Sen. Sheldon Whitehouse has written and filed an unusual brief with the U.S. Supreme Court. Typically, when legislators file “friend of the court” briefs, they are about what a ruling would mean for Congress or their constituents. Whitehouse’s brief, filed on his behalf and that of four other senators, is different. It is an attack on an independent judiciary, on the ability of people to vindicate their constitutional rights in federal courts, on donor anonymity, on public interest lawyers, and on other things Whitehouse thinks are bad.
The case in which he filed his jeremiad concerns whether a New York City ordinance that banned the transfer of a legal gun to a home or shooting range outside the city limits complied with the Second Amendment. Concerned that the Supreme Court would say “no,” the city amended the law and then argued that the case was moot.
However, quitting before you lose is a litigation trick so well-established that it has a name: “voluntary cessation.” The courts often find voluntary cessation cases are not moot because the offending party can simply resume the challenged activity once the court dismisses the case.
Whitehouse urges the Supreme Court to reject this straightforward conclusion. If it does not, he warns it will face “restructuring,” like court packing or other changes he thinks will make the court more likely to vote the way he wants. The threat to judicial independence is obvious; nonetheless, Whitehouse says this is not a threat, but a caution. A friendly reminder, like when a mugger tells a witness not to go to police or his legs might break.
Whitehouse wants the Supreme Court to find the case moot, not because he believes it is moot (there is no legal analysis in the brief), but because, he says, the case is part of a “project” by the National Rifle Association to “expand” the Second Amendment. The brief plays off this argument to take aim at a wide range of targets: The court’s “conservative” majority, the Federalist Society, people who donate to nonprofits, and conservative or libertarian public interest lawyers. He even faults the clients of these lawyers—who are they to have their constitutional rights vindicated?
All of these entities share a common failing: they believe things Whitehouse does not. He would prefer they stop advocating for and donating to their causes or representing clients for free, and just allow the government to violate their rights. He wants to name donors and reveal their addresses so they will stop supporting causes he does not like because knows that this is an invitation to financial, professional, and maybe even physical, retribution.
The brief is not just nakedly hostile to free debate, it is also simply wrong in a number of places. He characterizes the Supreme Court’s Citizens United decision as a triumph of anonymous “dark money,” when, in fact, the court upheld disclosure requirements in that case.
Whitehouse also accuses conservative and libertarian public interest groups to be part of a plot to create a corporate dystopia using, as he puts it, “faux” litigation. From the brief, he would clearly view my organization, the Institute for Justice, as one of these sinister “freedom-based public interest law” organizations.
Yet, in the Supreme Court’s last term, IJ won two cases, one by a vote of 9-0 and the other by a vote of 7-2 (with Justices Neil Gorsuch and Clarence Thomas voting against our clients). In the first case we represented a former heroin addict whose property the government had seized. Our litigation received the support of the American Civil Liberties Union, the Southern Poverty Law Center, and other leftist groups too numerous to list.
In the other, we represented the owners of a small liquor store who were trying to break the hold of an old, established cartel that kept them from earning their livelihood. This was hardly the conservative majority voting for faux litigants representing the “corporate and Republican political interests” that Whitehouse imagines.
Whitehouse bases his brief on an argument that the Supreme Court must change because the public will not like the court’s decisions. Yet that is the purpose of an independent judiciary vigorously applying the Constitution: to insulate the fundamental rights of all citizens from the vagaries of public opinion. Unfortunately, it appears that the Supreme Court must also protect Americans from elected officials who cannot handle dissent.
This article has been updated since publication.