Wednesday, August 21, 2019

The Truth Hurts: Why All the Angst About the Senators' Amicus Brief?

By Eric Segall

Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief  "an extraordinary threat from one branch of government to another." As the Washington Post notes, "the Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an 'enemy-of-the-court brief' — and the National Review’s David French called it “astonishing.” Even, liberal law professor Larry Tribe said the brief "was inappropriately — and stupidly— threatening,”

The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law. In other words, the case is almost certainly moot, as the amicus brief correctly suggests and Professor Tribe argues in his remarks about whether the Court should hear the case. But the hoopla isn't about federal jurisdiction but rather the Court as a political institution. The brief is remarkably snarky while also being astutely accurate. As a matter of strategy, the brief may not succeed. As a matter of truth-telling, academics should be praising its substance, if not its style. 

The Senators begin their argument by discussing the many amicus briefs filed in the case by gun rights, conservative, and libertarian organizations who openly seek a broad reading of the Second Amendment by the Court. There is nothing inaccurate or unseemly about that observation, but before the Senators provide the links and the evidence they throw in this line: "To stem the growing public belief that its decisions are 'motivated mainly by politics,' the Court should decline invitations like this to engage in 'projects.' Quinnipiac Poll ... (showing fifty-five percent of Americans believe the Court is 'motivated mainly by politics')."

The Senators repeat this and similar refrains throughout the brief. Towards the end of their argument, the Senators write that "fifty-nine percent [of the public] believe the Court is 'too influenced by politics'; and a majority now believes the 'Supreme Court should be restructured in order to reduce the influence of politics... To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or 'the requirements of the law,' Obergefell, (Roberts, C.J.,dissenting)) is to treat the 'intelligent man on the street,' Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.'"

Then, in the last section of the brief, the Senators direct this "threat:" "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."

There are two controversial aspects of this brief to many Court observers. The first is the direct accusations about the role of politics in the Justices' decision-making. The second is the "threat" of "restructuring" the Court if it decides to hear this specific case or perhaps continue down the road of political decision-making. The former simply makes accurate statements (with some data in the brief to back it up), while the latter is just silly posturing that few will take seriously and that has been done before by Republicans in other fora such as the Halls of Congress and on political stumps.

Readers of this blog are already familiar with my arguments concerning how politics writ large (not just partisan politics) dictate the Court's decisions in cases that raise political stakes. The Court is not bound by precedent, the Justices have life tenure and their constitutional decisions can't be reversed other than by constitutional amendment, the text and history they have to interpret is imprecise and contested, and they have to resolve many of our society's most difficult and controversial social, economic, and political issues. Absent a system of very strong deference to other governmental officials, a system we do not have, personal values and politics will be the decisive factor in most cases that we care a lot about. 

So, strategy considerations aside, why shouldn't people who appear before the Court as amici, whether they be lawyers, law professors, or politicians, say out loud to the Justices what most of us know to be true? The brief does support its claims by pointing to the Republican-dominated Court's recent devotion to issues the GOP cares a lot about, by pointing out that many of the same groups that are strongly urging the Court to hear a moot case are the same groups that spent millions of dollars urging the Senate to confirm Justice Kavanaugh, and that it is likely no coincidence that the first time the Court decided to hear a Second Amendment case since 2010 came only after Justice Kennedy, the Court's most important vote in politically contentious cases from 2006-2018, retired and was replaced by ... Justice Kavanaugh. The brief also points to examples, like the landmark case Citizens United v. FEC, where the Justices reached out to decide important and controversial issues that the parties did not raise themselves. In other words, the brief backs up its description of the Court as a political institution.

Is it terrible to threaten the Court if it refuses to decide the case in a way these five Senators prefer? Maybe, but that's not what happened. To pack or restructure this Court would require both Houses of Congress to be run by Democrats, and either a Democratic President or two-thirds majorities in both Houses to override the inevitable GOP Presidents's veto. And even if all of that occurred, it is extremely unlikely the Congress would ever follow through on such threats. 
The Justices are simply not going to lose sleep over the threats made in this brief by five Senators.

Moreover, much more serious threats have been made in the Halls of Congress itself by GOP Senators and Members of the House over busing, abortion, and school prayer. Why is this brief more an affront than those threats, actually considered by congressional committees? I don't think there is a good answer to that question.

