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The judiciary has long been seen as an impartial arbiter, or at least that
is the image that all wings of capitalist politics in the US presented for
many decades. Now that image is being pierced by the increasingly partisan
Supreme Court, and it worries the liberals for two reasons: First is that
they are genuinely concerned for the maintenance of bourgeois democracy.
That, after all, is what they base themselves on. Second is that the
increasingly clear partisan and class position of the Supreme Court is
weakening this icon that means so much to them. As for what they propose,
it is useless. Why not "pack" the Supreme Court? Here's an article in
today's Washington Post:

The Supreme Court has become just another arm of the GOP

*Sheldon Whitehouse, a Democrat, represents Rhode Island in the U.S.

Politics is a team sport. We battle, and our courts are supposed to referee
our disputes.

But what if one team spent years and millions of dollars to capture the
referees, so the refs could declare that team the winner whenever they fell
short on the field? If you were on the other team, you’d cry foul. You’d
ask: “Hey, when did the law become a team sport, too?’’

A few weeks ago, several Senate colleagues and I did just that when we filed a
friend-of-the-court brief
a case before the Supreme Court in which the National Rifle Association had
urged the court to continue its “project” (the NRA’s term) to undermine gun

We cried foul. That triggered a remarkable response.

Conservative media lit up in unison. Fox News and the Wall Street Journal
editorial page
for instance, attacked us for advocating “court packing,” something we did
not advocate. The Journal used language so similar to a separate National
Review op-ed
it issued an unusual editor’s note denying plagiarism. Then, all 53
Republicans in the Senate
out a letter to the court’s clerk decrying our brief. What hoopla.

So, what did we actually say?

We said this: From 2005 through the fall term of 2018, the Roberts court
issued 73  5-to-4 partisan decisions benefiting big Republican donor
interests: allowing <https://www.oyez.org/cases/2008/08-205> corporations
to spend unlimited money in elections; hobbling
regulations; enabling
on minority voting rights; curtailing
right to organize; denying
the ability to challenge employers in court; and, of course, expanding
NRA’s gun rights “project.” It’s a pattern.

Of course, in other decisions during that period, such as the 2015 same-sex
marriage ruling, a Republican appointed justice joined the liberals. But in
its run of 73 partisan 5-to-4 cases, the Republican majority routinely
broke traditionally conservative legal principles, such as respect for
precedent or “originalist” reading of the Constitution. They even went on
remarkable fact-finding expeditions, violating traditions of appellate

In their letter, our Republican colleagues invoked Alexander Hamilton’s
vision of the “complete independence of the courts.” We’re glad they did,
because our purpose in calling attention to this pattern is to help restore
the judicial independence Hamilton envisioned.

The big-donor takeover of the federal courts begins, as reported
The Post, with a sprawling network of organizations funded by at least a
quarter-billion dollars of largely anonymous money, and spearheaded by the
Federalist Society’s Leonard Leo. We saw this network’s hand in the
confirmations of Justices Neil M. Gorsuch and Brett M. Kavanaugh. One
unnamed donor gave
million to the Leo-affiliated Judicial Crisis Network to block the
nomination of Judge Merrick Garland and to support Gorsuch; then a donor —
perhaps the same one — gave another $17 million
prop up Kavanaugh. The NRA joined in the effort, too, spending $1 million
an ad campaign supporting the Kavanaugh confirmation to “break the tie”
(again, the NRA’s words) in gun cases.

With its judges in place, the network lobbies the court with anonymously
funded amicus briefs, signaling how the judges should vote. In one case
<https://www.oyez.org/cases/2017/16-1466>, *Janus v. AFSCME*, one
anonymously funded group backed 13 different amicus briefs
public-sector unions’ right to organize. The decision came as expected, 5
to 4, throwing out 40 years of settled labor law.

Republicans and their big donors now see the court as part of their team.
They can achieve political gains there that they cannot win in Congress.
The supposedly apolitical nature of the court partly protects these
political gains from critique. And after 73 partisan victories, they’ve had
a hell of a run. That explains why our brief provoked such an outcry from
their side.

But Americans can smell a rat. The pattern is too distinct to ignore. We
warned the court of polls showing
<https://poll.qu.edu/images/polling/us/us05222019_trends_usch36.pdf/> that
the public’s faith in the court’s independence is eroding. Americans
becoming wise to their game is surely concerning to the anonymous funders.
Corporate, polluter and partisan donor interests want the eyes of the
nation turned elsewhere, while their “projects” play out in captured courts.

So the right-wing media eruption tried to deflect our plainly stated
concerns by suggesting we want to change the number of justices on the
court. That’s not what we’ve argued. My own calls for judicial reform have
been for transparency around the dark money behind judicial nominations and
amicus briefs; for improved ethics reporting and a court code of ethics;
and for justices to follow principles they espouse at confirmation hearings
such as respect for precedent, judicial modesty, deference to duly passed
laws of Congress, letting fact-finders find the facts, and calling balls
and strikes apolitically. None of that seems unreasonable.

The right-wing eruption offered no defense of why a multimillion-dollar
secret influence apparatus should be involved in selecting justices and
campaigning for their confirmation and filing anonymous amicus briefs.
There was no defense of the court systematically overturning precedents or
inviting challenges to well-established doctrines or finding specious facts
or discarding appellate norms; and there was no defense of the run of
73 partisan decisions.

Instead, we saw precisely the howl of coordinated, multiple-mouthpiece
misdirection you would expect to hear from big donors whose scheme to
capture the Supreme Court for one team was suddenly exposed and is now at
*“In politics, abstract terms conceal treachery.” *from "The Black
Jacobins" by C. L. R. James
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