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Facing Reality


Sheldon Whitehouse and four other senators have submitted an amicus brief accurately describing the current Supreme Court majority:

Whitehouse is one of five senators (the others are Sens. Mazie Hirono (D-HI), Richard Blumenthal (D-CT), Dick Durbin (D-IL), and Kirsten Gillibrand (D-NY)) who filed a brief earlier this week in a Second Amendment case the Supreme Court’s Republican majority could use to dismantle what remains of America’s gun regulations. Whitehouse is also the lead (and only) counsel on the brief.

The brief itself is less a legal document than a declaration of war. Though parts of it argue that the high court lacks jurisdiction over this case, New York State Rifle & Pistol Association v. City of New York, the thrust of the brief is that the Supreme Court is dominated by political hacks selected by the Federalist Society, and promoted by the National Rifle Association — and that if those hacks don’t watch out, the American people are going to rebel against them.

And they’re just saying what the public at large increasingly understands:

But, as the polling cited by Whitehouse demonstrates, the myth of the politically agnostic court is collapsing fast. Here’s an telling example: a 2014 review of Obamacare cases by the conservative Washington Times found that “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.” In cases involving America’s most politically charged law, in other words, the best predictor of a judge’s vote isn’t some abstract question about judicial philosophy. It’s whether the judge is a Democrat or a Republican.

Simply put, there’s a reason why Senate Republicans held a seat on the Supreme Court open for more than a year until a Republican president could fill it. Partisan control matters a great deal. It’s the difference between a constitutional ban on gerrymandering and the decision the Republican majority handed down last June, which held that partisan gerrymandering cannot be questioned by federal judges. It’s the difference between a robust Voting Rights Act and skeletal voting-rightsprotections picked clean by the Supreme Court.


Perhaps. But you know what was also outside of legal norms? A sitting judge of the United States Court of Appeals for the District of Columbia Circuit angrily confronting senators who credibly accused him of trying to rape Christine Blasey Ford — and then threatening revenge against those Senate Democrats. The Whitehouse brief is best read as several prominent Democrats’ response to “what goes around comes around.”

The decision to lock Supreme Court nominee Merrick Garland out of the high court, and the decisions to muscle Judges Neil Gorsuch and Brett Kavanaugh onto that court, are the kind of tactics that exposes the molten core of partisan politics at the heart of the Supreme Court’s high-minded rhetoric.

Neither Gorsuch nor Kavanuagh, moreover, possesses even the second-hand democratic legitimacy that normally attaches to presidential appointees. Both men were nominated by a president who lost the popular vote, and were confirmed by a bloc of senators who represent less than half of the country.

The party-line confirmations of Gorsuch and especially Kavanaugh are a critical inflection point for the institution of the Supreme Court. Obviously, if the myths about the Supreme Court being a nonpolitical institution were true Trump wouldn’t have begun his term with a vacancy to fill. And it’s just ridiculous to pretend that the guy who got onto the Supreme Court after giving a series of unhinged partisan rants is anything but a partisan hack of no intellectual distinction, no matter how many elite legal types chose to lie about it at the time.

A very partisan Republican majority is entrenched on the Supreme Court, and barring a near-miraculous sequence of events it will get worse before it gets better. We need to make this understood before deciding what to do about it, and Whitehouse and his colleagues recognizing reality is an important step.

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