Democratic lawmakers blast Supreme Court commission for 'both-sidesing' court politicization

Democratic lawmakers blast Supreme Court commission for 'both-sidesing' court politicization
U.S. Supreme Court, 2021

Four congressional Democrats wrote a scathing letter to President Joe Biden's Supreme Court reform commission this week, calling out the commission's failure to address or even examine the degree to which dark money groups with well-funded lobbying campaigns have influenced the court, both in terms of the justices appointed and their decisions.

In the letter, Connecticut Senator Richard Blumenthal, Rhode Island Senator Sheldon Whitehouse, Hawaii Senator Mazie Hirono, and Georgia Representative Hank Johnson remind the commission that they've already called this issue out: "We wrote to you earlier this year to emphasize that the issues your Commission is tasked to consider cannot be addressed without grappling with pressing judicial ethics concerns, including the role of secretive special-interest influence in and around the Court." The commission released its first discussion drafts last month, showing that it was failing to address some of the Court's fundamental problems—like the politicization of the court through groups like the Federalist Society—and downplaying others.

"As currently drafted, this report is a disappointment to anyone who had hoped for a clear-eyed effort to address the Supreme Court's deep troubles," the lawmakers write. "The Commission's draft report acknowledges in passing that 'confirmation battles of recent years have given rise to a multi-million dollar lobbying campaigns' to support and oppose particular nominations," the lawmakers note.

"But the Commission has failed to probe why such sums are being spent to control the Court's composition, or to ask who might be spending this money and—most important—what interests they may have before the Court. The Commission has also failed to consider whether these investments have actually shaped the substance and outcomes of the Court's decision-making, as they were no doubt intended to do."

The lawmakers also strike at the core of the commissions' failings, it's insistence on "both-sidesing" the politicization of the court. "This view that 'both sides' are equally to blame for the politicization of the Court, and the implicit assumption that members of the Court are themselves insulated and apart from this politicization, is an unproven proposition," they wrote.

"In the face of overwhelming evidence that the Court has been captured by partisan donor interests, it is wrong to perpetuate the fiction that it has not been," the lawmakers write. "By grounding its draft report foremost in the concern that the public must perceive the Court to be legitimate and independent, the Commission fails to consider the very real and much more dangerous possibility that it might not be."

The updated draft of the commission, released ahead of a Friday public meeting, shows that the commission is still not dealing with that fundamental challenge of this court. That's not too surprising—the commission includes a few staunchly anti-abortion lawyers and Federalist Society members.

Although the Federalist Society has succeeded in packing the court, the commission argues that expanding the court would endanger the court's legitimacy. "This uncertainty leads even some who fundamentally disagree with aspects of the current Supreme Court's jurisprudence to believe it is better to preserve the court's long-term legitimacy and independence than to open up the court to be packed by potentially dangerous and even authoritarian political movements going forward," the commission materials said. Again, as if this court, with three Trump appointees whose legitimacy is at best questionable, is above question.

The lawmakers detail the evidence of a broken court, influenced by political groups, and demand that the commission address these facts:

(a) that the last three Supreme Court vacancies were filled through the efforts of a private organization (the Federalist Society) receiving enormous contemporaneous, anonymous donations;

(b) that anonymous individual checks as large as $17 million funded Supreme Court confirmation battle advertising, with no way to know what business those donors had before the Court;

(c) that orchestrated flotillas of anonymously funded right-wing amici appear regularly before the Court, and achieve virtually perfect success with the Republican appointees;

(d) that a peculiar fast lane has emerged that rushes politically loaded cases to the Supreme Court through deliberate trial and appellate court losses;

(e) that intensely political partisan decisions have hinged on findings of fact that were not an appellate court's ordinary province, that were not supported by a factual record, and that ultimately were demonstrably false;

(f) that capture by special interests is not limited to administrative agencies but can infect courts as well;

(g) that as much as $400 million in anonymized money has been spent through an array of coordinated groups seemingly designed to capture the Supreme Court, a sum not usually spent without motive; and

(h) that, in civil cases decided by a 5-4 partisan Supreme Court majority during the Roberts era in which there was an evident Republican donor interest, the donor interest win record was an astonishing 80-0.

"These unpleasant facts do not disappear just because we may wish them to," the lawmakers write. "The American people are counting on this Commission. Please do your duty."

The commission is expected to release its final report on Dec. 15.

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