Powerful interests working behind the scenes to secure favorable court rulings. Judges acting as partisan hacks beholden to the people who appoint them. These are the kind of accusations that Donald Trump regularly makes about the American judiciary.
Democrats have vigorously denounced those accusations and offered impassioned defenses of the rule of law.
Surprisingly, prominent Democrats now are abandoning their defense of the courts and are even echoing some of Trump’s most infamous claims.
In a friend of the court brief filed last week with the Supreme Court, five Democratic senators, including one presidential candidate, (Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York) made similar arguments about the bias and partisanship of the Court’s conservative justices.
Their brief put aside the usual legal niceties to offer blunt criticisms of those justices.
The senators intervened in a case concerning the constitutionality of a New York City ordinance that imposed “strict conditions on licenses and the means by which gun owners could transport their firearms from place to place.”
Fearing that the Supreme Court might make a sweeping, nationwide pro-gun ruling, in June, New York City repealed that ordinance. As a result, the city now contends that there is nothing left for Supreme Court to decide.
Legal Brief as Partisan Broadside
Although they offer little in the way of legal reasoning to support their conclusion, the senators’ brief rightly urges the Court to dismiss the case. Substituting for that kind of reasoning, the senators join the President in bringing the politics of denunciation to the Supreme Court’s doorstep.
In a Trump-like manner, their brief paints a picture of a dark conspiracy involving conservative groups operating in the shadows as well as the Federalist Society and the National Rifle Association. Together, the senators allege, these groups want to reap the rewards of a campaign mounted, following the retirement of Justice Anthony Kennedy, to put another pro-gun justice on the Court.
“Out in the real world,” the brief notes, “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. 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.’”
Accompanying their conspiratorial narrative, the senators’ strident broadside blames “bare partisan majorities” for wreaking havoc in “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.”
They highlight the longstanding partisanship of the Court’s conservative members. Their brief points out that “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, 12 those partisan interests prevailed.”
And, to drive the point home, the brief accuses the Court’s conservative judges of hypocrisy. “These 5-4 majorities disregarded ‘conservative’ judicial principles like judicial restraint, originalism, stare decisis, and even federalism.”
The Damage Done
The senators may be right to conclude that “The Supreme Court is not well.” But whether or not they prevail in convincing the Court to dismiss the New York City gun case, their accusations further damage the Court’s already shaky hold on the public’s respect.
Without that respect, courts lose one of their key tools for convincing a recalcitrant president or Congress to comply even when they take exception to judicial rulings.
The damage done by President Trump’s attacks on the courts and the kind of arguments made by the Democratic senators is now being felt across America. One recent poll reports that, by a 59%-35% margin, the public now believes that the “U.S. Supreme Court is too influenced by politics.”
Recognizing this erosion of respect for the Supreme Court, Mayor Pete Buttigieg, a Democratic presidential candidate, says it is time to “depoliticize this body.”
His proposal, reminiscent of President Franklin Delano Roosevelt’s ill-fated court packing plan, calls for expanding the number of justices from nine to 15, with five affiliated with Democrats, five affiliated with Republicans, and five apolitical justices chosen by the first 10.
The presentation of such a radical plan suggests that the Boston Bar Association, one of the country’ most prestigious lawyers’ groups, got it right this month when it issued a report warning that “the tenor and frequency of malign attacks on judges—and, indeed the judiciary as an institution, as well as the process for judicial selection and appointment—have risen to a point that the climate around judicial rulings and other decisions may be undermining public faith in the judiciary.” The report called on political leaders to “recognize the difference between “healthy criticism of the judiciary” and “potentially dangerous attacks on judicial independence.”
At a time when many of the taken-for-granted norms and institutions of American life are being regularly undermined, this injunction applies both to President Trump and his Democratic critics.