Supreme Court

Conservative Justices Are Political Hacks, Five Senators Argue While Urging SCOTUS to Drop a Second Amendment Case

The five Democrats warn that the Court may have to be "restructured" if it keeps making decisions they don't like.

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This week, five Democratic senators filed a brief in New York State Rifle & Pistol Association v. City of New York, a challenge to that city's absurdly tight restrictions on the transportation of legally owned firearms. In part, Sens. Sheldon Whitehouse (D–R.I.), Mazie Hirono (D–Hawaii), Richard Blumenthal (D–Conn.), Richard Durbin (D–Ill.), and Kirsten Gillibrand (D–N.Y.) argue that the case, which could give the Supreme Court an opportunity to clarify the contours of the Second Amendment after nearly a decade of silence on the subject, has been rendered moot by New York City's recent revision of its regulations. But most of the 25-page brief is devoted to the argument that the Supreme Court has been corrupted by a shadowy right-wing financial network bent on changing policy through litigation. The brief concludes with a warning that if the Court continues to do the bidding of these donors—i.e., if it continues to make decisions that Whitehouse et al. do not like—it may have to be "restructured in order to reduce the influence of politics."

The senators imply that the justices should not trust the amicus briefs urging them to consider the constitutionality of New York's policy because the organizations behind them have financial motives for taking that position. "At least 8 amici purport to represent gun organizations which, like petitioner, are affiliates of the NRA," they say. "At least 6 amici report receiving funding from foundations and other often anonymously funded sources connected to [Federalist Society Executive Vice President] Leonard Leo's network that regularly fund ideological litigants and amici before this Court." While "at least 32 amici filing briefs in support of petitioners do not disclose their organizational donors," they say, "were there such transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support rallying to a cause."

These ad pecuniam arguments are, of course, logically empty, since they have nothing to do with the issues before the Court: whether the case is moot and, if not, whether New York's restrictions are constitutional. It is hardly surprising that the National Rifle Association or its affiliates would want the Court to hear a Second Amendment case. Nor is it surprising that other individuals and organizations that support the constitutional right to arms would agree, or that they might attract financial support from like-minded people. None of that has any bearing on the legal issues.

The idea that there is something sinister about trying to influence the law through strategic litigation, aided by financial support from people who support the cause, is hard to take seriously. Would these senators condemn the American Civil Liberties Union, the NAACP, or their supporters on the same grounds? Would they say the money received by progressive organizations makes their legal arguments invalid?

The senators' broader point, however, is that legal arguments do not matter to the Court's conservative members, who rule the way they do not because they are applying the law in good faith but because they are beholden to the moneyed interests that helped install them:

From October Term 2005 through October Term 2017 this Court issued 78 5-4 (or 5-3) opinions in which justices appointed by Republican presidents provided all five votes in the majority. In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party. And in each of these 73 cases, those partisan interests prevailed….

With bare partisan majorities, the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed.

The pattern of outcomes is striking; and so is the frequency with which these 5-4 majorities disregarded "conservative" judicial principles like judicial restraint, originalism, stare decisis, and even federalism.

The senators thus portray the Court's conservative wing as a bunch of political hacks who do not even follow their own avowed principles. In the senators' view, the differences between the majority and the minority in these cases cannot be explained by honest disagreement. The justices who reached conclusions the senators favored were conscientiously applying the law, while the justices who reached conclusions that the senators opposed were simply following the marching orders of the Republican Party.

Regarding this particular case, the senators say, the NRA worked hard to win the confirmation of Brett Kavanaugh, who had taken a strong position in favor of the Second Amendment as an appeals court judge. The NRA "promoted the confirmation (and perhaps selection) of nominees to this Court who, it believed, would 'break the tie' in Second Amendment cases," Whitehouse et al. say. "During last year's confirmation proceedings, the NRA spent $1.2 million on television advertisements declaring exactly that."

Furthermore, they say, the Federalist Society (which also has a budget!) published an article suggesting that the replacement of retired Justice Anthony Kennedy with Kavanaugh could have a crucial impact on the Court's willingness to hear Second Amendment cases. Full disclosure: I said the same thing, and I work for one of those nonprofit organizations that Whitehouse et al. deem suspect when they take positions that Whitehouse et al. do not like.

The senators (like Linda Greenhouse) seem to be hoping that Chief Justice John Roberts will join the Court's liberal wing in voting to drop this Second Amendment case because he worries about the Court's reputation as an apolitical body that acts as a referee, "calling balls and strikes" rather than siding with one team or another. "In the wake of a multimillion-dollar advertising campaign to shape this Court's composition" and "an industrial-strength influence campaign aimed at this Court," they warn, hearing this case would only confirm that the justices are "motivated mainly by politics," a sentiment endorsed by "fifty-five percent of Americans" in a recent Quinnipiac University poll. "Obviously," they say, "the Court is not standing back in dispassionate form and 'calling balls and strikes' when it is laying the groundwork for future policy changes or soliciting opportunities to change policy [e.g., by arguing that the Court should address a certain issue in an appropriate case]. That should be unacceptable in the context of separated powers."