In any event, I am pretty sure the point of the Senators' brief was not to persuade the Justices but to remind as many American people as possible that the Court is a political institution deciding political questions, and that any semblance of neutrality or objectivity by the Justices is illusory. In a world where the Chief Justice testified under oath that the job of a Justice is to call balls and strikes and to apply not make the rules, we need many more not fewer of these reminders. This brief should be applauded by Court watchers, not condemned.

Postscript: Not for nothing, but if the Court does decide to hear a case where there is virtually no chance the repealed law at issue will be reinstated, the Court will prove yet again that values and politics, not prior law, dictate outcomes. But that is the topic for another post.


Joe said...

See a recent Verdict column for an example of the angst. I hold to my comment there.

Joseph said...

I agree with you it's not bad to note the threat of politicizing the Court and that the condemnation of the brief is overheated. I don't think an impotent threat with transparent political motives in a brief that says nothing new regarding the legal issue is worthwhile. Many people are convinced that the Court is a political institution. People who are convinced of that do not need a reminder. I think the people need to hear more of the opposite view ( Fortunately, the Senators have damaged their case here.

Joe said...

"I don't think an impotent threat with transparent political motives in a brief that says nothing new regarding the legal issue is worthwhile."

But, it's not bad to note the threat. They apparently just did it wrong. I'm not sure if there is some way to do it that won't, somehow, cause people to be concerned. It's a sensitive topic and no matter how it is played, some will be upset.

Members of Congress regularly sign on to briefs and they tend not to amount to much. The attention this received suggests it has some bite. If it did not, the responses are a bit curious. The power of amicus briefs tend to be limited.

But, perhaps multiple members of the Senate Judiciary Committee and a presidential candidate with more of an audience than many senators matters at tad. The response suggests people think it is of some novelty. Members of Congress and others don't sign on to amicus briefs merely for personal interest. Yes, there is going to be some political motive. Sen. Whitehouse argues in his political role that various aspects of the judicial nomination process and so forth is troubling.

Politics is a factor in the courts but if that concerns people, the brief's warning should be appealing. As to the op-ed cited, Gorsuch as "fantastic" example might not be the best case from his appointment to many of his decisions. "Justice Neil Gorsuch racked up a more 'liberal' voting record than Justice Anthony Kennedy." Not really.

The fact that politics is not the ONLY aspect of judging is a strawman argument. Pointing out how politics alone isn't how courts operate is a child's game. But, if the senators damaged their case, people concerned about that should be sorry.

Joseph said...

The brief was signed on by some of the most demagogic Senators on the Democratic side. Describing them as members of the Senate Judiciary Committee and a presidential candidate, while true, suggests a certain gravitas and fair-mindedness they do not exhibit. That they arguably "did it wrong," is thus no surprise. They knew what they were doing and while I think the criticism of the brief is overheated, as I wrote, it shows how counter-productive their brief was, if the intent was to shine a light on the Court as a political body. Clearly their message was not appealing.

There are many people who do believe that politics is the only, or at least most important, aspect of judging. Knocking down the idea that politics is so important is a worthy cause.

Joe said...

The description suggests that they are not totally "impotent" though an amicus brief by five senators or anyone for that matter is going to be by nature of limited power. So, talking about "threats" as Prof. Segall says is somewhat silly.

Then, the reply basically provides a list of adjectives to suggest how he feels about the senators. I find the general framing unfair; ideological, e.g., is not the same as unfair demagoguery. The counsel of record, anyhow, is Sen. Whitehouse. I think the adjectives are particularly unfair as a summary of his work.

If people are worried about the idea of politics alone (or values split by politics) dominating, the brief's message holds. As to "not appealing," it sounds like the usual suspects (including flame throwers like Prof. Tribe from the liberal side) are upset. Meanwhile, many others are supportive or at least put on notice about an issue many people don't think about too much.

Karst said...

Judicial Watch has filed a complaint against senator Whitehouse alleging ethical violations. He apparently is not currently a registered lawyer in RI or DC, so should not have submitted the brief in the way it was done, which submission and content they say violates lawyer's ethical obligations.

Joseph said...

I disagree there is any tension with calling the threat impotent. I don't see need for scare quotes or avoiding the word - and neither did Prof Segall in describing the threat as impotent.

