The Fight Over the Supreme Court is not Over — Just Ask Sheldon Whitehouse

Flashbacks: an article in the August 17 (2019) Washington Post, about a donnybrook developing around the vacationing Supreme Court, is giving me flashbacks:

It seems like a century ago —

October 4, 2018. The first day of hearings on the Brett Kavanaugh Supreme Court nomination. Everybody was waiting for the predicted bombshell sexual assault testimony by Dr. Christine Blasey Ford.

But that morning I got my timing mixed up and tuned in early, well before the featured fireworks began. As red-robed Handmaids circled outside, my ears were filled with the platitudes and boilerplate of opening statements by members of the Senate Judiciary Committee.

Lucky for me. At first, all were forgettable (& forgotten) including those by the three committee Democrats tipped to run for president (Klobuchar, Booker & Harris), all of whom stumbled and flubbed their opportunities.But I say the timing was lucky for me, because amid the drone, there was an sudden exception to this soporific parade. A major exception. Striking. Stunning.

Sen. Sheldon Whitehouse, with chart, October 2018.

The thunderbolt came in the opening statement by Rhode Island Senator Sheldon Whitehouse.

Who? In this lineup, Whitehouse was previously most distinguished by the fact that he was not running for president, evidently had no interest in it. And thus, the breathless media mavens gathered had no interest in him.

Big mistake. Having evaded the burden of jockeying for higher office, Whitehouse came to the hearing with a different agenda, loaded for bear. He took laserlike aim, shooting holes not just in Kavanaugh’s  reliably rightwing record, but also that of the cohort he was joining, the bloc whose hegemony Kavanaugh was sent to cement.

Whitehouse called the bloc The Roberts Five, and with growing anger he detailed its reactionary record and the anti-worker, anti-consumer, anti-civil rights, anti-dam-near-anything-else humane, pro-special interest agenda it revealed. His ire was backed up by oversized charts, graphs and carefully annotated, scathing chapter-and-verse white papers:

A review of the Supreme Court’s jurisprudence during the Roberts Era reveals that in the most controversial and salient civil cases – those decided by bare 5-4 or 5-3 majorities – when the right wing of the Court has voted en bloc to form the majority, they do so to advance far-right and corporate interests a striking 92 percent of the time.  In those cases, the “Roberts Five” – Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, Justice Anthony Kennedy, and Justice Antonin Scalia (replaced last year by Justice Neil Gorsuch) – have reliably voted in lockstep to help Republicans win elections, to protect corporations from liability, to abridge civil rights, and to advance the far right social agenda. (Emphasis added.)

Two minutes into this brilliant expose, I was on the edge of my seat. Surprisingly coming out of left field. Whitehouse was stripping bare the record of the Roberts Five in–

73 cases that all implicate a major Republican Party interest. Seventy-three is a lot of cases at the Supreme Court.

Is there a pattern to those 73 cases? Oh, yes there is.

Every time a big Republican corporate or partisan interest is involved, the big Republican interest wins. Every. Time.

Let me repeat: In seventy-three partisan decisions where there’s a big Republican interest at stake, the big Republican interest wins. Every. Damned. Time. (Emphasis added.)

Whitehouse’s statement was so good it should have been a game-changer. When the day’s hearing was over, I couldn’t wait to make a blog post out of it.

But naaah. All anyone was interested in that day was Dr. Ford, and the three presidential wannabes. And we know what happened with all that. Ford’s revelations were muffled, stifled & ignored.

Kavanaugh threw a tantrum built on the unforgettable line “I Like beer!” and was soon installed. The feckless presidential wannabees couldn’t land a punch and are today mired in the lower reaches of  pre-primary polls.

But it turns out that all the work Whitehouse put into his memorable opener has not been lost. Which brings us back to the Washington Post today.

The headline was, “Warning or threat? Democrats ignite controversy with Supreme Court brief in gun case.”

The text focused on

the controversy that Sen. Sheldon Whitehouse (D-R.I.) and four other Democratic senators have ignited with a filing that instructs the Supreme Court to either drop a New York gun case it has accepted for the coming term or face a public reckoning.

At stake is a case now before the court, regarding gun control laws in New York.

Whitehouse, as counsel, was joined by Democratic Sens. Mazie Hirono (Hawaii), Richard Blumenthal (Conn.) Richard J. Durbin (Ill.) and Kirsten Gillibrand (N.Y.).

