Sen. Whitehouse’s Amicus Op-Ed
This month, Sen. Sheldon Whitehouse, D-R.I., filed an amicus brief (also known as a “friend-of-the-court” brief) to the Supreme Court in a case about New York City’s restrictions on transporting handguns outside city limits. The brief, filed on behalf of Sen. Whitehouse and four other Democratic senators, makes one overarching argument: The Court should not have accepted the case. Although such arguments are common in appellate courts like the Supreme Court, the brief’s tone, allegations and opaque threats are not.
“The Supreme Court is not well,” the brief argues. The brief suggests that a cycle of “multimillion-dollar advertising campaigns to shape [the] Court’s composition” and “an industrial-strength influence campaign aimed at [the] Court” have secured favorable results on behalf of “big funders, corporate influencers, and the political base of the Republican party.” The brief concludes with an ominous warning: Change direction, before the “public demands” that Congress dramatically “restructure” the Court.
Many have criticized the brief’s rhetoric. The Wall Street Journal called it “an enemy-of-the-Court brief” and “a dramatic escalation in the Supreme Court wars.” Austin Sarat, an associate dean and professor at Amherst College, wrote that “the senators join the President in bringing the politics of denunciation to the Supreme Court’s doorstep.” Harvard law professor Laurence Tribe tweeted that he agreed “the Court should drop [the] case” but asserted that Sen. Whitehouse’s brief “was inappropriately — and stupidly— threatening.”
Adding to the brief’s rhetorical blemishes, some of its primary claims are hyperbolic and—at best—misleading. For instance, take Sen. Whitehouse’s view of 5-4 decisions:
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.
This claim tries to generate two assumptions for the reader: (1) that the Court often issues 5-4 decisions, and (2) that most—if not all—5-4 decisions fall on clean partisan lines. But this is a misleading picture of the Court’s work.
Sen. Whitehouse’s claims come from an April 2019 report he wrote for the American Constitution Society. The report looked at Supreme Court cases from 2005 to 2018. In that period, the Court released well over 900 decisions (usually between 70 and 80 each year). From those hundreds of cases, the report found only 212 5-4 decisions in civil cases. Of those 212 cases, the report could only identify “78 in which the Roberts Five provided all five votes for the majority”—or 37%.
As Whitehouse’s own findings make clear, 5-4 decisions are rare. Last term, for example, only 29% of the Court’s opinions were 5-4. To compare, in the same term, 38% of the Court’s cases were decided 9-0, and another 18% were decided 8-1 or 7-2. This follows a consistent, historical trend: Since 2005, the average number of 5-4 opinions each term is 21%, and “since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions.”
What’s more, the ideological trend of 5-4 decisions this term bucks the misguided allegations of endless divided, partisan rulings. As Adam Feldman from Empirical SCOTUS observed, last term “only 50 percent of the ideologically split 5-4 decisions had the more conservative justices in the majority, with the majority in the other half comprised of the four more liberal justices and one conservative justice.” In other words, many of the most divided cases this term did not fall into clear ideological boxes.
Beyond numbers, the justices themselves continue to reject Whitehouse’s allegations of blatant partisanship. As Justice Elena Kagan stressed to Congress earlier this year:
[The Court is] a very collegial institution and we like each other quite a lot. And I think people think of the 5-4 decisions as the only thing we do. In fact, [we] agree with each other far more often than we disagree with each other.
…
And, you know, of course there are going to be cases on which [we have] different views about how to do law, how to interpret the Constitution. … But, you know, 40, 50% of the time, we’re unanimous, which is sort of an amazing thing, given that we only take the hardest cases, cases on which there are splits in the courts below and another 30 or 35% of the time we’re split in all kinds of random and different ways.
So I think it is one of the things that we would like to make clear to people is how much of what we do does not follow this stereotype of the perpetually divided Court.
Sen. Whitehouse’s brief is worrisome. Its unabashed attack on the judiciary and disregard of norms merits criticism—the same sort of criticism warranted when the president makes similarly unwise remarks. The senator’s conversion of an amicus brief to a long-form op-ed is an unwelcome development. After all, the purpose of an amicus brief is to help the Court understand complicated matters, not to condemn it. Instead, the brief propels the misleading narrative of unending 5-4 decisions and unfairly characterizes the justices as brazen partisans beholden to undue outside influence.
We should hope that op-eds thinly disguised as amicus briefs do not become a growing trend.