Yet in the process of making this argument, the senators are insulting Roberts, who joined the majority in all those decisions the senators deem clearly political, by attacking his integrity and intellectual honesty. And by closing with a threat that the Court may have to be "restructured" if it continues to issue decisions that offend Democrats—in the name of insulating the Court from politics and protecting the separation of powers, no less—the senators are choosing a tack that is apt to irritate not only Roberts but members of the Court's liberal wing as well.

"It's hard to describe to non-lawyers how truly extraordinary this filing is," writes National Review's David French. "You can spend a lifetime reading Supreme Court briefs, and while you'll certainly find passionate argument…threats against the Court—much less threats buttressed by transparently obvious allegations of judicial corruption—will be extraordinarily rare."

Whitehouse et al.'s ad hominem attacks on Second Amendment advocates and on justices inclined to agree with them reflect a bipartisan tendency to impugn people's motives instead of addressing their arguments. It's a strategy that has no place in rational political debate, let alone constitutional law.

NEXT: Voters and Business Owners Know the Trade War Should Be Abandoned. Does Trump?

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  1. My god could it be the democrats are more fascist and authoritarian than the rethuglicans? to be honest the Nazgul going the way of the dodo would be a good thing if it didn’t ultimately mean the fucking end of the Constitution as we know it. I’m still not totally against it.

    1. What the fuck is “Nazgul”?

      1. According to a Lord of the Rings fan site, the “Nazgûl (also known as Ringwraiths, The Nine, The Fallen Kings, Black Riders, or Úlairi in Quenya) were the dreaded ring-servants of the Dark Lord Sauron in Middle-earth throughout the Second and Third ages, who in the later years of the Third Age dwelt in Minas Morgul and Dol Guldur.”

        The Nine.

        1. *cough*nerd*cough*

    2. It would be the start of massive nominations to the court depending on which party is in power. We can only hope it gets the same backlash as when it was proposed by FDR

  2. >>reflect a bipartisan tendency to impugn people’s motives instead of addressing their arguments

    five moron (D)s does not equal bipartisan

    1. No, but that’s just one brief. It’s silly to pretend that conservatives don’t accuse the liberal justices of bad faith as well.

      1. Sullum is equating 20 years of everyone yelling @each other on the internets to these five morons so he feels better about the five morons.

        1. Or because the “the five morons” have more in common with “everyone yelling @each other on the internet” then to the “the Nazgul” (to use everyone else’s vernacular).

      2. The whole point of the article that this brief is unique.

        1. Something can be a uniquely bad example of a broader phenomenon.

          1. >>>broader phenomenon

            yeah all 535 are pretty much morons.

            1. That’s 546, isn’t it (President, congressmen, senators and the Supreme Court)?

              1. sure … relatively endless list

              2. Probably closer to 20 million if you include state and local governments.

      3. “No, but that’s just one brief. It’s silly to pretend that conservatives don’t accuse the liberal justices of bad faith as well.”

        Accusation of bad faith =/= attempts at court packing.

        1. Judges, like journalists, should only be held in the highest and most altruistic regards. Pretending they are human is vile and degrading.

        2. Nobody suggested it did. Notice the line we are discussing: “reflect a bipartisan tendency to impugn people’s motives instead of addressing their arguments.” Nothing about court packing in there.

          1. Which every American, including Congress-critters, left, right, and center has a right to impugn people’s motives rather than address their motives. It’s the court packing that would be what makes this impugning exceptionally bad.

            1. “Which every American, including Congress-critters, left, right, and center has a right to impugn people’s motives rather than address their motives”

              Which nobody denies.

              1. Which nobody denies.

                I didn’t say you denied it. It’s pretty clear that you wanted ‘us’ to notice the line that isn’t really a problem, illegal, or really morally questionable above the line which is a real moral and legal quandary.

                You don’t have to deny anything to be underhanded, dishonest, immoral, and factually wrong.

                1. “It’s pretty clear that you wanted ‘us’ to notice the line that isn’t really a problem, illegal, or really morally questionable above the line which is a real moral and legal quandary.”

                  Hey dumbshit, I’m not the one who picked out the line we are discussing.

            2. Mainly the “restructuring” euphemism for “court packing”.

          2. Umm…the line, or really, the word, we are discussing, is “restructured.” If you’re not smart enough to know what that means, we can’t help you.

            1. No, the line we are discussing is: “reflect a bipartisan tendency to impugn people’s motives instead of addressing their arguments”

              You can tell because that’s the line the first person in this thread chose to quote.

      4. Name one time that a conservative accused the liberal justices of bad faith in a brief to the court along with a threat to restructure the court if they didn’t decide the case the way the conservative wanted?

        1. Why would I do that? “Notice the line we are discussing: “reflect a bipartisan tendency to impugn people’s motives instead of addressing their arguments.”” Nobody has suggested that conservatives have done the equivalent. “Something can be a uniquely bad example of a broader phenomenon.”

  3. More of Trump’s appalling and intolerable undermining of our most sacred institutions, our democracy and our very nation.

    1. BTW, what’s the over/under on when the Dems make Trump’s plans to rig the election the center point of their campaign? You know it’s always projection with these folks and the minute they start talking about how Trump’s planning to rig the election you’ll know they’ve finalized their plans for rigging the election.

