirsten Gillibrand (D-NY)) who filed a brief earlier this week in a Second Amendment case the Supreme Court’s Republican majority could use to dismantle what remains of America’s gun regulations.

Whitehouse is also the lead (and only) counsel on the brief.

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.

New York State Rifle, Whitehouse writes, “did not emerge from a vacuum.” Rather, “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.”

That promotional effort includes $1.2 million Whitehouse says the NRA spent on television advertisements supporting the confirmation of Brett Kavanaugh.

Similarly, Whitehouse writes that “the Federalist Society’s Executive Vice President,
Leonard Leo, has been linked 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.”

Having portrayed the court’s Republican majority as the product of shady interest groups and big spenders, Whitehouse then paints these insiders as enemies of an American consensus — complete with quotations from a recent poll.

Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics” (up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.”

And Whitehouse concludes the brief with a threat. “The Supreme Court is not well,” he writes, “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’.”

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.

Simply put, there’s a reason why Senate Republicans held a seat on the Supreme Court open for more than a year until a Republican president could fill it. Partisan control matters a great deal.

It’s the difference between a constitutional ban on gerrymandering and the decision the Republican majority handed down last June, which held that partisan gerrymandering cannot be questioned by federal judges. It’s the difference between a robust Voting Rights Act and skeletal voting-rights protections picked clean by the Supreme Court.

And, as Whitehouse correctly notes, it’s the difference between a nation that can keep deadly weapons out of the hands of murderers, and a nation where guns are largely unregulated.

The Whitehouse brief provoked predictable outrage from conservative outlets. The National Review’s David French calls it “the most malicious Supreme Court brief I’ve ever seen.”

“The brief is so outside legal norms,” French claims, “that, had I drafted it as a member of the Supreme Court bar, I’d be concerned about facing legal sanction for recklessly impugning the integrity of the Court.”

Perhaps. But you know what was also outside of legal norms? A sitting judge of the United States Court of Appeals for the District of Columbia Circuit angrily confronting senators who credibly accused him of trying to rape Christine Blasey Ford — and then threatening revenge against those Senate Democrats. The Whitehouse brief is best read as several prominent Democrats’ response to “what goes around comes around.”

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.