Rhode Island’s junior senator, Sheldon Whitehouse, was a United States Attorney and state attorney general, so it’s not unreasonable to assume he’s got a modest functional knowledge of separation of powers. That means he’s not doing stuff because he doesn’t know better, but because deliberately designed to undermine our constitutional structure.
There was the golden oldie, the five-senator amicus brief to the Supreme Court in NYS Rifle & Pistol Ass’n v. City of New York, where they “warned” the Court at the conclusion to do as they demanded or else.
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.
Kinda rich coming from senators, but what else is new? For the past four years, Dems and progressives have been pounding hard on the politicization of the courts. It’s a lot like Trump’s anticipatory whining that the only way he could lose would be a rigged election, creating the mindset that no loss could be legitimate so that when he lost, it proved his claim.
Pundits like Linda Greenhouse have written nothing else but how the Court is now made up of political hacks doing the business of their tribal masters. Cries of how the Court would reverse decisions like Roe v. Wade in a month were rampant. It was political hysteria, and Whitehouse was deep in the middle of the hysteria of his own creation. Notably, the sky didn’t fall. Roe v. Wade wasn’t reversed. The Court went on with its business, for better or worse, with seemingly inexplicable divisions that defied the certainty of its detractors.
Naturally, now that the Dems hold the majority in the Senate, that means Senator Whitehouse needs to hold a hearing.
On Wednesday the Rhode Island Democrat will hold a Judiciary Committee hearing on “What’s Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary.” Subtlety is not Sheldon’s speciality. The hearing is intended to advance his Amicus Act that would force the Court to change its rules on amicus briefs, which the Justices invite to inform them on the law and facts on cases.
Before anyone exclaims, “but BIG MONEY!!!,” consider that the judicial branch is a separate branch from the legislative branch. Whether the issue concerns you, in general or particular, the Senate does not get to dictate to the judiciary, even though it’s been desperately trying for years.
Note the disrespect for the Court. The title of the hearing signals a foregone conclusion that the Justices are corrupted by money. This is a running theme of Mr. Whitehouse, whose preoccupations in the Senate have been undermining judicial independence and restricting the First Amendment rights of private citizens to influence their government.
The title of the hearing begs the question, presuming a terrible problem that needs Shell’s guidance to fix. It’s a pedestrian effort to taint the well before contemplating how to purify the water. But this is about amici, brief submitted in support of a position before the Court. There is already a rule requiring amici to inform the Court of any connection to a party.
The Supreme Court already has a rule—37.6—that governs amicus filings. It requires that amicus briefs “indicate whether counsel for a party” involved in the litigation “authored” or “made a monetary contribution” to the preparation of the brief. It further requires disclosure of “every person other than the amicus, its members or counsel, who made such a monetary contribution.”
But that’s not the Big Money problem that has Shelly’s panties in a twist.
Mr. Whitehouse wants to go further and require amicus filers to disclose all of their donors. This would hit groups on the left and right that aren’t required to disclose their donors but have scholars or legal experts who submit briefs. The Chamber of Commerce and NAACP would have to disclose all of their donors if they want to file briefs. This would deter some filers and thus less fully inform the Court, or it would open donors to these groups to political harassment—from the likes of Mr. Whitehouse and his political allies.
See what he’s trying to do here? He’s a bit of a conniver, that Whitehouse. On the one hand, he wants to coerce groups to stay out of Supreme Court cases, to not offer their arguments to the Court on matters that will have huge impacts on our lives through its decisions, upon pain of having to reveal the identities of donors. This has a double free speech whammy, that they won’t be able to proffer views to the Court in reaching its decision and that the confidentiality of donors would have to be compromised if they do.
In controversial cases, many advocacy, think tank and academic groups try to put their two cents into the mix. Whether this does much is hard to say and likely varies by case. But either way, it’s not as if groups reflecting one end of the political spectrum have any edge over any other. Whether they are financed by the Koch Brothers or Soros doesn’t make their arguments any stronger or persuasive. Indeed, the Court ended up deciding that the New York gun case was moot, just as the five senators demanded, and it surely wasn’t Sheldon Whitehouse’s persuasiveness that moved the Court.
The judiciary is the Least Dangerous Branch, having neither an army nor the power of the purse to back up its mandate. it’s only weapon is integrity, the trust of a nation that its rulings matter. Hearings like this are deliberately intended to undermine that trust and force the Courts to be the political animal senators like Whitehouse and pundits like Greenhouse want to paint it to be: cowering in fear that the Senate will “fix” it unless the Court does as it’s told.
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