      1. At least the Democrats want to help our economy by keeping election rigging jobs in this country instead of outsourcing them to Russia!

        1. Don’t be silly. The Dems are outsourcing the election rigging to illegal immigrants.

          1. Considering Biden’s ties to China, yet another job sent to the Chinese.

        2. Oddly only the democrats paid russia by proxy through Steele last election.

          1. We’re now at the point where, despite that being verifiable fact, and a matter of record, there are millions of people who absolutely refuse to believe it because #ORANGEMANBAD and there’s apparently no way someone can believe that without being (a) “Trumpista/nazi/alt-right/white nationalist/white supremacist” etc.

          2. Way to ruin the joke.

      2. It’s already underway. See the Stact Abrams or Alyssa Milano PACs.

      3. By then the report on the bogus collusion investigation will be out. They won’t want to talk about the abuse of power than makes Nixon look like a piker.

    2. That’s Trumps America for ya (sigh)

      1. Headlines: “FBI’s Corruption, Russia Ties Revealed in New Documents!”

        Media commentariat: “That’s awful. Trump should totally resign, right?”

  4. “Sens. Sheldon Whitehouse (D–R.I.), Mazie Hirono (D–Hawaii), Richard Blumenthal (D–Conn.), Richard Durbin (D–Ill.), and Kirsten Gillibrand (D–N.Y.)”

    I think the SCOTUS should take into consideration the financial backing of these individuals before even reading their brief, since, more than likely, they are heavily supported by organizations intent on dismantling the second amendment, by any means necessary. Therefore, they are as “bought and paid for” as anyone else out there.

    1. Whitehouse is clever enough to launder his campaign contributions through lobbyist firms and clearinghouses.

      “Law firm LLC” isn’t a very transparent disclosure.

      Well, unless it is: “Motley Rice LLC is one of the largest American plaintiffs’ litigation firms. “

      1. Chiefs are elected, not appointed.

        And I went to an elementary school named after a famous mixed-blood chief of the Cherkokees, so they were allowing mixed-bloods to serve as Chief even in the 1850s.

        1. Elizabeth Warren for Chief!

    2. You give them too much credit by saying they are bought off, they probably are actually stupid enough to believe what they are saying.

      1. They can’t be both?

  5. These Senators are decrying that the conservative justices are making political motivated decisions while demanding that the Court drop the case for purely political considerations. It seems rather apparent that the NYC law is out of constitutional bounds and the senators fear the precedent that might be set for future gun control legislation.

    1. These Senators are decrying that the conservative justices are making political motivated decisions while demanding that the Court drop the case for purely political considerations.

      *mic drop*

    2. What they fear is not striking down the law, that’s a given, what they fear is a decision clearly saying their is a right to bear arms, not just keep them. What would be even worse would be a clear statement by the court that strict scrutiny is the standard for analyzing 2nd amendment cases.

      To sum it up, they don’t want anything written by Gorsuch or Thomas or Alito. Anything written by Kavenaugh or Roberts may forstall court restructuring for an election cycle or two.

  6. “From October Term 2005 through October Term 2017 this Court issued 78 5-4 (or 5-3) opinions in which justices appointed by Republican presidents provided all five votes in the majority.”

    Clearly the solution is for members of the liberal block to put aside their partisan interests more frequently and vote with their conservative colleagues.

    Oh wait, then the decision would be 6-3 and not factor in to this analysis. It seems silly to pretend that there’s only one set of cases where the judges are acting as partisans, and that set is defined by the vote totals rather than anything intrinsic to the case.

    1. Not to mention that 5-4 decisions are rare:

      According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases.

      Source – Washington Post

      1. And this last term, the liberal justices were on the winning side in most of the 5-4 decisions.

      2. I am surprised by the number of unanimous decisions.

        I would think that if the answer were obvious, then it wouldn’t have made it to SCOTUS.

        I would expect the SCOTUS decisions to be split, because questions only make it to SCOTUS when the answer isn’t obvious to the lower courts.

        1. “questions only make it to SCOTUS when the answer isn’t obvious to the lower courts.”

          And when both the appellant and SCOTUS think there is a chance of overturning the lower courts.

        2. A few of the lower courts are just awful on the Bill of Rights (not that SCOTUS is perfect)

    2. A similar analysis for the 12 years before would be interesting. I bet it shows just the opposite.

      1. I doubt it. It was still a conservative majority prior to 2005. 2005 is just when it went from being the Rehnquist Court to the Roberts Court.

  7. Who is the attorney who signed his name to brief? He or she should be sanctioned.

    1. If McConnell actually sanctioned these senators (which he should for threatening the courts) Sollum or Boehm would write a story about how McConnell is killing free speech.

      1. Especially if Trump tweeted about it.

        1. On that same note did anyone notice that Israel rescinded it’s ban on Tlab and now she is refusing to visit her Grandma because she doesn’t want to be seen as supporting the evil Israeli Government (similar to what she said)?

          1. Poor Grandma. Such a grandaughter, oy vey!

  8. By the way, remember when the media went apeshit when Donald Trump suggested that judges decided cases for political reasons? Remember how he was accused of undermining faith in the judicial system? Remember how Chief Justice Roberts went out of his way to reject the suggestion of politics playing a role in judicial decision making? I am sure that these five turkeys will be met with similar outrage.

