sheldon whitehouse
Sen. Sheldon Whitehouse, D-R.I. (AP Photo/J. Scott Applewhite)
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By Austin Sarat

Legal briefs, in even the most high profile cases, rarely make headlines. They are technical documents intended to persuade judges in a case about particular points of law.

In American law schools, students now take courses to help them master the arcane genre of brief writing. Their persuasiveness depends on carefully marshaling legal precedents and complex, factual arguments. As a result, they seldom interest anyone outside the legal community.

On Aug. 12, we witnessed a rare exception.

That’s when a friend of the court brief, known as an “amicus” brief, was filed in the Supreme Court by five Democratic senators, including one presidential candidate. The senators were Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York.

The brief provoked considerable controversy and even led to the filing of a legal complaint against Whitehouse, who was its principal author.

Gun regulation case

The amicus brief asked the court to dismiss a challenge to a New York City ordinance. The law prohibited licensed gun owners from transporting their guns out of the city, for example, to shooting ranges or second homes.

The challenge was issued by the New York State Rifle and Pistol Association, which argued that such a prohibition infringed on Second Amendment gun ownership rights as well as the Commerce Clause and the right to travel.

The case seemed destined to become a vehicle for the court to strictly limit gun regulations. To ward that off, New York City repealed the offending regulation in June.

Doing so, city officials assumed, would render the case moot. The plaintiffs would no longer have standing to sue, and the case would not result in weaker gun control laws.

An unusual brief

The senators supported that view. But their amicus brief presented little in the way of legal argument.

Instead it offered a broad and unprecedented indictment of the court’s conservative majority.

It accused the five justices who were appointed by Republican presidents– Samuel Alito, Neil Gorsuch, Brett Kavanaugh, John Roberts and Clarence Thomas – of pursuing a “political project” and being in league with the National Rifle Association and other pro-gun groups seeking to radically expand gun owners’ protections provided by the Second Amendment.

The petitioners’ “effort did not emerge from a vacuum,” the brief alleged. “The National Rifle Association (NRA), promoted the confirmation (and perhaps selection) of nominees to this Court who, it believed, would ‘break the tie’ in Second Amendment cases. … This backdrop no doubt encourages petitioners’ brazen confidence that this Court will be a partner in their ‘project.’”

The brief was particularly harsh on Justice Kavanaugh, whose confirmation was aggressively pursued by the NRA. And it was blunt in documenting the alleged partisanship of the conservative justices. It quoted an NRA ad supporting Kavanaugh’s confirmation: “‘Four liberal justices oppose your right to self-defense. … Four justices support your right to self-defense. President Trump chose Brett Kavanaugh to break the tie. Your right to self-defense depends on this vote.’”

Pointing out the increasingly polarized nature of the Supreme Court is standard fare in scholarly commentary.

Nevertheless, as someone who teaches and writes about American law and courts and knows the traditions and styles of brief writing, I was surprised by what the senators wrote. The Wall Street Journal got it right when it called it an “enemy of the court brief.”

Brett Kavanaugh, Neil Gorsuch, Elena Kagan
From left, Supreme Court Associate Justices Brett Kavanaugh, Neil Gorsuch, and Elena Kagan  (AP Photo/Andrew Harnik)

A brief’s history

Some legal scholars trace friend of the court briefs back to Roman law. Others argue that they originated in the English common law.

Whatever their origins, there is no dispute about the fact that amicus briefs have been a longstanding part of Anglo American legal practice. Although filed by many different kinds of parties, they have been useful vehicles for the public to make its views known to judges.

Today, in the United States such briefs allow interested parties, who are not themselves litigants, to bring to court “relevant matter not already brought to its attention by the parties.” For example, in 2013, the American Psychological Association submitted a brief in an important affirmative action case that offered scientific evidence about the educational benefits associated with campus diversity.

Amicus briefs are a growing feature of Supreme Court litigation. A study by two law professors found that “submissions at the Supreme Court have increased 800 percent since 1954 and 95 percent between 1995 and 2015.”

In addition, a story on the Columbia Law School’s website says that in the Supreme Court’s 2017–2018 term, “Amicus curiae briefs were filed in every one of the 63 argued cases, averaging just over 14 briefs per case, a new record.”

Do they matter?

Harvard law professor Noah Feldman contends that those briefs do not help the court and impose substantial burdens on the justice’s clerks, who are responsible for reading and digesting them. Another law professor, Philip Kurland, once called the filing of amicus briefs “a waste of time, effort, and money.”

Yet those briefs have been important to groups, like the NAACP, seeking to expand civil rights protections. One of the NAACP’s most influential briefs was filed by future Justice Thurgood Marshall in Brown v. Board of Education. It helped the court understand the pernicious effects of segregation on black school children.

