In August 2019, Rhode Island Senator Sheldon Whitehouse signed and filed an Amicus Brief in the U.S. Supreme Court that threatened the Justices with future court-packing if they didn’t vote his way on a 2nd Amendment case.

It truly was an extraordinary move, as we explained in Dem Senators to Supreme Court: Rule our way on 2nd Amendment case, or face possible restructuring:

Whitehouse’s attacks on Brett Kavanaugh during the confirmation hearings were demeaning and absurd, Senator Sheldon Whitehouse grilled Brett Kavanaugh about a high school yearbook fart joke. Seriously.

So it’s no surprise that the Brief signed by Whitehouse attacked Kavanaugh, the conservatives on the Court, and the very existence of the Court itself by suggesting the Court would be restructured if it ruled the wrong way.

It was a double-barrel attack — impugning the motives of those holding different views of the 2nd Amendment and threatening to damage the Court’s legitimacy:

Yet this is precisely—and explicitly—what petitioners ask the Court to do in this case, in the wake of a multimillion-dollar advertising campaign to shape this Court’s composition, no less, and an industrial-strength influence campaign aimed at this Court. Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gunsafety regulations. Particularly in an environment where a growing majority of Americans believes this Court is “motivated mainly by politics,” rather than by adherence to the law,2 the Court should resist petitioners’ invitation….

To stem the growing public belief that its decisions are “motivated mainly by politics,” the Court should decline invitations like this to engage in “projects.” See Quinnipiac Poll, supra note 2 (showing fifty-five percent of Americans believe the Court is “motivated mainly by politics”)….

The influence effort directed at this Court has been industrialized. In this particular “project” to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici. As usual, the true identities and funding sources of most of these amici are impossible to ascertain. Amicus groups claim status as “socialwelfare” organizations to keep their donor lists private,7 and this Court’s Rule 37.6 is ineffective at adding any meaningful transparency.8 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.

The closing paragraph was at best a thinly-veiled threat (emphasis added):

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

This was not so much a legal argument, but a shot across the bow of the Court and Chief Justice Roberts in particular.

Nice Court you have there, Chief, shame if something happened to it.

Whitehouse’s Brief generated enormous controversy, and a complaint by Judicial Watch with the Unauthorized Practice of Law Committee of Rhode Island’s Supreme Court, since that Whitehouse signed the brief while on “inactive” Bar status in Rhode Island.

Now Republicans in the Senate have responded with a letter to the Clerk of the Supreme Court, which reads in part:

On August 12, several of our Democrat colleagues filed a brief amicus curiae in support of the City urging the Court to dismiss the case as moot under Article III of the Constitution. We of course have no problem with Senators submitting amicus briefs. Many of us have done so. But our colleagues did more than raise legal arguments in favor of mootness. They openly threatened this Court with political retribution if it failed to dismiss the petition as moot. The briefs final paragraph warned: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.” The implication is as plain as day: Dismiss this case, or we’ll pack the Court.

There is no greater example of the genius of our Constitution than its creation of an independent judiciary….

But judicial independence is under assault. 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….

For our part, we promise this: While we remain Members of this body, the Democrats’ threat to “restructure[]” the Court is an empty one. 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.

The letter was signed by all 53 Republican Senators.

 
 
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