    I keep hearing about how Trump is breaking norms and lowering the dignity of his office. No one seems to be noticing how quickly others are beginning to copy him in this regard

    1. >>>Chief Justice Roberts

      word. still waiting for his op-ed

      1. Is Chief Justice Roberts more than 1/1024th Cherokee?

        1. I think tribes only appoint someone to Chief if they are 100%.

          1. Chiefs are elected, not appointed.

        2. which tribe was most Establishment? he’d be on the ceremonial totem pole

          1. The Heckawi Tribe

            1. F+ for effort

      2. To be fair to Roberts, this is an amicus brief in a case pending before the Supreme Court. Roberts can’t really respond to this one publicly right now.

        1. >>>To be fair to Roberts

          why? “it’s a tax” cemented his legacy as idiot, and he thinks the People care who he votes for

          1. Because his failings don’t justify mine. Or yours.

            1. mom? i thought you had tennis this afternoon.

              1. No, but Chief Justice PenalTax will be taking little Brett to his lessons

    2. This article, for instance, is rather unemotionally charged about the Senator’s outrageous letter comparatively to the appalled shock when Trump is considered 5o do ad something impolitic.

    3. Those others were doing it well before Trump became president.

    4. Hmm, “beginning to copy him” implies they just started lowering the dignity of their offices recently. Trump is the result, not the cause in my opinion.

      1. Trump is basically a blacklight…

    5. No they wont because the media agrees

  9. Another op-ed written for an audience of one: Roberts.

    The only question is whether his desire to upset nobody and nothing will outweigh his disgust at such palpable insults. I’m still 50:50 on which way he votes. I think there’s a good chance he will only vote for the 2nd Amendment if the conservatives hold off on strict scrutiny, such as holding strict scrutiny only in narrow cases, and intermediate for accessories, permits, outright bans, etc. — for instance, denying the typical assault weapon ban, but allowing bans for bump stocks and 30 round magazines.

    Roberts is a craven insult to judges everywhere.

  10. The brief concludes with a warning that if the Court continues to do the bidding of these donors—i.e., if it continues to make decisions that Whitehouse et al. do not like—it may have to be “restructured in order to reduce the influence of politics.”

    “Nice little Court you got there. Be a shame if something happened to it.”

    1. LOL. Yep.

  11. “Wow, it’s going to be tough to argue that a law making it almost impossible for law-abiding citizens to own a gun doesn’t violate the 2nd Amendment.”

    “Actually, it’ll be super easy. Barely an inconvenience.”

    “How so?”

    “We’ll just issue an enemy-of-the-court brief, and threaten to ‘restructure’ the court unless they vote the way we want them to, because disagreeing with us means they’re corrupt and controlled but doing what *we* say means they’re independent and principled.”

    “Oooh, circumventing the Constitution is *tight*!”

  12. In all my years as an adult and voter, I have never seen either party become so unhinged. This letter is far beyond a concern, it is a threat. These Senators are clearly telling the court to vote as they want or face some insane attempt to pack the court. There is no conservative majority because all the justices have crossed over and voted with the liberal justices. The only justices who are entrenched in their political ideology are those on the left The only reason these Senators and the left in general is freaking out is they all know the NYC law is way over the line and a massive violation of the Constitution because it is an attempt to ban guns by making them impossible to use except is very specific ways outlined by government. The Bill of Rights is a limitation on the power of the Federal government to oppress the people. It is not and never has been a limitation on the individual as the left has attempted to claim. Without the 2nd amendment, all the others become privileges granted at the discretion of the government.

    1. One-vote House majority plus one-vote Senate majority plus lack of a presidential veto equals an enlarged Supreme Court.

      #FollowingTheRules

      1. Rev. Arthur L. Kirkland
        August.16.2019 at 3:16 pm
        “#FollowingTheRules”

        When it suits you, asshole bigot. Other than that, forget it.

      2. You have a pretty low opinion of Democrats if you think that all it would take. Granted, you have five examples right here easily sliding under your bar, but surely not all Democrats are as craven and clueless as these five.

        1. Are you serious?

      3. So the Democrats are planning to not only pack the Supreme Court, but nuke the legislative filibuster, too?

        1. And pretty much guaranteeing not even a blue dog democrat will ever get voted into office in even a pink district for 20+ years again.

          1. Tell us more about how Republicans are going to be strong candidates in an America whose electorate is becoming less rural, less bigoted, less white, less religious, and less backward.

            1. So in YOUR demented world, Republicans are all uneducated, rural, bigoted, backward rubes? I’ll match IQs with anyone here and spot you 10 points and I don’t have a bigoted bone in my body, if you discount my preference for politicians who actually believe in the Constitution (and have READ it.)

              1. Republicans who merely appease bigotry harmed electorally just as much as will those who embrace bigotry.

                And every Trump voter appeases bigotry and backwardness.

                If you believe a more diverse, less superstitious, more tolerant, less rural, more modern American electorate will be favorable for Republicans and conservatives, I would welcome your explanation.

                1. “”And every Trump voter appeases bigotry and backwardness.”‘

                  Properly educated people don’t use generalizations and guilt by association to define guilt.

