Law & the Courts

To Save a Bad Gun Law, Democratic Senators Threaten the Supreme Court

Supreme Court building in Washington, D.C. (Molly Riley/Reuters)
In a remarkable brief, they impugn the integrity of conservative justices and conclude with an ominous and improper warning.

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 brief is so outside legal norms 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.

Here’s the background. Senators Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand filed their short brief in a case called New York State Rifle and Pistol Association v. the City of New York, the first Second Amendment case the Supreme Court has taken in nearly a decade.

If that sounds momentous, don’t be so sure. At issue is an extremely bizarre New York City law that banned the transport of a locked, unloaded licensed handgun outside the home unless the gun owner is traveling to one of only seven shooting ranges in the city. While the odds were remote that the Court would issue a sweeping Second Amendment ruling in a case involving a truly niche New York City law, it seemed likely that SCOTUS would strike down a regulation so strict that it prevented a person from taking his gun to a second home or even on a vacation to a jurisdiction that permitted him to arm himself.

And so — after fighting for its regulation through years of lower-court litigation — the city and state of New York changed their laws, slightly loosening the transport restrictions to allow a person to take their gun to a second home, a gun range, or a shooting competition outside the city. New York then filed a motion arguing that its legal changes rendered the petitioners’ claims moot. The New York Rifle and Pistol Association disagreed, arguing that even considering the city’s “miserly” changes, the city rules still violated the Second Amendment.

The ostensible purpose of the Democratic senators’ brief is to support the city’s claims that the case is moot and should be dismissed. Fair enough. Senators have the same rights as any other citizen to have their voice heard in the nation’s highest court, and mootness arguments are common when defendants change rules to evade judicial review.

The true intent of the brief, however, is to cast aspersions on the integrity of the Court itself. The senators ask the Court to dismiss the case to “stem the growing public belief that its decisions are ‘motivated mainly by politics.’” It then details how much money the NRA spent to support the confirmation of Justice Kavanaugh (there’s no mention of the amount of money progressive groups have spent to support the confirmation of progressive judges), questions the sources of money funding amicus briefs opposing New York’s law, and then claims that if there were transparency, the petitioners’ “amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support rallying to a cause.”

It gets worse. Read this remarkable paragraph:

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.

Note that there is no concern expressed with lockstep voting by progressives. There is no acknowledgment that different justices have competing judicial philosophies. Nor is there any recognition that in hundreds of cases the philosophical divides are not so apparent, and that Democratic- and Republican-appointed justices vote together with striking frequency.

But the senators aren’t done. Not by a long shot:

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.

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.’”

I’ve got a question for the senators. When progressive activist groups organize to support the confirmation of Democratic judicial nominees, are their efforts inherently suspect, and the justices they help confirm inherently tainted?

The brief ends with this ominous warning:

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.

Translation: Nice nine-person Supreme Court you have there. It would be a shame if anything happened to it.

It’s hard to describe to non-lawyers how truly extraordinary this filing is. You can spend a lifetime reading Supreme Court briefs, and while you’ll certainly find passionate argument, the number of threats against the Court — much less threats buttressed by transparently obvious allegations of judicial corruption — will be extraordinarily rare. But don’t tell that to five powerful members of the world’s greatest deliberative body. They’ll resort to character assassination to save a progressive city from the constitutional reckoning it so richly deserves.

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