Friend of the court briefs also are often submitted by well-financed interest groups or organizations seeking to shape court decisions.

Amicus briefs are cited frequently in Supreme Court opinions. In the 2017-18 term, justices did so in 23 majority, 21 dissenting, and five concurring opinions.

‘Declaration of war’

Neither Thurgood Marshall, nor those routinely filing friend of the court briefs, have used them to accuse the court of providing “a friendly audience” for a particular interest group.

The directness and harshness of the rhetoric in the senators’ brief may be a reflection of the temper of America’s legal and political culture in the age of Donald Trump. Or, it may be a logical next step in a war over the Supreme Court’s direction that began with the Senate’s 1987 rejection of the nomination of conservative hero Robert Bork.

Whatever its causes, the brief signals the transformation of a venerable legal tool into a weapon of Democratic partisan combat. This weapon is aimed at a court likely to be controlled for the foreseeable future by Republican-appointed justices.

The brief concludes with the warning that the court must “heal itself” lest it be “restructured.” As one progressive group aptly noted, that warning is less the work of a legal document than “a declaration of war.”


Austin Sarat is professor of jurisprudence and political science at Amherst College.

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    • It’s a direct, black-on-white message to the Court to rule the way they want them to rule.

      The last I heard, attempting to influence a federal judge into ruling a certain way is a fucking felony. With a healthy prison sentence if found guilty.

      And that zero-ambiguity turd they dropped is the evidence to convict.

      Can someone please explain to my they haven’t been arrested yet?

      • Is it because they own the Dept. of Justice? It’s double tough to get a judge to convict himself. For some reason, the guilty tend to be unreasonable about accepting facts, when the issue is their own guilt. Who’da thunk it, huh?

        • “(d) Each United States marshal, deputy marshal, and any other official of the Service as may be designated by the Director may carry firearms and make arrests without warrant for any offense against the United States committed in his or her presence, or for any felony cognizable under the laws of the United States if he or she has reasonable grounds to believe that the person to be arrested has committed or is committing such felony.”
          – 28 U.S. Code § 566. Powers and duties

    • I think the best political meme I’ve seen lately is one resembling a Nazi poster from WW2, with a heroic Nazi character with a DNC logo replacing the swastika and says:

      “It’s Not Fascism When We Do It!”

  1. Now, imagine if you will…”Weaponized Red Flag Laws/Extreme Risk Protection Orders” designed to stop the U.S. citizenry from rising up and participating in another American U.S. civil war against “domestic government gone rogue, and becoming Authoritarian through case in point…” By means of “collusion” of the legislative and judicial branches of government in Order to effect the constitutional rights of the mass majority under the false guise of public safety…

    • virtually every infringement on natural right has been incurred in the false guise of public safety. It’s the oldest play in the political book: “it’s for your own good…”

  2. col·lu·sion

    secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others.
    “the armed forces were working in collusion with drug traffickers”
    synonyms: conspiracy, connivance, complicity, intrigue, plotting, secret understanding, collaboration, scheming
    “there has been collusion between the security forces and paramilitary groups”

    illegal cooperation or conspiracy, especially between ostensible opponents in a lawsuit.

  3. kan·ga·roo court
    /ˈˌkaNGɡəˈro͞o ˌkôrt/


    noun: kangaroo court; plural noun: kangaroo courts

    an unofficial court held by a group of people in order to try someone regarded, especially without good evidence, as guilty of a crime or misdemeanor.
    “they conducted a kangaroo court there and then”

  4. How may people understand that the Constitution actually gives Congress the power to dictate to SCOTUS which cases it can and cannot review. It can also determine the makeup of the Court with any number of Justices it pleases. The Constitution doesn’t outline how SCOTUS should be constructed; it only says a Federal Court must exist, and leaves the details to Congress. So while this maneuver by the Dems seems outrageous, it’s technically within Congress’ power to do so, even if it’s controversial due to the subject matter.

    This, people, is why it’s so important to vote true Constitutionalists into office. The more civics-ignorant Reps and Senators we send to D.C., the more shenanigans like this we’ll end up seeing.

    Of course, James Madison stated in the Federalist Papers that SCOTUS isn’t designed to have any real power over the other two branches, anyhow.

    • “…the Constitution actually gives Congress the power to dictate to SCOTUS which cases it can and cannot review.”

      True, but once the case has been selected (and NY Pistol was selected, by Court vote), they cannot influence or attempt to influence its outcome.

      That’s racketeering, cut and dried. Who’s job is it to arrest them?

