But such is the controversy that Sen. Sheldon Whitehouse (D-R.I.) and four other Democratic senators have ignited with a filing that instructs the Supreme Court to either drop a New York gun case it has accepted for the coming term or face a public reckoning.
“The Supreme Court is not well. And the people know it,” writes Whitehouse, who is listed as the attorney of record on the friend-of-the-court brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ” The phrase is from a poll question with which a majority of Americans agreed.
Democratic Sens. Mazie Hirono (Hawaii), Richard Blumenthal (Conn.) Richard J. Durbin (Ill.) and Kirsten Gillibrand (N.Y.) joined the incendiary brief, which questions whether the court’s conservative majority — nominated by three Republican presidents — is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society, a conservative legal group.
“Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills,” Whitehouse writes. “In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their ‘project.’ ”
The brief has lit up the right. Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) called it an extraordinary threat from one branch of government to another and tweeted: “Packing the Supreme Court . . . Bad idea. Liberal dream. Trump’s 3rd term is looking better and better.”
The Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an “enemy-of-the-court brief” — and the National Review’s David French called it “astonishing.”
“It is easily the most malicious Supreme Court brief I’ve ever seen,” he wrote. “And it comes not from an angry or unhinged private citizen, but from five Democratic members of the United States Senate.”
In an interview, Whitehouse was unapologetic, saying he was cautioning the court, not threatening it.
“In the same way that you might warn somebody walking out on thin ice — ‘Hey, the ice is thin out there, you want to be careful, maybe you want to come in’ — I think that was the motivation for filing this brief,” said the former U.S. attorney and state attorney general.
“To warn the court that it already has its reputation in some degree of trouble . . . it’s getting to the danger that they might fall through the ice.”
The Supreme Court in January said it would hear New York State Rifle & Pistol Association v. City of New York, a case involving some unique-to-New-York restrictions on how gun owners with permits may transport their weapons. The rules were so strict that they forbade taking an unloaded weapon to a firing range outside the city or to a permit-holder’s second home within the state.
It is the first Second Amendment case the court has accepted in a decade, and it came after the NRA-endorsed Justice Brett M. Kavanaugh replaced the more moderate Justice Anthony M. Kennedy on the closely divided court. Gun-control advocates worried that the case would provide a chance for the new majority to establish a right to carry a weapon outside the home, or impose heightened judicial scrutiny on gun control laws.
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