                2. Identity politics is tolerant? Gee, ye olde us vs. them is hardly a prescription for tolerance, but for it is for divisiveness and bigotry. And “every Trump voter appeases bigotry” is nothing if not a bigoted statement (and I didn’t vote for Trump). It’s equivalent to saying every Democratic voter appeases the antisemitism that certain junior members of the Democratic house caucus seem to espouse. An ad hominem smear, nothing else.

                  I used to laugh at your benighted comments, Artie, though occasionally with some irritation that such a virtue-signaling numptie could spout the nonsense you have without being sufficiently self-aware that it only showed narrow-mindedness and lack of tolerance. Now, I just find you an absurd nuisance.

                  And a Rev., too. Maybe you pray more and hate less.

      4. Yeah, but that’s not the last word.

        Then cometh the voters. Governing abosolutely with a 50+1 majority will piss off the middle third of voters for at least a decade.

        When we say “that’s how you got Trump” (and lost a 60 seat senate in 2 cycles, and a 78 seat majority house in one cycle), we aren’t talking about Russians, we are talking about Obamacare.

    2. TxJack….I’m with you on this: In all my years as an adult and voter, I have never seen either party become so unhinged. This letter is far beyond a concern, it is a threat. These Senators are clearly telling the court to vote as they want or face some insane attempt to pack the court.

      The political environment is toxic, or perhaps radioactive. We have had the attempted assassination of Congressmen and Senators on a baseball field. Insults and slurs have become the norm. Political supporters of both parties are literally fist-fighting (and sometimes more) in the streets, in multiple cities. Communication has completely broken down over questions of motivation.

      Tell me….does this look like the beginnings of a civil war to you? You read historical accounts of the 1852-60 time period, and the language used then and the things people did….is eeriely similar to what we see today.

      History may not repeat, but it sure rhymes right now.

      1. “The political environment is toxic, or perhaps radioactive.”

        The left warned that if Trump was elected, there would be increased violence.
        He was and the lefty went out and delivered the increase in violence.

      2. “Political supporters of both parties”……

        I’m not sure that party is as important as ideology. Many right leaning people don’t like team R. Many left leaning people don’t feel that the pandering and grievance identity politics of the D’s can ever go far enough.

        As someone who has never supported a politician in my life, I look at today’s rabid left and think, dude! Wow. Holy shit, man. Team R wouldn’t want me on their side either, but you guys are totally insane. You should be glad I don’t vote.

        Haha. Don’t change a thing.

        1. Vance….I am somewhat in the same boat. I look at Team R and Team D as two streams of one party: Statist Party.

          Team R is just politically incompetent. I mean, they are just terrible at managing the politics and optics. Truly awful.

          Team D has just gone batshit crazy. I mean…crazy.

          I make it a point to vote. Assuming you’re a citizen, I think you should, too.

    3. Forget about the supreme court. If I submitted a brief like this to the lowest court in any state, I’d be jailed for contempt and my license to practice would be in jeopardy.

      1. I was wondering about that isn’t it illegal to threaten a court? and this letter is clearly a threat

        1. Explaining that Democrats are likely to respond to Republican partisanship by following the rules to enlarge the Supreme Court (or restructure the Court in another manner) is no threat.

          It’s good government.

          Carry on, clingers. So far as your betters permit.

        2. I guess if the threat is within your legal powers it isn’t illegal.

  13. The senators’ argument would be much more convincing if it were made for a case their side was likely to win.

    1. Demanding the Court refuse to hear a case their side is nearly certain to lose is pretty much the same thing.

  14. Correct me if I’m wrong, but doesn’t the SC (and judges in general) tend to get pissed when one side starts out by throwing accusations and threats at the JUDGE? I mean, historically that doesn’t go well for them, right?

    1. This is Roberts we’re talking about. The one thing he is most afraid of is upsetting government.

      1. This whole episode reminds me of the full-court press that went on (behind the scenes) shortly after the oral argument on Obamacare back in 2012. Word got out among DC insiders that Roberts initially sided with Scalia, Kennedy, Thomas, and Alito in finding Obamacare unconstitutional, and then everyone from the President on down began jawboning Roberts to get him to change his mind. Which of course he ultimately did.

        1. what a chickenshit. He’s weak.

    2. If you have the facts on your side, pound the facts.

      If you have the law on your side, pound the law.

      If you have neither the facts nor the law, pound the table.

    3. In this case the people making the threat are untouchable except by the voters, (And the voters in a position to touch them probably like what they did.) and may soon be in a position to carry out the threat.

      That makes a difference.

  15. It seems sporting that Democrats are warning conservatives that enlargement of the Court is an increasingly likely prospect — and would merely be a case of following the rules.

    1. Because the Dems don’t want anything independent. Especially the courts.

    2. I’m not a fan of the reverence for the Court, so by all means, execute your plan to destroy its legitimacy.

      1. Sorry. I accidentally flagged your comment for review. It was unintentional.

        1. Well goddamn, the flag is just RIGHT THERE.

          (Famous IRC exchange from long ago
          Noob: You all suck cock.
          Noob: Sry. I meant “hello”.
          Noob: The keys are just right there together.)