      • The ones empowered to arrest anyone, including a sitting president. The US Marshall’s Service.
        There was a joke going around during the Clinton (Bill, not shrillary) debacle, during his last years as the commie-in-chief.
        A US Marshall is training a class. He brags; “We are the only ones empowered to arrest a sitting President.”
        A voice comes from the back; “And why aren’t we doing our job?”
        And they STILL aren’t doing it. 🙂

        • Exactly! Ultimately, all of the power rests with the people. This is what the elite power brokers need to keep secret, to enhance their own nests.

    • The Supreme Court is established by the Constitution, and its powers are detailed in Article III:
      1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

      2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

      Congress has the power to create inferior courts (i.e., the Circuit Courts of Appeal and the trial court system), but not the Supreme Court, nor does it have the power to eliminate the court. It can, however, or at least apparently, determine the number of justices on the court. The Constitution is silent on the subject. Although threatened, no congress and no president has ever sought pack the court.

      • Mark,

        For the first eight months of our nation, there was no Supreme Court until Congress had framed and staffed it.

      • Franklin Delano Roosevelt voiced his intent to “pack” it by increasing from 9 to 15 Justices.

        This is where we got the saying “a stitch in time saves nine”.

        • And he did pack it anyway. Research how many SC Justices died during his presidency, and were replaced by him. Those years 1935-1940 are where the old system of going by the Law, was replaced by the system of legal “precedence”.
          It’s also why no precedent can be cited that’s from pre-1933. Oh, you can talk about them, and write articles about them… but just try to cite one in a ‘Court’ of ‘Law’.

  5. Honestly regardless of the side one is on, I can not for the life of me fathom such a statement in a legal brief.
    I may not agree with some cases or decisions, but I do look at them and try to determine the legality, and what judgement was used to reach said decision. That statement is a scary one.
    It is something you see in dictatorships, not this republic we live in.
    There is every reason for the brief to make a best effort to state the legal case involved but to threaten the standing of the Supreme Court is a declaration of war. It is threatening the a separate pillar of our government.
    Sure one can discuss a restructure of our court, however to do so in a brief is shameful.
    It shows the desperation and inability to support their argument. I could almost see RBG siding with conservatives on this. It would really blow their minds!

    • Yes, it’s quite frightening.

      It’s a reflection on how terrified they are gun rights will be finally right-sized, in line with the constitution.

      What terrifies me even more is that it will probably work, considering the tap-dance Roberts did in the 2012 ACA ruling…

      • It will NOT work. It’s TOO desperate, too obviously illegal, and too far from the mainstream. Only the 10-15% that will buy anything support this stuff now. Too many people have woke up and the overall conscientiousness level is now too high.
        They’re on the back side of the power curve, and now everything they do just weakens their position. They just spent two years and huge mounds of their political capital to unseat Trump. How’d that work out for them? Backwards. He’s now more popular and powerful than ever. That is the back side of the power curve.
        The region where everything works backwards to normal… where adding more power just deepens the stall. For those who might not have heard of this before, talk to pilot friends or read this page:
        It’s kind of like “Bizzaro World” in the Superman comic books. It’s a nasty place to be trapped. Since most won’t even know what’s going on, most will just add more and more power until they go straight into the ground with a big “SPLAT”, just as DC is doing now. I expect this one, when the entire US hits rock bottom, to be a really impressive splat!

        • “It’s TOO desperate, too obviously illegal, and too far from the mainstream.”

          Then why didn’t SCOTUS address this publicly?

          Some form of “I sure hope you aren’t trying to influence a federal judge, because that’s a quick way to get your ass thrown in prison”.

          By not dragging this out into the ‘public sunshine’ and dealing with it directly, the Court has just given tacit approval for those cocksuckers to do the same thing again.

          Is that now an acceptable thing to do?

        • The Supreme Court is a part of the problem. No side is on the side of the people. All the DC factions are just fighting over who gets to screw who for the next day or so. All sides are drunk on their own arrogance. It’s at this point that the infighting destroys the last of their power and the people rediscover courage and reclaim their sovereignty.
          There are no saviors. We will do it ourselves, or it will not be done. Waiting around for some ‘savior’ is what sheep do. People make things happen.

  6. Star Chamber


    WRITTEN BY: The Editors of Encyclopaedia Britannica

    See Article History

    Alternative Title: the Court of Star Chamber
    Star Chamber, in full the Court of Star Chamber, in English law, the court made up of judges and privy councillors that grew out of the medieval king’s council as a supplement to the regular justice of the common-law courts. It achieved great popularity under Henry VIII for its ability to enforce the law when other courts were unable to do so because of corruption and influence, and to provide remedies when others were inadequate. When, however, it was used by Charles I to enforce unpopular political and ecclesiastical policies, it became a symbol of oppression to the parliamentary and Puritan opponents of Charles and Archbishop William Laud. It was, therefore, abolished by the Long Parliament in 1641.

