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Republican senators just sent the US Supreme Court a strange letter

Senate majority leader Mitch McConnell.
Reuters/Leah Millis
McConnell has ideas, just not about the law.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Published This article is more than 2 years old.

US senators, Democrats and Republicans alike, are in a huff over a Second Amendment case in the Supreme Court. The gun-rights matter, raised by the New York Rifle and Pistol Association and stemming from a New York City law, is inspiring unusual writing from both sides of the political aisle.

The latest missive to the court, submitted yesterday, comes in the form of a letter from Senate majority leader Mitch McConnell and 52 colleagues. It is basically about politics, not the law.

In fact, McConnell expresses no opinions about the issues in the case but reminds the justices that they are an independent body, not subject to pressure from politicians (a fact that they are surely aware of and an assertion that seems suspect coming from that particular writer).

McConnell’s letter isn’t so much to the justices, however, despite being addressed to the court. It’s really a response to an amicus brief filed earlier in the month by five Democratic senators who believe the high court should consider the case moot.

Behind the battle

The Democratic senators argued that the court should not consider Second Amendment issues in the case because New York City has already revised its law to address constitutional flaws. Much more controversially, the senators claimed that the New York Rifle and Pistol Association is only insisting on review because, along with the Republican Party, the National Rifle Association, and the Federalist Society, the local gun group sees the high court—now composed of five conservatives and four liberals—as its tool to expand gun rights.

The filing from the Democrats noted poll results showing that many Americans believe the justices are political actors, which undermines the legitimacy of their decisions. It alluded to restructuring the bench and asserted that the court “is not well.”

“The implication is as plain as day,” McConnell’s letter states, “Dismiss this case or we’ll pack the court.” His letter goes on to express fear that Americans will be unable to trust the court—a claim not so different from the ones Democratic senators made in their brief—if the justices seem to be responding to politicians’ concerns. The majority leader writes:

Democrats in Congress and on the presidential campaign trail have peddled plans to pack this Court with more justices in order to further their radical legislative agenda. It’s one thing for politicians to peddle these ideas in Tweets or on the stump. But the Democrats’ amicus brief demonstrates that their court-packing plans are more than mere pandering. They are a direct, immediate threat to the independence of the judiciary and the rights of all Americans…Americans cannot trust that their constitutional rights are secure if they know that Democrats will try to browbeat this Court into ruling against those rights.

McConnell and his colleagues urges the justices to carry on with their work, assured in the knowledge that as long as he and the signatories are in office, the Supreme Court will remain the same. To prove their point is nonpartisan, presumably, they cite liberal justice Ruth Bader Ginsburg in the conclusion of their letter, saying, “We share Justice Ginsburg’s view that ‘nine seems to be a good number.’ And it will remain that way as long as we are here.”

No laughing matter, yet…

The underlying matters are deadly serious, to be sure, but the letter’s tone and contents are almost laughable.

It seems highly unlikely that the justices need a reminder of judicial independence—they are forever insisting on it, after all. Last year, when Donald Trump decried a decision by an “Obama judge,” chief justice John Roberts issued an unusual public rebuke, explaining that there are only judges—not Obama judges or Trump judges.

As for court-packing plans, to the extent that Democrats intend to appoint as many liberal justices as possible, they are in no position to do so right now. The Trump administration is nominating judges now, and even including judges whose confirmations McConnell helped to stall during Barack Obama’s presidency. Not only did Republicans thwart Obama’s Supreme Court nomination of Merrick Garland, they have been confirming  federal judges at a remarkably rapid rate, including placing two justices on the high court in under two years—  Neil Gorsuch and Brett Kavanaugh.

On the 2016 presidential campaign trail, Trump publicized a list of potential Supreme Court nominees, something that no candidate had ever done. The move was viewed as positive among Republicans and, some say, helped seal his victory.

Progressives are actually concerned that Democrats aren’t thinking enough about the judiciary. They argue that the party should take a page from Republicans, who have long understood the importance of judicial appointments to long-term ideological influence.

Finally, and perhaps most importantly, the justices are not fools. No one is more aware of the distinction between being a politician and being a judge. They have shown in their decisions this last term that they are perfectly capable of reaching conclusions based on legal reasoning and not the “politics of the moment,” as evidenced by the fact that they didn’t decide all, or even most, cases along party lines.

McConnell and his colleagues only expose their own distrust of the justices, as well as an inflated sense of self-importance, by urging the justices to “fulfill their oaths to faithfully and impartially follow the law.” In this sense then, signatories to the letter committed perhaps an even more egregious sin than the brief they discredit.

The Republicans’ letter didn’t even claim an interest in the case and so made no legal arguments—thus, their missive simply wastes court time and resources.

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