    3. Rev. Arthur L. Kirkland
      August.16.2019 at 3:14 pm
      “It seems sporting that Democrats are warning conservatives that enlargement of the Court is an increasingly likely prospect — and would merely be a case of following the rules.”

      No. It seems loser asshole bigots are grasping at straws.
      Open wide, asshole bigot; you and the other asshole bigots are making it a very good bet that Trump is going to get rammed down your throat once more.
      Fuck off and die.

      1. Funny thing is, if Trump does win again, you might see a mass suicide or two on the far left.

          1. I’ll sell them the rope…

            1. They still have plenty of Obama-flavored Kool-Aid.

          2. Did you know that if a Progressive Democrat looks in a mirror in a darkened bathroom and virtue signals three times, they will disappear up their own asshole?
            Sadly, this does not keep them off Twitter.

        1. I think assassination attempts are more likely than mass suicides.

      2. You guys sure talk tough for a bunch of clingers who have been submitting to having progress shoved down their whimpering throats by their betters for a half-century or more. Bluster from obsequious right-wing culture war casualties doesn’t mean much to educated, reasoning, modern Americans.

        Open wider clingers. Better Americans aren’t nearly through with your bigoted, half-educated political carcasses yet.

    4. I agree. Trump should heed their warning and nominate ten more justices to SCOTUS next week and have the Republican-led Senate approve them.

      Or is that not what you meant?

      1. The size of SCOTUS is set by law so you would need the House to increase the size of the court.

        1. Actually, no. There is no such power in the Constitution. The President does have the power under Article II, Section 2, with the advice and consent of the Senate, to appoint justices to the Supreme Court with no limit specified of the size of the Court.

          1. Is that a Regent law degree, a George Mason law degree, a Liberty law degree, a Hillsdale correspondence course certificate, or a Sovereign Patriot discount homeschooling outline talking, Bruce? How about you, Chippa? Who is responsible for your level of legal insight?

          2. I don’t think that’s right. At least it’s not how it has ever been interpreted. The supreme court has been various different sizes, both greater and less than 9 over the years. And the size has always been determined by congress. Are you really claiming that the president has the power to nominate an unlimited number of judges to positions that don’t yet exist?

    5. Maybe Trump and the Republicans should stack the court while they’ve got the opportunity. If the Democrats are going to do it anyway if they win both the senate and the presidency, then better for the Republicans to beat them to the punch and offset any gains the Democrats would make. If the Democrats don’t take both the senate and presidency, then the conservatives and Republicans will have open season on all the laws and court precedents they don’t like. Now, wouldn’t that be fun?

      1. Please continue to deliver your insights on how American government works by the scant thimbleful, Bruce D. Your mistaken conclusions are good for lathering up the rubes, and some of us are entertaining by watching the whining when those bubbles break.

        1. So in YOUR demented world, Republicans are all uneducated, rural, bigoted, backward rubes? I’ll match IQs with anyone here and spot you 10 points and I don’t have a bigoted bone in my body, if you discount my preference for politicians who actually believe in the Constitution (and have READ it.). And you’re a “reverend” of WHAT exactly?

          1. Congregation Of Exalted Reason.

            Not all Republicans are bigoted, rural, uneducated, backward rubes. Plenty are, however, and all Republicans have become appeasers of bigotry and backwardness by supporting Pres. Trump. The Republican Party platform is bigoted and backward.

      2. The Republicans could only have done that if it had been when Republicans controlled both houses. It would take legislation to expand the Supreme Court.

  16. Besides this brief being utter garbage, this court has been less partisan then any I can remember in awhile. Gorsuch and Sotomayor have a whole will they end up sleeping together vibe going; ripped right from a 90s sitcom.

    The stodgy conservative white male and the fun loving ethnic female are now working side by side, one week they hate each other the next they love each other and every week they have a new zany adventure. Tune in every Thursday night @ 8:00 pm on the WB to catch the latest episode of SCOTUS Dis-Robed.

    1. It’s even worse than I thought. I didn’t realize that all of the evidence Whitehouse had about the partisan nature of the decisions and every principle they ignored in reaching them came from a paper (or speech) he prepared for the American Constitution Society. Not only is he citing himself for evidence, but he’s whining about the Federalist Society in a brief that’s based on a paper (or speech) he prepared for the American Constitution Society.

      What a joke.

    2. “This week, Jamie and Sonia are thrown together to resolve “The Case of the Nemesis Curiae Brief”. Only on the WB!”

  17. I honestly don’t care who suggests that considering the constitutionality of a law would be a good thing. They’re right.

  18. Can these people not HEAR themselves? Have they no comprehension of what they sound like? How many times in the past three years have we heard Democrats effectively say, “the established political process isn’t producing the results we want, so we’ll change it the first chance we get!” The electoral college. The Supreme Court. And the idiocy in California to keep people who don’t subscribe to the Democrat orthodoxy off the ballot.

    Maybe this happens a lot more on the Right than I’m aware of. What I remember from the Right is “We need more Conservative justices on the bench, so we need to use the process to get them there. Ok, this past three years the Republicans have made use of the changes the Democrats made in Congressional processes to push through their choice nominations. As I recall, they warned the Democrats that those changes would come back to haunt them.

