Supreme Court Justice Samuel Alito addressed the Federalist Society last week and held forth on a number of topics affecting the Court. One of the most interesting subjects he covered was the handling of the New York State Rifle & Pistol Association v. City of New York gun rights case.
After referring to the right to keep and bear arms as “the ultimate second tier constitutional right in the minds of some,” Justice Alito addressed the naked threats made against the Court in a brief submitted by five Senate Democrats in a clear attempt to bully the court.
Five United States senators who filed a brief in support of the city went further. They wrote that the Supreme Court is a sick institution, and that if the court did not mend its ways, well, it might have to be quote, restructured.
Afterwards receiving this warning, the court did exactly what the city and the Senators wanted. It held that the case was moot. And it said nothing about the Second Amendment.
Three of us protested, but to no avail. Now, let me be clear, again, I’m not suggesting that the court’s decision was influenced by the senators’ threat. But I am concerned that the outcome might be viewed that way by the Senators and others with thoughts of bullying the court.
This little episode, I’m afraid may provide a foretaste of what the Supreme Court will face in the future. And therefore, I don’t think it can simply be brushed aside. The Senators’ brief was extraordinary. I could say something about standards of professional conduct. But the brief involved something even more important. It was an affront to the Constitution and the rule of law.
Let’s go back to some basics. The Supreme Court was created by the Constitution, not by Congress. under the Constitution, we exercise the judicial power of the United States. Congress has no right to interfere with that work any more than we have the right to legislate. Our obligation is to decide cases based on the law period. And it is therefore wrong for anybody, including members of Congress to try to influence our decisions by anything other than legal argumentation.
That sort of thing is often happened in countries governed by power, not law. The Supreme Court Justice from one such place recounted what happened when his court was considering a case that was very important to those in power. He looked out the window and saw a tank pull up and point its gun toward the court. message was clear, the slide the right way. Or the courthouse might be, shall we say, restructured?
That was a crude threat. But all threats and inducements are intolerable. Judges dedicated to the rule of law have a clear duty. They cannot compromise principle or rationalize any departure from what they are obligated to do. And I’m confident that the Supreme Court will not do that in the years ahead.