Sheldon Whitehouse, a Democrat, represents Rhode Island in the U.S. Senate.
Politics is a team sport. We battle, and our courts are supposed to referee our disputes.
But what if one team spent years and millions of dollars to capture the referees, so the refs could declare that team the winner whenever they fell short on the field? If you were on the other team, you’d cry foul. You’d ask: “Hey, when did the law become a team sport, too?’’
A few weeks ago, several Senate colleagues and I did just that when we filed a friend-of-the-court brief in a case before the Supreme Court in which the National Rifle Association had urged the court to continue its “project” (the NRA’s term) to undermine gun regulations.
We cried foul. That triggered a remarkable response.
Conservative media lit up in unison. Fox News and the Wall Street Journal editorial page, for instance, attacked us for advocating “court packing,” something we did not advocate. The Journal used language so similar to a separate National Review op-ed that it issued an unusual editor’s note denying plagiarism. Then, all 53 Republicans in the Senate cranked out a letter to the court’s clerk decrying our brief. What hoopla.
So, what did we actually say?
We said this: From 2005 through the fall term of 2018, the Roberts court issued 73 5-to-4 partisan decisions benefiting big Republican donor interests: allowing corporations to spend unlimited money in elections; hobbling pollution regulations; enabling attacks on minority voting rights; curtailing labor’s right to organize; denying workers the ability to challenge employers in court; and, of course, expanding the NRA’s gun rights “project.” It’s a pattern.
Of course, in other decisions during that period, such as the 2015 same-sex marriage ruling, a Republican appointed justice joined the liberals. But in its run of 73 partisan 5-to-4 cases, the Republican majority routinely broke traditionally conservative legal principles, such as respect for precedent or “originalist” reading of the Constitution. They even went on remarkable fact-finding expeditions, violating traditions of appellate adjudication.
In their letter, our Republican colleagues invoked Alexander Hamilton’s vision of the “complete independence of the courts.” We’re glad they did, because our purpose in calling attention to this pattern is to help restore the judicial independence Hamilton envisioned.
The big-donor takeover of the federal courts begins, as reported by The Post, with a sprawling network of organizations funded by at least a quarter-billion dollars of largely anonymous money, and spearheaded by the Federalist Society’s Leonard Leo. We saw this network’s hand in the confirmations of Justices Neil M. Gorsuch and Brett M. Kavanaugh. One unnamed donor gave $17 million to the Leo-affiliated Judicial Crisis Network to block the nomination of Judge Merrick Garland and to support Gorsuch; then a donor — perhaps the same one — gave another $17 million to prop up Kavanaugh. The NRA joined in the effort, too, spending $1 million on an ad campaign supporting the Kavanaugh confirmation to “break the tie” (again, the NRA’s words) in gun cases.
With its judges in place, the network lobbies the court with anonymously funded amicus briefs, signaling how the judges should vote. In one case, Janus v. AFSCME, one anonymously funded group backed 13 different amicus briefs fighting public-sector unions’ right to organize. The decision came as expected, 5 to 4, throwing out 40 years of settled labor law.
Republicans and their big donors now see the court as part of their team. They can achieve political gains there that they cannot win in Congress. The supposedly apolitical nature of the court partly protects these political gains from critique. And after 73 partisan victories, they’ve had a hell of a run. That explains why our brief provoked such an outcry from their side.
But Americans can smell a rat. The pattern is too distinct to ignore. We warned the court of polls showing that the public’s faith in the court’s independence is eroding. Americans becoming wise to their game is surely concerning to the anonymous funders. Corporate, polluter and partisan donor interests want the eyes of the nation turned elsewhere, while their “projects” play out in captured courts.
So the right-wing media eruption tried to deflect our plainly stated concerns by suggesting we want to change the number of justices on the court. That’s not what we’ve argued. My own calls for judicial reform have been for transparency around the dark money behind judicial nominations and amicus briefs; for improved ethics reporting and a court code of ethics; and for justices to follow principles they espouse at confirmation hearings such as respect for precedent, judicial modesty, deference to duly passed laws of Congress, letting fact-finders find the facts, and calling balls and strikes apolitically. None of that seems unreasonable.
The right-wing eruption offered no defense of why a multimillion-dollar secret influence apparatus should be involved in selecting justices and campaigning for their confirmation and filing anonymous amicus briefs. There was no defense of the court systematically overturning precedents or inviting challenges to well-established doctrines or finding specious facts or discarding appellate norms; and there was no defense of the run of 73 partisan decisions.
Instead, we saw precisely the howl of coordinated, multiple-mouthpiece misdirection you would expect to hear from big donors whose scheme to capture the Supreme Court for one team was suddenly exposed and is now at risk.