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The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law.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.