I used one adjective to describe the Senators, not a list. Whether the Senators are better described as ideologues or demagogues (I think the latter also fits), my point stands.

The amicus brief speaks to a choir. I don't expect either side to end their campaign to talk of the Court as a political body. But there will be times when they take it far enough to get pushback that rejects the idea, as Prof Segall says that "any semblance of neutrality or objectivity by the Justices is illusory."

The brief inspired far more pushback than it spurred anyone to think, "hey, yeah, the Court is political."

kotodama said...

The Judicial Watch complaint is frivolous and isn't worthy of being submitted as a 1st grade book report. Under 30 seconds of Google research shows that Whitehouse is admitted to the SC bar, that his filing comports with SC Rule 9.1, and that, owing to DC Rule 49(c)(3) [which JW conveniently fail to mention in their complaint, despite citing 49(a)], his acting in a representative capacity before the SC was proper in this instance.

Karst said...


So does that mean that those filing the Judicial Watch complaint are incompetent lawyers? Are they simply partisan hacks with law degrees?

Note: I am not a lawyer, just an interested citizen who regularly reads Dorf on Law and Verdict.

FYI: While the complaint may be frivolous, it is hardly helpful to engage in overblown exaggeration about 1st grade book reports. 1st grade teachers would be joyful if a real first grader could write grammatically correct sentences that had proper (or at least reasonable) grammar and punctuation.

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Greg said...

I think there's a fairly prevailing view that while everybody knows that the Supreme Court is a partisan institution, people ought not to say so out loud, and should instead attack particular decisions as partisan. The fear is that by recognizing the Supreme Court as political, you reduce the trust in lower courts, thus eliminating the entire concept of judicial independence or a fair trial.

In the sense that this brief breaks the norm that "we don't talk about the Supreme Court itself being political," this brief can reasonably be criticized. I think it is more jarring because despite the court being right-leaning for years, it has primarily been Republicans who publicly claim the court is a partisan institution every time a decision they don't like comes along, while Democrats maintain the non-partisan charade. This brief breaks that tradition in a particularly brazen way by doing it in a brief to the court itself.

I think it's clear that Prof. Segall's view would be to recognize the Supreme Court as partisan, but distinguish it from lower courts. I'm not sure if it's possible to create that subtle distinction in public perception.

I would also argue that if the threat weren't hollow, and in the context of current public calls for court-packing, the threat comes very close to "start making decisions we want, or we'll effectively replace you," which is a level of partisan attack on the court that arguably hasn't been seen since FDR and his attempts at court packing.

Joe said...

I engaged with Prof. Segall and he wanted to be clear that he thinks the courts are led by "values" and people support Trump etc. to put judges that promote said values. This to him is different from the courts being "partisan" though to me there is some overlap.

Jim said...

Lost in these comments -- although noted in Prof. Segall's post -- is that members of Congress routinely make more brazen threats to politicize the Supreme Court, in the form of "litmus tests" a candidate for the Court must satisfy in order to be nominated or confirmed. Prof. Segall further observes that these threats are made in the halls of Congress, and are directly connected to the specific gatekeeping authority Congress has been given to control membership on the Court. It's basically a "pay to play" scheme directed at specific issues that are likely to come before the Court. In this context, it's hard to get too worked up about whatever "threats" a few Senators might have made in an amicus brief.

Greg said...

I actually missed that Prof. Segall was the author of this post, and was responding based on his earlier writings, and not this post in particular. I probably would have phrased my earlier comment differently otherwise. Apologies about that.

I agree with Joe that there is some overlap, in that I would argue that the majority of the gulf between values and partisanship is whether you think you're doing the right thing vs. trying to win for winning's sake. I agree that most of the justices do believe that they are doing the right thing in their decisions, although I also believe that in many instances their view of "the right thing" is not only shaped by their values, but by what sides political institutions have taken on an issue.

Regardless, Prof. Segall, I think you would agree that the Supreme Court is "not a court" in that it doesn't rule based primarily on the law itself, and further that you would encourage this view to be the public perception of the court.

Joe said...

Jim's comment is fair enough as far as it goes but some probably think nominations are basically "their lane" -- the nomination process run by partisan elected officials -- while this is somewhat different. Clearly, people disagree how much.