Here’s What Fox News Won’t Tell You About NYSRPA v. City of New York
By: Sheldon Whitehouse
Tags: Supreme Court, Judiciary, Justice

Here’s What Fox News Won’t Tell You About NYSRPA v. City of New York

Our brief reflects Americans’ growing frustration with a Court that, increasingly, seems more beholden to partisan donor interests than to the rule of law.

Photo by Claire Anderson on Unsplash

This is the brief the far right is freaking out about. That is usually a good sign. Anything that might unhinge their decades-long campaign to capture the Court unhinges them as well.

The last time they got this freaked out was when I suggested that DOJ should investigate whether the fossil fuel industry was lying about climate change as culpably as the tobacco industry lied about the dangers of its product (DOJ won that tobacco case, btw).

Here’s what Fox News won’t tell you about this case or my brief, which lays out the practical, political, and historical context of the case.

The NRA, the Federalist Society, and their dark money backers spent millions to keep Merrick Garland off the Supreme Court. They spent millions more to confirm Gorsuch and Kavanaugh to “break the tie” in second amendment cases. Those are their words.

Then, like magic, the Supreme Court took its first gun case in a decade, a challenge to New York gun safety regulations. But New York repealed its law, giving the NRA plaintiffs everything they supposedly wanted. The case should have ended there — courts don’t resolve hypothetical disputes. Nevertheless, the NRA pressed on, telling the Court it must continue its Second Amendment “project,” and it mobilized an industrialized armada of anonymously funded vectors of influence targeting the Court.

As our brief details, NRA presumes the Supreme Court is a willing partner in its political “project.” Sadly, the Court is giving them every indication they’re right. One clear indication: The Roberts Court’s regrettable record of partisan, 5–4 decisions advancing Republican donor interests. Very often, these decisions hand victories to anonymously funded litigants and amici, or “friends of the court,” whose true identities and funding sources are impossible to ascertain.

A parallel hazard is the whole armada of these “amici” and strategic litigants who bring faux litigation before the Court to push their agenda. Very likely, the funders of these groups are the same funders behind the Federalist Society’s effort to select judges, and the Judicial Crisis Network’s political campaigns for them. That’s not a pretty picture.

Republicans have been working for decades to create a Court that will reliably rule for their partisan policy agenda. And increasingly it looks like that’s exactly what they’ve got. That is bad for the country, and bad for the Court.

Our brief reflects Americans’ growing frustration with a Court that, increasingly, seems more beholden to partisan donor interests than to the rule of law. That suggestion has sparked a wave of vitriolic reaction from Fox News and the far right, likely spurred by those very same donor interests. It’s telling that Republicans have interpreted a sincere warning about the Court’s rapidly declining public credibility as a nefarious threat to seize power. This reveals a lot about how Republicans fundamentally view the Court as a political prize, further evidenced by the extraordinary measures they’ve taken to seize it.

We think this fight over the independence of our courts is one well worth having, and we hope you will join us in it.