  7. “The brief concludes with the warning that the court must “heal itself” lest it be “restructured.””

    The Judiciary, led by the Supreme Court, is a co-equal branch of Government.

    The President has the authority, with the advice and consent of the Senate, to appoint judges to the Federal judiciary. Congress can also legislate how many justices are appointed to the various Federal courts.

    What neither Congress nor the President has the authority to do is to restructure the Judiciary. The Supreme Court determines the rules and procedures under which the Judiciary functions.

    The current Supreme Court can simply make rules and procedures that would make any new appointees “justices in waiting”, barring them from participating in any cases.

  8. The author suggests amicus briefs are a nuisance, but if the justices are citing them they clearly are of value to them.

    I am glad the Senators have declared their position. It is good to know just where they stand or kneel as is the case.

  9. What people said, Dont like the laws, change em. They can’t do shit about the millions of guns out in public hands anyway.

    • Exactly! Even if they could stop all production of all firearms tomorrow (and they can’t… obviously), the people have enough now to last for decades. Or perhaps, centuries. They would do better (from a tyrant’s perspective) to ban ammo. But with all the reloaders that wouldn’t work either, even if they could get it done, which they can’t.
      They’re too late. They’ve blown it, and all they are about now is staying in power for another day. All they do is react. We have the initiative now, and it’s why they are so very desperate. To the point of insanity. And they more insane they get, the more people they drive away.
      Back side of the power curve. The “region of reversed command.”

      • The joker botching the landing of Earnhardt Jr’s bizjet on a runway barely long enough for the job, and then attempting a go-around (on the second ‘bounce’) got a direct lesson in that about a week ago. The FAA interview with the pilot had this gem in it :

        “The pilots told the NTSB that after the second bounce they attempted a “go-around,” but the airplane did not respond as expected, so they landed straight ahead on the runway and could not stop.”

        “…the airplane did not respond as expected.”

        Ya think?

        • Even the best of pilots (most of them, anyway) don’t understand the back side. I took the time to get in it on purpose (with lots of altitude) to see what it felt like. Weird indeed. The only way out was to point the nose straight down and get some speed on. But that won’t work at 20 feet AGL…

      • How many reloaders make their own smokeless powder? Primers? Stamp out a case? ‘Reloaders’ are not making ammo, they are just assembling it from store bought parts.. sure, cast your own bullets.. what are you going to do with them, throw them really hard? An outright ammo ban will eventually include a ban on powder and primers.
        I can make rough blackpowder, and have numerous flinters, so it looks like I will be one of the last of the armed…

        • You might want to try leaving the sulfur out of a batch. It makes the powder harder to ignite, but more potent. If you use flintlock ignition, though, it’ll often misfire. With modern percussion caps, the problem goes away. If one can make fulminate of mercury, it will still ignite with homemade primers, but using strike anywhere match heads as the shock sensitive ingredient, the problem returns.
          Overall, I prefer leaving the sulfur in and getting all the smoke and stink. I love the smell of black powder in the morning…

  10. “…the brief signals the transformation of a venerable legal tool into a weapon of Democratic partisan combat.”

    Progressive Democrats weaponized the judiciary itself against the Constitution decades ago, and they’re increasingly frustrated that they haven’t been able to erase this country’s adherence to it.

    Nobody should be surprised at this point that their means toward “progress” includes naked threats.

    • “Nobody should be surprised at this point that their means toward “progress” includes naked threats.”

      Or actions. I’m taking them at their word they will do that.

      Because a ‘Progressive’ is, above all else, a ‘Progressive’ first…

    • Oh, they’ve been mainly making law by other means for 3/4 of a century now: a judiciary declaring things legislatures either omitted or rejected, “authorities” “agencies” n “departments” doing what internal experts decree, applied through their own “streamlined” judiciary, or, of course, an executive ruling with a pen and phone.

      The E R A tore it, I think. When they couldn’t get that, they decided to work outside the system (weirdly by subverting from within.)

      The counter arguments to “Can’t get anything done!” are two:

      1- Amendment defining presidential succession was implemented quickly after Reagan was shot. They know this one since they’ve been looking for two+ years to stretch it to remove the Pres in place. So, you can, in fact, get even an amendment through, if most folks mostly agree, and it’s written precisely, so it’s hard to hijack. Also helps if it solves a common problem for all vs. harvesting some to feast others.

      2- Everydamnthing they object to the other team doing is implemented by some fragment of power lying around because somebody did something.

      Having been thwarted, they’ve continued ever after to make the case tbat tbwarting tbem is good.

