Senator Sheldon Whitehouse, (D. Moronville)
The following is taken from his X feed. I’ve manually unrolled it into a single quote.
So what’s up? Here’s my take:
One of the internal traditions of the Court is “collegiality.” First, you’re there for life, so you may as well get along.
Second, issues come and issues go, and an ally in one case is an opponent in another. Third, the Court thinks of itself as a stately institution, hence decorum matters.
All of which is well and good — in ordinary times. It’s akin to members of Congress calling each other “the distinguished gentleman” or the “distinguished gentlelady,” to maintain decorum and avoid events like the caning of Senator Sumner.
But what if we’re not in ordinary times?
What if we are in a time when a billionaire-funded scheme has spent decades trying to pack the Court with billionaire-agreeable justices, so as to “capture” the Court in the sense of “regulatory capture” or “agency capture” — and what if the billionaires have finally succeeded?
What if we are in a time when a billionaires’ gifts program has given certain justices ‘lifestyles of the rich and famous’ and they have reciprocated with favorable rulings?
And sheltered behind the weakest ethics review of any court in the land whenever the gifts program is challenged?
What if we are in a time when favored parties and litigants win victories with statistically astounding regularity? And justices are feted at organizational fund-raising dinners where those statistically-astounding winners convene?
What if we are in a time when novel judicial doctrines, reverse-engineered for happy results for certain special interests, are grown and fertilized in special-interest-funded legal hothouses and then make their way through the Court to become the law of the land?
What if flotillas of secretly-funded amici curiae appear before the Court and sing in conspicuous harmony, and win with conspicuous frequency, and the Court makes little to no effort to enforce its own rules about amicus disclosure about their financing and coordination?
These are all unseemly things to discuss, indecorous, and not at all “collegial.” But if they are true, should they not be discussed? How much mischief happening in plain view in the courthouse should a justice ignore in the interest of “collegiality”?
Justice Jackson has begun looking at patterns, and noticing what types of parties tend to win, and which tend to lose. She has noticed procedural discrepancies.
She has begun looking at interests, and motives, and connections. She’s begun to point behind the curtain at what “collegiality” obscures.
What if a colleague uses your “collegiality” as a strategic tactic, like a pick on a basketball court, deliberately for advantage? Surely, the coin of collegiality has a flip-side obligation to behave in such a way that your colleague’s collegiality is never abused.
KBJ comes from the district and circuit courts, where many judges are concerned about the mischief surrounding the Supreme Court. It’s happening in plain view. Judges are not idiots.
Their discretion, decorum and “collegiality” have limits — and should have limits. Truth and candor are also judicial virtues.
Jackson may have come to the Court sharing those obvious concerns. If so, she had a running start on noticing the mischief. She may choose not to look at the Men in Black Neuralyzer and disappear the awareness she brought of the mischief at the Court. Nor should she.
If it would be unseemly for a gentleman or gentlelady to call out a colleague for having their hand, or their friends’ hands, in the gentleman’s or gentlelady’s pocket, is it not worse to have put that hand in the pocket in the first place?
To rely on another’s “collegiality” to hide one’s own mischief isn’t fair play.
If the Emperor has no clothes, and chooses to walk down the Main Street of the city, it may very well be indecorous to call him out as buck naked. But the real wrong in that scenario is in the naked parade down Main Street, not in the call that points the nakedness out.
The far right is undeniably twitchy, because the participants know the Scheme better than anyone. The points Jackson has made so far about patterns and preferences and predisposition likely only touch the surface of a far deeper problem.
The Schemers have much more to fear, and they know it.
As best I can tell, KBJ is being true to herself, true to her oath, and true to her native land.
That’s my take, anyway.
(P.S. Harlan was alone in dissent, too, and that aged well.)
I read it; you have too. Sorry for that.
The senator is correct; there is a tradition of collegiality in the courts and in the congress. That is why calling a liar a liar gets you in trouble in the congress. But lying does not.
The answer to his “What if…” is itself a question, “What if you were true to the Constitution?”
Ah yes, the bogeyman argument. “Dark money” is money that Republicans get, the money Democrats ‘s get from foreigners, pensioners donating $20k per year, that’s just “the people supporting Democrats”.
“…favored parties…win victories with astounding regularity?” How about winning because that’s what the Constitution says?
“novel judicial doctrines”? