Politicians who don’t like particular Supreme Court decisions are entitled to criticize those decisions. Or criticize the justices who wrote the decisions. In fact, Americans of all stripes enjoy the role of Monday-morning quarterback every time a blockbuster decision comes down from the high court on a hot-button topic.
But this time-honored tradition of second-guessing the Supreme Court took an ugly turn recently when five Senate Democrats filed a decidedly unfriendly “friend-of-the-court” brief in a gun control case from New York. Four of those are members of the Senate Judiciary Committee which plays a major role in filling judicial vacancies. Friend-of-the-court briefs, aka “amicus” briefs, are submitted by non-parties whose expertise or knowledge on the subject of the litigation might be helpful to the justices. It’s common for members of Congress to submit such briefs in cases they are interested in.
If this particular brief was intended to be “helpful,” though, it can only be considered so in the “or else” sense of the word. As in, take my advice or else.
Initially, the senators urge the court not to take up the case challenging a New York gun law. Their primary argument is that New York has decided not to enforce its own law, which might render the case unsuitable for high court review. By itself, such an argument would be noncontroversial and perfectly legitimate to make.
However, the five senators chose to make their argument not by citing legal precedents and applying logic to facts, but by engaging in character assassination and innuendo against Justice Brett Kavanaugh and organizations that supported his confirmation in 2018.
The brief accuses organizations such as the National Rifle Association (NRA) and the Federalist Society of supporting the confirmation of Kavanaugh last year in order to guarantee decisions on gun control and other issues the senators don’t like. Supposedly, these shady organizations—with anonymous donors!—are not about supporting constitutionalist justices, but about finding justices who will “legislate from the bench.”
What? Senators who support unsupportable decisions like Roe v. Wade and advocate for a malleable “living Constitution” complain that conservative justices legislate from the bench? That’s rich.
As if that’s not bad enough, the senators sink to threatening to change the makeup of the court by adding more justices if the existing ones don’t make the “right” decision to decline hearing the case.
The brief also cites a poll or two where Americans in large numbers (but not a majority) agree that Supreme Court decisions are “too influenced by politics.” But the public by and large has felt that way for decades, because judicial confirmation proceedings have descended into political theater when high-profile confirmation hearings are involved.
Americans watch the Senate Judiciary Committee members during confirmation hearings talk about abortion and religious liberty and other topics as if justices must promise to vote one way or the other (like a campaigning politician) on certain subjects if confirmed. And every time a controversial decision comes down, the mainstream media wastes no time politicizing it. It’s not difficult to understand why people responding to polls about the court assume that it’s too political. It’s being framed that way for the rest of us.
No wonder Chief Justice John Roberts issued an extraordinary rejection of that perception. But he’s a lonely voice in a crowd of politicians and politically oriented news outlets.
If you like naked threats, I’ve been saving the best for last. Here’s how the brief concludes in its appeal to the justices:
“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.”
That’s not a legal argument. It’s not even disguised as a persuasive pitch. It’s a threat. It is blunt force, applied to the court in a thoroughly political, undignified manner. Its authors should have skipped the legal veneer and just used the street language of “protection racket” gangsters: “Nice little court you have there; it would be a shame if anything were to happen to it.”