  11. Was the legal brief an attempt to influence the justices to dismiss the lawsuit through coercion? If yes I think the authors of the brief may have violated federal laws that prohibits such acts.

  12. hillary was supposed to be picking justices for the scotus. The temper tantrum started when she lost and it is ongoing. Now RBG is circling the drain and they are shitting themselves in fear.

  13. Regardless of whether there is a “conservative” or “liberal” supreme court, it has seriously lost it’s way. Instead of basing their decisions on the “supreme law of the land”, the Constitution of the United States, they have instead been deciding cases based on “precedent” and also considering international and even sharia law.
    The gang of 9 has turned into a tyrannical dictatorship which the democratic/socialists have used to their advantage in intend to keep using. republicans seem fine with it so long as the ‘rulings’ follow what that want. Corruption is corruption no matter how much lipstick you put on the pig.
    Personally, I have zero respect for the supreme court, zero respect for the dept of injustice, and zero respect for the so-called dept of homeland insecurity. These agencies have become so corrupt they cannot be reformed, must be destroyed and replaced based on the original intent of the Constitution.
    Of course, that will never happen voluntarily….

    • Tyranny of the court is definitely a real thing in our country. As you said, regardless of the conservative or liberal slant of the court, there’s been many rulings in modern times by both that have included absurd legal stances based on foreign law and ancient customs that have no legal point in American law. For example in roe v wade, a justice drove home an argument about abortions were widely accepted in Ancient Greece, and since America is founded on many Greco/Roman traditions then it should be legal here. Now, that is downright wrong. Wether you’re a conservative or a liberal, pro or anti abortion, you should not want your judges basing our American laws on what happened in Ancient Greece. The Greeks were also pro child molestation and the Romans crucified people by the thousands. I don’t think that makes those things legally sane in America. We’re a sovereign nation which began in 1775. Damn Ancient Greece and Great Britain.

  14. Just recently the U.S. house of Representatives passed a universal gun registration bill that ALL civilian firearms must be registered. About 84 years ago another country did implement this piece of legislation
    when it’s leader announced “This year will go down in history.” “For the first time a civilized nation has full gun registration.” “Our streets will be safer, our police more efficient and the world will follow our lead into the future.” The leader was none other than Adolph Hitler and the year was 1935. We all know how well that worked out now don’t we?

    • Umm, no, let’s not jump the gun. The House passed a uniform back ground check bill. Although such a law could form the basis for a uniform gun registration law, under current law and this bill, the FBI disposes of the 4473s after performing its duties.

      • ” FBI disposes of the 4473s ”

        Well, it’s supposed to do that. From what we’ve been seeing at the FBI lately, I wouldn’t be too sure.

        • From my research, I can guarantee that the FBI defines “dispose of” as “hidden in the basement.”

        • Not entirely incorrect. The FBI doesn’t actually handle the 4473 as it’s an ATF form. They just run the check. After the check is done, they’re not supposed to retain anything.

          4473’s only go to the ATF after a dealer closes down. All their records are sent to the ATF, but even then, some 4473’s will never get there. Dealers are only required to keep them for 20 years. Their A&D books must still be turned in though, so the records are essentially still there.

  15. R.I. DemocRAT Sheldon Whitehouse (Weldon Shithouse as he’s known in R.I) is just a stooge for the Bloomburgs of this world who think they know what’s best for you. Corrupt elitist who’s about as smart as box of rocks has made (another) serious blunder threatening SCOTUS. Watch him cry like a baby when poor old RBG kicks off is a few and he realizes that Trump will get another conservative SCJ appointed that will be there for 30+ years

  16. It seems to me that this is nothing but another version of the Judicial Procedures Reform Bill of 1937 but in a different format.

    It would appear that the people who wrote this particular brief learned something from Wickard and the events surrounding that decision. They’re hoping the dice fall the same way in the next year or two and that they can get a similar outcome.

      • I’ve talked about this before, but here’s the Spark’s Notes version. (Yeah, it’s still long for a comment on TTAG. Read on or skip it. Whatever.)

        So Judicial Procedures Reform Bill of 1937 comes about as a proposal from FDR.

        The reason is because the SCOTUS has been ruling against portions of The New Deal package and FDR is pissed. Initially the government has some wins in court but then the feds have a losing streak capped by a hat trick when in 1935 SCOTUS rules against FDR in three cases Louisville Joint Stock Land Bank v. Radford, Humphrey’s Executor v. United States and Schechter Poultry Corp. v. United States all on the same day, May 27, 1935. Again, this is after other losses on railroad cases etc.

        A particular point of contention is the last case, Schechter Poultry Corp. v. United States because it guts the National Industrial Recovery Act of 1933 which is a huge part of The New Deal. That decision is based on… The Commerce Clause. (Also Separation of Powers, but the CC is what really matters here moving forward because the SCOTUS says that the CC doesn’t give these kind of powers to the feds.)