With remarkable candor, the brief

questions whether the court’s conservative majority — nominated by three Republican presidents — is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society, a conservative legal group.

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,” Whitehouse writes. “In the cloistered confines of this Court, and notwithstanding 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.’

The amicus brief also repeats the tally of 73 cases decided for the right by “The Roberts Five,” in more technical, but equally unvarnished language, which is worth quoting at some length

“. . . Chief Justice [Roberts] recently echoed . . . that “[t]his Court is not a legislature.”. . . “It can be tempting for judges to confuse [their] own preferences with the requirements of the law,” . . . to legislate from the bench. To stave off that temptation, justiciability doctrines like standing and mootness function as an “apolitical limitation on judicial power,” ensuring that courts do not exceed their constitutionally prescribed powers. . . .

Recent patterns raise legitimate questions about whether these limits remain. From October Term 2005 through October Term 2017, this Court issued 78 5-4 (or 5-3) opinions in which justices appointed by Republican presidents provided all five votes in the majority. In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party. And in each of these 73 cases, those partisan interests prevailed.

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. . . .

As scholars, journalists, and commentators have observed, this Court has employed a number of methods to circumvent justiciability limits in decisions that moved the law. . . .

The Court and the country have witnessed an accompanying explosion of strategic “faux” litigation—cases fabricated to bring issues before the Court when litigants presume it will give them policy victories. For example, we have seen flocks of “freedom-based public interest law” organizations that exist only to change public policy through litigation, and which often do not disclose their funders. We have seen behavioral signals, like litigants who rush to lose cases in lower courts “as quickly as practicable and without argument, so that [they] can expeditiously take their claims to the Supreme Court” (ordinarily, in litigation, litigants seek to win).

Almost invariably, and as we have seen in this case, such plaintiffs are accompanied by throngs of professional amici, whose common funding sources and connections to the organizations behind the supposed party-in-interest are obscured by ineffective disclosure rules. . . .

These systematic, industrialized efforts often seek to end-run standing, case-or-controversy, and other separation-of-powers guardrails; often obscure the real party-in-interest; and align with a larger and even more ominous pattern—a pattern of persistent efforts by large anonymous forces to influence the Court.

The anonymous funding of the Federalist Society’s “insourced” judicial selection effort; the anonymous funding of the Judicial Crisis Network’s judicial confirmation campaigns (two $17+ million dollar donations, maybe by the same donor, with unknown business before the Court); the anonymous funding of the strategic litigation shops that bring so many cases behind “plaintiffs of convenience”; the anonymous funding of the amicus armada, as many as fifteen at a clip—none of it is healthy, and it all bodes very poorly for the Court if it turns out that these anonymous donor interests are also the beneficiaries of the 73-decision run of 5-4 victories we described, . . .

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.”

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. (Emphasis added)

Naturally, the right wing is livid at thus being called out. The Wall Street Journal dubbed Whitehouse’s text an “enemy-of-the-court brief”; David French in the National Review said it was “easily the most malicious Supreme Court brief I’ve ever seen.”

Whitehouse himself

was unapologetic, saying he was cautioning the court, not threatening it.

“In the same way that you might warn somebody walking out on thin ice — ‘Hey, the ice is thin out there, you want to be careful, maybe you want to come in’ — I think that was the motivation for filing this brief,” said the former U.S. attorney and state attorney general.

“To warn the court that it already has its reputation in some degree of trouble . . . it’s getting to the danger that they might fall through the ice.”

In this record-hot summer, metaphors about thin ice may not seem apt. But it does show that the struggle over the Supreme Court is not a matter of one season. Kavanaugh and his dark-money rightwing backers won a big round last year; but Sheldon Whitehouse has now reminded them that more rounds are ahead, and at least some who plan to stay in Congress still know how to land a punch.

2 thoughts on “The Fight Over the Supreme Court is not Over — Just Ask Sheldon Whitehouse”

  1. Excellent summation of the horrible reality.I have a will to violence as I read this and must think of better ways of doing things. So in essence you are helping me here to give up the idea of violent solutions thru working through them. —— But still it moves and still my heart burns.
    Ben Schultz

  2. The court’s halting the recount of the ballots in the Florida vote for President in 2000 still upsets me to this day. It was :The day the US Supreme Court’s reputation for justice died!” Worse, it refuses to look at the death penalty and how it is used in a racially biased way BECAUSE INTENT has to be proved. Not just “numbers”. Facts don’t seem to count, only “Intent”.

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