As a former staffer for the Senate Judiciary Committee for Sen. Bob Smith (R-NH), I am offended by the actions of some Democrats in the Senate to threaten the independence of the federal judiciary. I have never been a fan of legislators filing amicus curiae, friend of the court, briefs, because Congress writes the laws. I am even less of a fan of Senators weighing in on cases that don’t involve any federal statute.
Supreme Court Justice Samuel Alito gave a keynote speech to the Federalist Society on November 12, 2020 where he addressed an interesting case of Senators filing a brief in a case with no federal statute in question. Justice Alito discussed a Second Amendment case before the court that involved a New York City ordinance that was challenged by gun owners. The city changed the ordinance after the Supreme Court accepted review of the case in an attempt to make it moot and ripe for dismissal. Sens. Sheldon Whitehouse (D-RI), Mazie Hirono (D-HI), Richard Durbin (D-IL) and Kirsten Gillibrand (D-NY) authored an amicus curiae brief supporting dismissal of the case. The Senators had no business weighing in on the interpretation of a city ordinance, let alone the mootness argument, but that did not stop them.
These progressive Senators used the brief to accuse the court of being motivated by politics, not justice. The Senators accused the court of being “not well” and issued the threat “perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” The irony should not be lost that these politicians made a political, not legal, argument before the court accusing the Supreme Court of being motivated by politics. The brief is a brazen violation of the Separation of Powers doctrine central to our constitutional republic.
Justice Alito, without naming the Senators, argued, “this little episode, I'm afraid, may provide a foretaste of what the Supreme Court will face in the future.” Alito believes that the brief itself was “an affront to the Constitution and the rule of law.” It read more like a co-authored Op Ed in the Huff Post than an actual legal brief. In the end, the ‘brief’ was an attempt to bully the Supreme Court into dismissing the case.
Sen. Whitehouse’s activism to create a reason to attack the Supreme Court includes conspiratorial accusations of ‘dark money’ controlling the justices. He gave a speech on the floor of the U.S. Senate accusing federal judges of aggravating climate change. The senator claimed that the “big polluters” have captured the federal courts through funding conservative nonprofit organizations. In the confirmation hearings of Judge Amy Coney Barrett earlier this year, Sen. Whitehouse was equally brazen and unhinged. He asked the nominee no questions, instead using his time to rant about “dark money” influencing the courts. Sen. Ted Cruz (R-TX) pointed out Sen. Whitehouse’s hypocrisy in criticizing judges appointed by the GOP, while Whitehouse himself fought vigorously to appoint Democratic former State Treasurer John J. “Jack” McConnel, a donor to Sen. Whitehouse, to the federal bench.
Ironically, but not surprisingly, Sen. Whitehouse has his own “dark money” ties, according to the Wall Street Journal editorial board. They wrote about his dark money ties to the secretive for-profit “Arabella Advisors.” They described the groups as a “for-profit entity (that) oversees nonprofits including the Sixteen Thirty Fund and the New Venture Fund, which together reported nearly a billion dollars in revenue in 2017 and 2018.” This is an activist liberal group that wants to load up the Supreme Court with left wing judicial activists. The Journal concluded, “Mr. Whitehouse’s silence about his own ties to dark-money networks shows his goal isn’t to clean up politics. He wants to silence those who disagree with him.” This speaks to the idea on the left that dark money rules only apply to Republicans.
Arabella Advisors, the top of the funding food chain for this left-wing campaign, brings in revenue far exceeding Whitehouse’s bogeymen organizations on the right. While Sen. Whitehouse demonizes the Federalist Society and the Judicial Crisis Network as dark money networks, his own dark money group is structured in a complex way with a for-profit at the top and “at the base are hundreds of projects, fiscally sponsored by the four nonprofits, that make up the supposedly grass-roots groups the public sees.” The left loves to apply rules on Republicans that they refuse to apply to themselves.
Sen. Whitehouse isn’t on a good-faith mission to expose corruption. The left-wing Senator wants to delegitimize the Supreme Court and mislead the public into believing that the High Court is in need of restructuring. The end goal is to bully the court into doing what the progressives want either through a pressure campaign or adding a bunch of progressive activist judges to the Court to neutralize the Republican appointed judges. Expect the next two years to be a ramped-up assault on the independence of the Court by Sen. Whitehouse and his dark money allies.