        Then the Agricultural Adjustment Act, another part of the New Deal, is struck down in United States v. Butler (1936) because of the way it imposed taxes on processors and then gave that money back to farmers and because not being an power enumerated to the Feds agriculture regulation is ruled to fall to the States. Again, that damn Commerce Clause doesn’t work for the feds.

        At this point New Deal supporters are angry.

        This leads to a hurried revamp of the law the creating the Agricultural Adjustment Act of 1938which has ND supporters nervous as a Farmer John pig because they just don’t think that the court will find any of this Constitutional. A solution needs to be found.

        Long story short, this is where the Judicial Procedures Reform Bill of 1937 gets floated. Public reception and the reception the proposal gets from the press is… lukewarm at best. Pretty quick public (and press) support for this idea is underwater according to polling and letters to CongressCritters stack up as nine against for every single letter in favor of the bill.

        So the idea goes before Congress and in the House it gets killed in committee. In the Senate a group of Republicans smarter than modern Republicans just STFU and watch with amusement as the Democrats fight each other over the bill. A bunch of wrangling ensues and eventually a bill passes and is signed by FDR but it doesn’t create a single new judgeship at the Federal level. If you care about the details Wikipedia has a surprisingly well written and detailed article on it.

        Anyway, so this idea is dead in the middle of 1937. SCOTUS is safe from the court packing scheme and business rolls on.

        Then along comes Wickard which challenges the Agricultural Adjustment Act of 1938. Mr. Wickard gets himself into trouble in the middle of 1941 and his case is taken by SCOTUS and decided in 1942. It was widely thought that the government would lose because as early as 1938 New Deal supporters thought that the 1938 AAA was probably not something the court would accept.

        But something odd happens here. The court suddenly does an about face. It kinda pulls a “Roberts on the ACA” and rules in favor of the government because…. of the Commerce Clause. The same clause it had repeatedly said didn’t grant this kind of power to the Feds, rulings on very similar grounds in some cases too.

        So what changed? Well, there’s pretty good evidence that a small event on 7 December, 1941 put the fear of God in the SCOTUS in terms of that Judicial Procedures Reform Bill of 1937 that was so unpopular back a few years before. The court recognized that people had rallied around the flag, and the POTUS after Pearl Harbor. FDR was suddenly enjoying some serious support, especially after his “Infamy Speech” on the 8th. So, they needed to give FDR a win. Since they were reversing themselves now they could do it again later right? And save the court in the process… so, they went fishing for a reason to give FDR a win, came up with one and we’ve been living with the expanded powers of the Commerce Clause ever since.

        So, IMHO:

        It stands to reason that certain modern politicians see current events as a way to similarly bully the SCOTUS. Kavanaugh, Trump, Impeachment, RUSSIA!, etc. By making these kind of threats now I think they figure they’re stuffing an ace up their sleeve for the future, just like the the JPRB of 1937 did for FDR. They’re also trying to do it on this particular NY case because it’s just the New Deal cases to them: fucking important.

        If Wickard had gone the other way the landscape of federal power in this country would be radically different. Look at what could happen in NYSRPA v. NYC. That could burn a lot of gun control laws and reasoning to the ground, and the Left knows it’s on somewhat shakey ground with the Commerce Clause these days, particularly in light of United States v. Lopez (1995), United States v. Morrison (2000).

        I’m not saying WILL, but it could, and that’s a risk the Democrats are not willing to take to the point that on this issue they feel they have nothing to lose. So, they’re trying to pull and FDR, particularly in light of the whole thing with RBG and this court being arguably more conservative than the Rehnquist Court, which itself was not super warm to this expansive view of the CC.

        As I’ve said before. A LOT of currently existing gun control (and other abhorrent laws) at the federal level rest on the Commerce Clause. Take that away, go back to a 1941 SCOTUS interpretation of that Clause and it’s a difference world where we’re not arguing about the 2A because there is zero ground to form these laws in the first place. And what’s better than winning a fight? Never having to bother with it in the first place.

        • Oh, and why do I say that the SCOTUS went fishing on Wickard to pull out a win for the POTUS?

          Because, 1) the government was appealing a previous loss based on SCOTUS precedent that was fairly recent and 2) the decided the case based on arguments that the government never made to the court.

        • Thanks!

          (It’s a bit scary how you have demonstrated some serious skills in presenting arguments. You would make a damn good lawyer. Consider being one, and take 2A ‘pro bono’ cases for those who need representation on the side…)

          I’m concerned the court won’t go full strict-scrutiny for us on the NY Pistol case, and we won’t be much better off than where we are now…

        • Kind of funny to say “Yeah, it’s still long for a comment on TTAG.” then later “Long story short…”
          Some comments are worth reading, regardless of length, especially if they inspire further research.