    1. You are confusing them with people who have a conscience. You might as well ask Jeffrey Dahmer: “don’t you understand you’re hurting people?”

      1. None of them have a conscience.

    2. They know what they sound like. The sound is music to the ears of the electorate in their solidly blue states.

  19. With 17% approval rating (and as low as 9%), it seems to me Congress is in need of restructuring.

    I’d eliminate all Congressional salaries, increase the number of representatives to about 30000, and have them meet online only. Officially, it should be in session for two weeks a year and be allowed to pass no more legislation than two bills a day.

    Congress and congressional offices can be turned into housing, easing the housing shortage.

    1. Congressmen should have offices in their home district, with regular business hours that they are expected to maintain, under penalty of recall. There should be a public posting of where they go when they’re not there, and why.

  20. Would be nice to see a conservative justice, even via a solo concurrence, throw some serious shade at this nonsense brief.

    1. Actually, Chipper, it would not surprise me if a liberal justice like Ginsburg shot back at this brief.

      1. Actually, I could see that happening. The proposals I’ve seen for Court packing don’t stop at adding a couple of seats, they’re proposing a 15 member Court. It appears that they figure that, if they’re going to pack the Court, they might as well do a proper job of it, and turn it into a rubber stamp even most of the current liberal members would be horrified by.

    2. I nominate Mike Lee! He’s having his aide (was intern) Blondie McStraightface prepare the meme graphics as we speak. Can’t imagine what direction he’d take…oh look, there’s Fredo!

  21. what is going on editorially with the mix & match abbreviations for states after the moron Senators’ names??

  22. This is about the stupidest thing I have ever seen. Apparently these idiots don’t understand how this is going to work out for them. On the off chance this tactic works in intimidating the court, then everyone will do it on every case and the next time that the GOP has a super-majority, they really will restructure the court. Far more likely, the court will either ignore it or it will push them to find against NYC or write a more expansive opinion than they would have (even if that impulse is subconscious and subtle). Either way this is a stupid move.

    My guess is that these guys are trying to channel Trump. Trump has one advantage that they don’t. Trump is capable of reframing a loss as a win (probably, in part, because he is too stupid to know that he’s lost). I don’t think that these guys have that in them.

    1. You don’t really understand the point of Court packing.

      You don’t pack the Court just to go on as usual, only the Court rules your way more often. You pack the Court to turn it into a rubber stamp, so that you can then pass all sorts of laws to rig the political process without them getting overturned.

      The aim is that there never be another GOP majority. Court packing is supposed to open the way to turning the US into a one party state, not just give the Democrats a minor edge.

  23. “Rational political debate”…

    In 2019…

    LOL!

  24. The Democrats absolutely should pack the court. It’s an appropriate response to what the Republicans did with Garland, and I say that as someone who thinks Gorsuch is a much, much better Justice than Garland would have been; and also as someone who thinks existing gun laws are already going way too far.

    1. What exactly did they do to Garland? There is no requirement to vote on a presidential nominee, so what did they do?

      1. There’s no requirement to keep the court at 9 members either.

        1. Actually there is a law that would require them to vote and change the law. What they are proposing is you either vote our way or we will change the courts to fit our narrative. That is considerably different than McConnell not holding a vote on a single justice.

    2. Also, they should pack the courts because their nominee didn’t get picked? So in essence you have no morales. Okay. Good to know you support the Godfather approach to governing Fredo.

      1. “Didn’t get picked” lol at least be honest about the situation. McConnel refused to even hold hearings, let alone take a vote, while outright lying about the reason. When asked if he’d wait for the election if RBG died next year, he laughed and said of course he wouldn’t. Talk about lack of morals.
        If he wants to play dirty, he should be met in kind.

        1. I was honest. He didn’t get picked. Again no requirement to have a vote. You obviously have no qualms about threatening the courts, but it seems a bit more than underhanded. And surely won’t end well. Also, who cares what McConnell’s motives were. It was his choice, period. As for there being no requirement to keep the courts at 9, of course there isn’t. But the only reason the Democrats are wanting to change that is to force the courts to follow there demands. Thus, ending the idea of the courts being apolitical. Where would it end? And stop pretending you are principled at all if you can support this travesty in the least bit. Nice attempt at a Libertarian sock there. But Garland… Such a piss poor excuse.
          Let’s just keep adding justices until it goes our way. That will never lead to tyranny.

          1. No, Sol, fafalone is right. Garland should have been given a hearing. Then the Republicans could have produced “credible” witnesses to “prove” that Garland was getting blackout drunk in pre-school, organizing rape parties in Kindergarten, and writing racist dog-whistle coded hate speech in his first grade yearbook. That’s the fair way to block a nominee!

            1. Garland and Kavenaugh are friends as both were on the same circuit for years, Im sure when the get together to compare notes on how the senate treated them Garland has fewer complaints than Kavenaugh. I can’t think of a single bad thing a GOP senator said about Garland.

          2. Nine is a magic number (check out Sudoku) or the Ringwraiths in Lord of the Rings.

          3. To whatever extent SCOTUS was apolitical, that definitively ended with Garland. That was pure politics, not apolitical. But it only matters if the left is apolitical to you; the right can play whatever underhanded political games they want, but for the left to do the same… why that’s terrible, it might result in a Justice not nominated by a Republican, and that’s all that matters. We’re already at tyranny, that’s what McConnel did. And without a proportionate response, it’s just going to get worse.

