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. [Continue reading…]