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An Enemy of the Court Brief

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When liberals worry about losing a major Supreme Court case, they usually make appeals to the Court’s “legitimacy.” This is intended to attract Chief Justice John Roberts by suggesting that a conservative outcome would damage the institution’s reputation. The ritual is disingenuous but usually subtle.

Five Democratic Senators have had it with subtle. In a remarkable and threatening amicus brief, Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin and Kirsten Gillibrand all but tell the Justices that they’ll retaliate politically if the Court doesn’t do what they say in a Second Amendment case.

“The Supreme Court is not well,” they tell the Justices in what is really an enemy-of-the-Court brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” By “restructured,” they mean packed with new Justices by a Democratic President and Senate after they kill the filibuster.

The case involves a challenge to a New York City law that banned licensed gun owners from bringing handguns outside the city even if a gun is unloaded and locked in a container separate from its ammunition. The Court accepted the case in January. Fearing a Supreme Court defeat, New York softened the restrictions and in July asked the Court to dismiss the case as moot. The Justices are scheduled to consider that question Oct. 1. The plaintiffs say the regulations are still unconstitutional.

The five progressive Senators are furious the Justices may rule on the case though the most constitutionally dubious provisions have been repealed. Their amicus brief claims the Court would be deciding a “hypothetical” issue. Their real fear is that the Court will clarify its Second Amendment jurisprudence and broaden protections for gun ownership.

As the left-wing website ThinkProgress notes with approval, the brief amounts to a “declaration of war” against the conservative Justices that essentially describes the Supreme Court as “dominated by political hacks selected by the Federalist Society.”

The not-so-amicus brief attacks the Federalist Society by name five times, as if the network of bookish conservative-leaning students and lawyers is responsible for swinging elections. It posits darkly that “massive political spending and secrecy are rarely a salubrious combination.” This echoes Sen. Whitehouse’s previous effort to force anyone filing amicus briefs to disclose who funded them.

The Federalist Society doesn’t file amicus briefs. Its efforts are devoted to educational events and debates on public policy and law, and they aren’t secret. Liberals are welcome. If Mr. Whitehouse were interested in learning about opposing views, he might be too. Unlike at other campus groups, no one is shouted down at Federalist Society events.

The Senators also paint the conservative Justices as monolithic though the recent term saw significant diversity on the Court’s right. New Justice Brett Kavanaugh has formed an alliance of sorts with Chief Justice Roberts while Justice Neil Gorsuch sometimes joined the four liberals. There were more decisions with a majority of four liberals and one conservative—10—than there were with five conservatives. The four liberals formed a far more monolithic block.

The Senators darkly cite “a multimillion-dollar advertising campaign to shape this Court’s composition,” as if liberals don’t and won’t run advertisements when Democratic Presidents nominate judges. They say that 73 decisions with a conservative majority “concerned interests important to the big funders, corporate influencers and political base of the Republican Party” and add that it “if it turns out that these anonymous donor interests” benefit from those decisions then “it bodes very poorly for the Court.” This is rank demagoguery.


This is a dramatic escalation in the Supreme Court wars, and it doesn’t come from the right. Prominent liberals have gone in the blink of an eye from agonizing over the Court’s legitimacy in the hope of swaying John Roberts to openly assailing the Justices themselves as corrupt.

We trust the Justices understand that if they now drop the gun case, they will appear to be bending under this assault.

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Source: Senators File an Enemy-of-the-Court Brief – WSJ

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