Senator Whitehouse Threatens the Supreme Court but He May be the One to Get in Trouble

For years liberals have used the courts to get what they could not get from voters, the President or Congress.  President Trump and Senators like Mitch McConnell, Chuck Grassley and Lindsey Graham are doing a great job of nominating and confirming judges that respect the rule of law and not liberals' political wishes.  So now liberal politicians are taking to threatening the courts to get what they want.  As the Wall Street Journal opined last week:

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 threating amicus brief, Sheldon Whitehouse  [and four other Senators] all but tell the Justices that they'll retaliate politically if the Court doesn’t do what they say in a Second Amendment case. . . .

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.

As counsel of record, here is part of what Senator Whitehouse threatened:

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.”

The restructuring mentioned is referencing Democrat plans at court packing.  (RNLA has been tracking this in its 2020 Democratic candidate project.)  As Mike Davis tweeted:


Judicial Watch went further and filed a formal complaint saying:

Judicial Watch accused the Rhode Islander of practicing law without proper authorization when he filed a friend-of-the-court brief with the nation’s highest court in a gun case from New York.

As an inactive member of his state's bar, Whitehouse cannot practice in the state, but Judicial Watch said he did so in filing the document on behalf of Democratic Sens. Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Dick Durbin of Illinois and Kirsten Gillibrand of New York. The conservative group also notes Whitehouse is not a member of the District of Columbia bar. But the Rhode Island Democrat is a member of the Supreme Court bar, his office said.

“The filing of a brief — let alone all that is required to file a brief — on behalf of clients is indisputably the practice of law,” Judicial Watch claimed.

The conservative group further lambasted the filing from Whitehouse as “unbecoming of the legal profession as it is nothing more than an attack on the federal judiciary and an open threat to the U.S. Supreme Court” and accused the Democratic senator of violating the Rhode Island Rules of Professional Conduct.

Regardless of the complaint before the bar, the filing of the Senators led by Whitehouse is unbecoming of a lawyer and dangerous to our system of government.  As Tom Jipping and Hans von Spakovsky wrote:

They define decisions they don’t like as proof that the judiciary has been “politicized” because that sounds better than saying they want judges who will deliver the political goods no matter what the law says or what the actual facts are in a case. . . .

Suppose that we, as lawyers, filed a friend of the court brief in state court where judges are elected, threatening to work against them in their next election unless they ruled our way. We would justifiably be subject to severe sanctions. Yet the five Democratic senators are hiding behind the authority of their elected positions to do the very same thing.

Judicial independence, especially from political manipulation, remains “peculiarly essential” to the system that provides the liberty we all enjoy. It remains, as the late Chief Justice William Rehnquist said, one of the “crown jewels” of our system of government.

All Americans, as well as judges on any court, should reject such attempts to manipulate the judicial system for political gain.