        • Geoff:

          There are a few ways I could see that case going, though to be entirely honest I haven’t followed it as closely as I have some cases in the past. I’m a bit busy trying to catch up from last year’s issues and it’s just not a priority of mine to court watch at the level I otherwise might.

          Suffice to say your worry is the polar opposite of one of the worries that Progressives have. Personally I think both sides are right to be somewhat worried. You never quite know which way the SCOTUS will jump. At this point all we know is that they’re feelin’ froggy (since they took the case and didn’t consider it moot).


          I am aware of the irony in saying that. However, that “long story short” quip stands in for what is essentially another post half the length of the original explaining who came up with the “court packing scheme”, how it was kicked around, what the logical grounding behind it was, the 1800’s laws dealing with it etc. I didn’t feel that such detail was necessary or probably something any reader would particularly want.

  17. With a Democratic President and House we will need to increase the number of justices to get a more fair and impartial ruling on all cases that come before it. Right now the Court is too partisan to have any support or confidence from the American people.

      • Yeah I like how back when there was a liberal majority the court was somehow non partisan and more fair. But now all the sudden conservatives are up by one (and barely at that), and it’s goddamn fuckin doomsday.

      • He desperately does, and because he thinks his side would win. In his magical leftist fantasy land, the entire federal power of a united suddenly turned liberal America will easily crush a couple thousand ignorant conservative hillbilly farmers with pitchforks. He thinks it’ll all be over by Christmas. He doesn’t know the first thing about war, history, logistics, or America for starters.

        • Or how to put one of his hundreds of handguns into condition two, from condition three. I’ve asked him a dozen times. He just posts pages of nonsense, hoping to distract away from the simple answer, which he does not know. In six months or so, he hasn’t yet managed to even look it up.
          With that kind of record, yeah, whatever fantasy world he exists in, it has to be better than his parents basement. Little wonder he spends all his time in unicorn land. The world is bound to be frightening, if one has never been out of the womb before.

        • If we win, Vlad might be hosed; nobody likes a traitor. On the other hand, conservatives and libertarians don’t really go for deadly purges, so he’ll probably just ride it out as a bitter, cowardly loser.

          If his socialist buddies win, he’s *really* hosed. They’ll take away everything he has and eventually, when they no longer need Quislings, they’ll tip his dead body into a ditch with the rest of their discarded fools. The worst possible scenario for his continued welfare is for him to get his wish.

    • When the boy turned 16, his grandparents sent a card with a check for $50.00 enclosed, (They did this every year in exchange for an agreement to never, ever bring the boy to their home for a visit). I attempted to explain compound interest to him and convinced him to go to the bank and open a savings account. With his account book in hand, he turned to me and demanded that I “loan” him $500.00 against his future interest earnings.

      I refused his request and tried to explain to him the folly of counting his chickens before the eggs hatched. He threw himself on the floor, right in the middle of the bank lobby, and rolled around thrashing and shrieking about how he hated scrambled eggs. The boy never could understand the distinction between planning for the future and fantasizing about the future.

  18. Trump should put 6 more conservatives on this year. Sen. Whitehouse would shit a kitten if he did that and I would hang a portrait of DJT on my wall.
    Because forget taxes, EO, even laws signed into being. It’s all about the SCOTUS because that’s the gift that keeps giving. In a ruling the country can be flipped in a different direction overnight and stay that way for generations. Rowe vs Wade was a teachable moment where 24 states had to accept murdering unborn children as a new right.
    And it only got worse from there. Liberals are giddy at their victories and somehow shocked when they lose. Read Men in Black by Mark Levin to see how bas it can get and will get if they get a huge li real majority.

    When RBG checks out the best thing Donnie can do is drop the name and have Mitch vote on it a week later. Don’t give them any time to attack. Elections have consequences so it’s tough shit.

    • ” the best thing Donnie can do is drop the name and have Mitch vote on it a week later ”

      The name has already been dropped. It’s Amy Barrrett. She’s 43, Catholic, mother of 5, strict constructionalist. She’s most likely the nominee to replace RBG when the time comes.

      It would be one hell of a confirmation hearing. The Democrats would have a hard time trying to lynch her the way they did Kavanaugh without coming across as anti-woman and anti-Catholic. Rock and a hard place. Bring lots of popcorn and settle in for the show.

      • “The Democrats would have a hard time trying to lynch her the way they did Kavanaugh..”

