The Left’s campaign of vilification and intimidation to try to control the Supreme Court is a saga with a number of shameful chapters dating back to the smearing of Robert Bork in 1987. Their game plan is simple: defeat originalist nominees to the Court by whatever illegitimate attacks can be conjured up. Failing that, bully and delegitimize the Supreme Court justices who are not deciding cases with the policy-driven activism that is the hallmark of the modern Left. Senator Sheldon Whitehouse (D-R.I.) has made this his mission.
This intimidation campaign has picked up at a crescendo over the past five years, starting with the slanderous and, fortunately, unsuccessful campaign to block the confirmation of Justice Brett Kavanaugh. Then, in August 2019, Senator Whitehouse and some of his Democratic colleagues filed an amicus brief, which included a thinly veiled threat to restructure the Court if it did not rule their way in a Supreme Court case involving a Second Amendment challenge to New York City’s gun law: “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.”
During the 2020 Democratic presidential primary season, the notion of court-packing emerged as a prominent agenda item for the first time since it was thoroughly discredited over eighty years earlier with the failure of Franklin D. Roosevelt’s scheme to increase the number of justices. Not surprisingly, liberal dark-money organizations were happy to drive much of this sentiment. Several of them, including Demand Justice and NARAL, hosted a forum promoting court-packing, which was attended by most of the viable Democratic presidential candidates at the time. Future cabinet member Pete Buttigieg endorsed increasing the size of the Court to as many as 15 justices, while Senator Bernie Sanders preferred rotating justices and limiting their terms. Each approach had the same objective: intimidate and remove the influence of the Court’s originalists.
In March 2020, on the day the justices heard oral argument in the abortion case June Medical Services v. Russo, then-Senate Minority Leader Chuck Schumer stood in front of the Supreme Court building and shouted, “I want to tell you, Gorsuch! I want to tell you, Kavanaugh! You have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
What sort of price awaited the non-compliant justices? We began to see the grim answer last year after Justice Samuel Alito’s draft opinion for the Court in Dobbs v. Jackson Women’s Health Organization, which would overturn Roe v. Wade,was leaked to the press by a still-undisclosed person who betrayed the institution he or she worked for in unprecedented fashion. The dark-money group “Ruth Sent Us” disclosed the home addresses of the six Republican-appointed justices, which protesters (any number of whom were paid) used for illegal protests with the obvious intention of influencing the justices by intimidation. Churches and schools attended by family members of the justices were also targeted. Other churches were targeted for vandalism, as were crisis pregnancy centers, several of which were firebombed. Justice Kavanaugh was the target of an assassination attempt.
After the Court officially handed down the Dobbs decision, the Left embarked on a cynical campaign to stoke outrage over supposed ethical lapses by the originalist justices considered ideologically disagreeable, starting with Justice Clarence Thomas. The entire exercise relied upon incompetent journalism and a laughably transparent set of double standards that holds conservative and liberal justices—including the lionized Justice Ruth Bader Ginsburg—to vastly different standards. ProPublica, which took the lead in attacking Justice Thomas, is not a credible news organization, but a front group funded by left-wing billionaires with an agenda. The campaign was, of course, a failed effort, unable to uncover a single case of a justice being corrupted. The entire point was to delegitimize a Court that was unwilling to act as an outlet to impose the Left’s policy preferences.
On Capitol Hill, Senator Whitehouse has been the senator most loudly trumpeting pseudo-ethics outrage with respect to the Court. As The Wall Street Journal editorial board observed, he has been “long overdue for his fitting of a tinfoil hat.” In May, he used his Judiciary Committee perch to conduct hearings as a platform to promote a reckless “ethics reform” bill that, among other things, would bring chaos to the Supreme Court. The bill would institute a free-for-all system in which anyone could bring challenges to a panel of lower court judges in order to disqualify particular Supreme Court justices from participating in specific cases. Clearly aimed at subtracting justices from targeted cases, the bill is simply a variation on the politically unpalatable alternative of adding justices to the Court.
But Whitehouse did not stop there. He recently introduced another bill that would provide for a new justice to take the bench every two years, and under which only the nine most recently appointed justices could hear appeals. That effectively would limit the term in which they could preside over appeals—the vast majority of cases on the Court’s docket—to eighteen years. Other than filling in for a justice not participating in a particular appellate case, the remaining justices would be limited to the small number of cases in which the Court has original jurisdiction—those involving disputes between states or arising among ambassadors and other high-ranking ministers.
Besides being convoluted, this proposal would require amending the Constitution, which does not limit the terms of Supreme Court justices. Whitehouse and his Democratic cosponsors claim this proposal will help depoliticize the nomination process, yet we have witnessed their shamelessly political intimidation campaign for years. Their real agenda is unmistakable: to get rid of originalist justices, starting with Justice Thomas.
Carrie Severino on November 2, 2023