            And also, refusing to provide advice and consent is abdication of a constitutional duty. It should have ended right there, with Garland appointed under the argument that the Senate had waived its role.


            Number 2 – That was indeed ridiculous what they did to Kavanaugh, and I’ve never argued he should have been denied the seat over it, despite my disgust with his jurisprudence. Got any more straw men hiding back there?

            1. No it isn’t abdication of Constitutional duty. They gave advice by deciding not to hold hearings. End of story.

            2. Also, the USSC had nothing to do with the Garland decision therefore they remain mostly apolitical. Besides not holding hearings and threatening to get your way is two different things.

  25. And these five aren’t political hacks?? That’s their best argument? An insult? No wonder even Trump could beat the Democratic party’s best.

    1. Haha. Yup. And he will again. These people are insane. That might have been the strategy all along.

    2. It would seem almost impossible to find Senators less worthy of respect than those five. Gillibrand is a panderer who will say anything and change any position if she thinks it will advance her career, but still can’t make it above about 5% approval in any polling of presidential candidates. Blumenthal is known for having lied about his military service, but is so lacking in self-awareness that he actually tried to attack Kavanaugh’s honesty with the “falsus in uno, falsus in omnibus” phrase (“lying about one, lying about everything”). Whitehouse and Durban are longtime politicians from Illinois and Rhode Island, both states with long histories of machine politics and corruption. Hirono is a perfect example of the Democratic party in Hawaii: always stick to the party line, don’t make waves, wait your turn and be rewarded with an election to a position from what is the closest thing the U.S.A has to a rotten borough. To steal a line from Pelosi, a glass of water could win a Senate seat from Hawaii if you put a “D” on it.

  26. Democrats believe in fairness. If you are losing, then it’s only fair to change the rules.

  27. The attorneys that wrote and filed such a brief should be held contempt and seriously sanctioned!

    1. “Respectfully submitted,
      “Sen. Sheldon Whitehouse
      “Counsel of Record”

  28. The revised NYC law still leaves a number of unconstitutional rules in place. The city, still maintains its “unwavering view that the ability to transport a licensed handgun is a matter of government-conferred privilege, rather than a constitutional right.”
    The revised regulations demand continuous and uninterrupted transport forbidding a stop at a gas station or coffee shop en route.
    The revised law requires written permission before a handgun can be taken to a gunsmith, and preclude transport to a summer rental house.

    1. ATF and NYPD estimate one to two million unlicensed, unregistered handguns in NYC.

      But NYC thinks it is accomplishing something by over-regulating and nitpicking the hell out of the few thousand legal gun owners who submit to their useless, counter productive regime.

    2. The NYC law isn’t just in violation of the Constitution. It violates the travel provisions of the FOPA, too; No state or local government can legally make it a crime to travel through their jurisdiction from a place where a gun is lawfully possessed, to another place where it may be lawfully possessed.

      And NYC has no jurisdiction whatsover over their residents once they’re outside the city’s boundaries, so can’t make any laws that would make that possession unlawful elsewhere.

  29. نقدم افضل الطرق لاصلاح تسريب المياه شركة كشف تسربات المياه بالاحساء

  30. Maybe this reveals the Dems fear that a close look will show the New York Sullivan Act is blatantly unconstitutional and consign it, and most of the Dems gun control agenda based on it, to the ash heap of history, where the 18th Amendment sits like a blackened banana peel.

    Since the 1920s New York politicians have tried to impose the Sullivan Act on the rest of the country by pretending the 2A does not say what says, and by ignoring the RKBA clauses of state constitutions and declarations of rights. Dem gun control policy is political hackery.

  31. Please explain how Republicans are going to establish a supermajority in an America becoming more diverse, more city-centered, less bigoted, less superstitious, and less insular.

    There just aren’t enough vestigial bigots and poorly educated clingers left in an improving America to keep Republicans competitive in national elections.

  32. Can any of the clingers who frequent these parts demonstrate that any wingnut opposed the recent enlargement of the Arizona Supreme Court?

    That would suggest at least a shred of principle among clingers (to offset the obvious bigotry).

  33. 1. Stare Decisis is not a conservative principle. It is deployed by both left and right jurists, and only ever deployed dishonestly.
    2. The court has never really been a-political. William Brennan would tell his clerks: “The most important word in constitutional law is five. With 5 of 9 justices, Anything is possible.” The democrats are just getting mad at the Republicans for doing what the left-wingers did under the Warren Court. The right doesn’t have a monopoly on strategic litigation.

    1. Brennan was also the justice who, post-retirement, explicitly stated that we would first determine what outcome he wanted for a case, then figure out how he could use the law to get him there.

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  36. One of few actual libertarian writers at reason

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  38. Anybody who still doesn’t realize that trying to “play by the rules” with the progs is a losing proposition is a moron.

    We’re past that stage in the USA today. This is example 23 bajillion that they just want power, at any cost. They must be politically crushed and annihilated at all costs if we want a free(ish) country to continue to exist.

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