        Yes, they will try. They tried it with Thomas, who stated in an open hearing that it was “A high-tech lynching”, quite the thing to say to a Black man…

  19. The Democrats are terrified. Judge Ginsburg is 86 years old. She just had a fourth radiation treatment. She has three different cancers. She has fallen asleep during court hearings. Hillary losing the election has terrified her.

    I fully expect violence to erupt across the country if President Trump gets to replace her.

    • Violence is going to erupt, regardless of whether Trump gets another term, or Ruthie gets replaced by the ghost of Sam Adams.

      It’s not if, it’s when. And when arrives sometime in the next 1 to 5 years. Bet your life, your fortune, and your sacred honor on it. And be ready for it.

  20. Ole Sheldon Chithouse threating the court and he finds himself without a current bar license,hope they throw the book at him

    • I want her to enjoy what is left of her life at home where she belongs. The fact that she needed treatment for cancer again is enough to retire her.

    • You might very well get it. RBG has pancreatic cancer. That’s what took down my aunt and my brother. The final curtain fell about 4 months after the diagnosis. This is RBGs second go-round with it. It’s not looking good (for RBG, anyway).

        • It seems to actually move faster the younger and stronger the victim is. It’s a terrible way to go.

          I hope RBG gets her house in order and exits gracefully, surrounded by family and friends outside the public eye…but I don’t think she will. She’ll cling to her position to the last breath and it’ll be very public and very ugly and painful for everyone.

        • As ugly and painful as possible? So… a classical Democrat life and death all the way then? 🙂

  21. Watched Whitehouse make an ass of himself during the Kavanaugh hearings. Struck me as one of the stupidest creatures I’ve ever seen.

  22. Those animals who refuse to believe my blatant lies about being raped are the worst. I work so hard to make up my story, and no one believes me.

  23. “It accused the five justices who were appointed by Republican presidents … of pursuing a “political project” and being in league with the National Rifle Association and other pro-gun groups seeking to radically expand gun owners’ protections provided by the Second Amendment.”

    This is the most frustrating part to me: The premise of their threat is absurd. Heller (and then McDonald) were DECADES overdue. The gun-grabbers’ propaganda states that Heller – for the first time in US history – “created” an individual right to own a firearm.

    Of course that’s hogwash. What really happened was that over the prior decades, laws that were ALWAYS unconstitutional grew and grew, until DC’s complete ban on keeping a firearm in one’s home was the straw that broke the camel’s back, forcing the case that – as we all know – with FOUR justices voting to almost literally DELETE the Second Amendment, came WAY too close to being an utter disaster.

    Moral of the story, when fundamental rights have been taken, don’t wait so long before we demand them back.

  24. Well, after President Obama’s working the refs like a soccar player on the ACA case, these lesser martinets are just following his lead. “Fundamentally transform” the country, indeed.

    Trump’s presidency, and his manners in it are President Obama’s legacy as well. Using the bully pulpit to — er — bully, with smears and snark is the new normal he created in a scant decade: There are those…”

    Indeed, A W B II, Electric Boogaloo never got traction, under the prior administration demonstrating that these jam-it-through pre-fab reactions can be stopped. Every Federal emergency gun grab since has foundered. How that must gall when we operate still under the eternally renewed Patriot Act, and war still under the one and done eternal A U M F.

    And some call his a failed presidency.

  25. All this political stuff – presidents and senators and courts and legal briefs – are just a smoke screen to get us to forget our natural rights. We have the right to keep and bear arms – ALL arms – regardless of what nine other humans in black robes say, regardless of what hundreds of suited humans in a domed building in D.C. say, and regardless of how many cops are willing to kill us for exercising our rights. We should never have started to care about what they think. America lost its live-free-or-die attitude, and now we’re paying for it.

  26. Odds are Dems will hold the House, and take the white house. Looks good for them for two senate seats eg Colorado. If they get lucky they will taken four senate seats. If not they will get them in 2022, midway through President warren or Biden , they have huge advantage in 2022 senate race, pack the court with two to four more scotus seats and game over by reversal of Heller for Heller and second amendment as an individual right.

    They are signaling on the second amendment specifically since this is the most partisan issue in America today.

  27. The senators were Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York.

    And not 5 brain cells among them that they could rub together. Peers of sleepy stupid uncle Joe Biden.

    Our side just needs the cash to pay them more than their current bosses at

  28. Lemme see if I’ve got this right….

    The NRA supports the constitutional rights that the SCOTUS is supposed to be defending, so the NRA’s support of justices who defend those rights is purely partisan politics?. So these senators, one of who is running for president, who have sworn to uphold the constitution are saying that defending the constitution is a partisan activity?

    Shouldn’t they all lose their jobs immediately? At the very least Gillibrand publicly declared herself unfit for the presidency.


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