In Latest Attack on the Court, Senator Whitehouse Goes After Amicus Briefs

On Tuesday, the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights held a hearing entitled, "Supreme Court Fact-Finding and the Distortion of American Democracy." The two witnesses called by the Republican members of the Committee were Indiana Solicitor General Thomas Fisher and the Cato Institute's Ilya Shapiro. As Shapiro pointed out during the hearing and in his prepared remarks, the title of the hearing itself is overblown:

I actually think that the hearing title is a bit loaded: first, because the Supreme Court doesn’t generally engage in fact-finding in the way trial courts do, but rather applies the law to novel facts, as any appellate court is supposed to; and second, because however much one thinks American democracy is “distorted,” the Supreme Court, a reactive institution, is hardly at fault. Indeed, the court is the most respected government institution other than police and the military, so hand-wringing over its role in governance—or broader questioning of its legitimacy—principally arises when the justices rule in ways that disagree with progressive orthodoxy or, more broadly, when progressives are frustrated that there’s a major institution they don’t control. The chairman himself filed a brief in last year’s Second Amendment case admonishing the Court to “heal itself before the public demands it be restructured in order to reduce the influence of politics.”

Amicus briefs are a legitimate tool for the Court to use and are submitted by groups on all sides of the ideological spectrum.

It's hard to take Senate Democrats seriously when they only take up the Court fact-finding issue when they are concerned that the Court isn't under their control. This hearing is just Senator Whitehouse's latest attempt to delegitimatize an independent Supreme Court.

The hearing can be viewed in its entirety here.