Opinion: Sheldon Whitehouse vs. the Supreme Court
is at it again. The Senator who threatened the Supreme Court with retribution over a gun-rights case in 2019 is now threatening Congressional action if the Justices don’t follow his orders on how they conduct judicial business.
On Wednesday the Rhode Island Democrat will hold a Judiciary Committee hearing on “What’s Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary.” Subtlety is not Sheldon’s speciality. The hearing is intended to advance his Amicus Act that would force the Court to change its rules on amicus briefs, which the Justices invite to inform them on the law and facts on cases.
Note the disrespect for the Court. The title of the hearing signals a foregone conclusion that the Justices are corrupted by money. This is a running theme of Mr. Whitehouse, whose preoccupations in the Senate have been undermining judicial independence and restricting the First Amendment rights of private citizens to influence their government.
The Supreme Court already has a rule—37.6—that governs amicus filings. It requires that amicus briefs “indicate whether counsel for a party” involved in the litigation “authored” or “made a monetary contribution” to the preparation of the brief. It further requires disclosure of “every person other than the amicus, its members or counsel, who made such a monetary contribution.”
Mr. Whitehouse wants to go further and require amicus filers to disclose all of their donors. This would hit groups on the left and right that aren’t required to disclose their donors but have scholars or legal experts who submit briefs. The Chamber of Commerce and NAACP would have to disclose all of their donors if they want to file briefs. This would deter some filers and thus less fully inform the Court, or it would open donors to these groups to political harassment—from the likes of Mr. Whitehouse and his political allies.
All of this is almost certainly a violation of the First Amendment right to free association and speech. The Supreme Court ruled in NAACP v. Alabama (1958) that forcing donor disclosure can chill such rights. Mr. Whitehouse nods to this concern but claims that “granting sweeping anonymity protections to all member organizations, including business networks like the U.S. Chamber of Commerce whose corporate members face no serious threat of reprisal for the public expression of their views, simply does not follow.”
In other words, some groups have a right to free association but others don’t. Mr. Whitehouse will be the judge.
The Senator’s quote comes from a Feb. 23 letter he co-wrote with
Rep. Henry Johnson
(D., Ga.) to the chairman of the Committee on Rules of Practice and Procedure of the U.S. Judicial Conference. The committee writes guidelines for judicial practice, and the letter says “we believe a legislative solution may be in order to ensure much-needed transparency around judicial lobbying.” The Amicus Act is helpfully attached.
This is a clear threat that, if the courts don’t follow his orders, Congress will rewrite the judicial rules. The Amicus Act probably wouldn’t pass today’s 50-50 Senate, but the Senator is sending a message to Chief Justice
The Chief joined the liberals in backing away from ruling on a New York gun regulation after Mr. Whitehouse and four other Senators wrote an amicus brief threatening that the Court might have to be “restructured” if the Justices ruled the wrong way.
We hope the Court ignores these threats, but it can also fight back though the law. The Court recently agreed to hear a case challenging California’s donor disclosure rules, Americans for Prosperity Foundation v.
. The NAACP, the ACLU and other progressive groups have joined the Cato Institute and others on the right in filing amicus briefs against the law as a violation of their First Amendment right of association.
If the Justices overturn California’s law, they will send a message to Mr. Whitehouse that his disclosure obsession is way over the constitutional line.
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Appeared in the March 10, 2021, print edition as ‘Sheldon Whitehouse vs. Supreme Court.’
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