Will SCOTUS Be Manipulated?

Having spent a couple years now telling anyone who would read her columns that the Supreme Court was nothing more than some political hackary, with illegitimate justices sitting in stolen seats, doing the bidding of their partisan puppet masters to execute their evil plan to destroy the nation, Linda Greenhouse created the foundation for her latest and finest effort to beg the question.

Back in January, I devoted my first column of the new year to the growing impatience of some members of the court for a chance to move the boundaries of the Second Amendment from the home — where its 2008 decision in District of Columbia v. Heller had located the amendment’s protection of the right to bear arms — out to the wider world. A few weeks later, the court agreed to hear the first Second Amendment case in nearly a decade.

The only basis for Greenhouse’s “growing impatience” is Greenhouse’s claim of “growing impatience.” The Second Circuit had done yeoman’s work promoting New York’s hatred of*, and protection from, guns, basically daring the Supreme Court to reverse them. For a decade, the Supreme’s demurred. Until New York State Rifle and Pistol Association v. City of New York.

The case reflected a violation of the Second Amendment so flagrant, so blatant, that it couldn’t be ignored. And New York, recognizing that it was doomed, sought to game its way out of a decision that could be disastrous for the rest of its anti-gun regime.

But while the New York case, which does not yet have an argument date, emerged this spring as a significant test of the justices’ Second Amendment appetite, it has become in recent weeks something even more. On July 22, New York City filed with the Supreme Court a “suggestion of mootness” and a request to suspend the briefing schedule. The city explained that two interlocking developments had occurred: In the session just ended, the State Legislature had amended the handgun licensing statute to require localities to allow licensed handgun owners to transport their guns to second homes and target ranges outside the city; and the New York City Police Department, which supervises gun licensing, had amended the prior regulation to permit the same activities. The city argued that since the lawsuit had challenged only the second-home and shooting-range limitations, the plaintiffs now had everything they had asked for and there was nothing left for the Supreme Court to decide.

The Supremes didn’t blink this time, and rejected this attempt to moot the question which not only had a great likelihood of coming back as soon as the case was trashed, but reflected the far deeper, far more pervasive, unconstitutional regulatory scheme. So the newest and coolest narrative is whether the keeper of the Supreme Court’s institutional integrity, C.J. John Roberts, will bend to the will of the maddening crowds.

There’s a fascinating transparency to the evident stalemate over whether to keep the case or dismiss it. Plainly, the conservative justices don’t want to throw away their shot. (Pardon the irresistible image.) But here’s an interesting angle: It takes four votes to accept a case, but it requires five to dismiss a case once accepted. Where is Chief Justice John Roberts?

Greenhouse goes on to note a brief filed on behalf of some students from Marjory Stoneman Douglas High School in Parkland, Florida, who endured a mass shooting.

Their stories are heart-rending, but that’s only part of the point.

Are constitutional rights dictated by the most “heart-rending” story?

The brief’s real message lies in the description of the political activity that each young person has undertaken as part of an effort to reset the country’s approach to guns.

Are constitutional rights dictated by the efforts of a handful of young persons? Another amicus brief was filed by five Democratic senators, who apparently aren’t willing to risk tears and Greenhouse’s imaginary motivations and incentives to make their point.

The brief ends with this ominous warning:

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.

Translation: Nice nine-person Supreme Court you have there. It would be a shame if anything happened to it.

Pretty extreme for a “quirky” case, but one that has the potential to fundamentally alter the gun paradigm in New York and the Second Circuit. If Roberts can’t be broken by tears, then maybe a pointed threat to pack the court will do the trick.

*The only exception, apparently, is guns in the hands of black kids in Brooklyn, for whom possession of an illegal gun was still wrong, but understandable, per Emily Bazelon.

23 thoughts on “Will SCOTUS Be Manipulated?

          1. Guitardave

            Could you at least send them instructions on how to post their crappy vids properly? One early AM road trip and this is what happens?….oy!

  1. B. McLeod

    This could illustrate why it was a mistake to transmute the Court into a super-legislature, as now, the actual legislature has an incentive to mount a takeover attempt. It is the path around gridlock. If you can’t get a measure through both houses, pack the Court and let the Court super-legislate the failed measures.

  2. Richard Kopf


    The brief by Senator Sheldon Whitehouse, who, oddly appears as counsel of record for himself and the other progressive Senators, is remarkable and deeply disturbing defaming and threatening, as it does, the Court. It is worth pointing out, however, that conservative Senator Ted Cruz, who clerked at the Court, wasn’t above hurling remarkably similar slurs at the Court together with explicitly threatening to restructure the Court:

    “I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.”

    Ted Cruz, Constitutional Remedies to a Lawless Supreme Court, National Review Online (June 26, 2015) (“This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government. . . . . Both decisions were judicial activism, plain and simple. Both were lawless.”).

    I am reminded of Mercutio in William Shakespeare’s tragedy, Romeo and Juliet. Shortly before his death, Mercutio famously curses both the Montagues and Capulets, “A plague o’ both your houses!” Yet, at death’s door, Mercutio can’t resist making one final joke: “Ask for me to-morrow, and you shall find me a grave man.” Mercutio’s joke is on us.

    All the best.


    1. SHG Post author

      Is there a distinction to be drawn from Cruz’s demagoguery appearing in NRO and Whitehouse’s in a filed amicus brief?

      And as William Shakespeare wrote in A Midsummer Night’s Dream, Act II, Scene 1, stage directions:

      Enter, from opposite sides, a Fairy, and PUCK

  3. Hunting Guy

    Mark Twain.

    “Never argue with stupid people, they will drag you down to their level and then beat you with experience.”

  4. B. McLeod

    If Congress decides to go with this packing thing, the Court will grow larger and larger every time the balance of power changes between the political “parties.” Eventually, we could all end up on the Court.

  5. szr

    I think (hope?) you’re reading too much into the language of the brief.

    Senator Whitehouse used nearly identical language in at least two previous SCOTUS briefs (Janus and New Prime v. Oliveira), and it seems almost like boilerplate language for when he argues that the Court should not accept a case with political implications on jurisdictional grounds.

    Maybe Senator Whitehouse thinks this argument will appeal to Chief Justice Roberts because of the Chief Justice’s previous public statements about the credibility of the judiciary? It might not be a good argument; it might be an irresponsible argument; but I doubt it was intended as a threat to pack the court.

      1. szr

        You will get no disagreement from me that he is a weasel. I would just add that he is a pompous and narcissistic weasel.

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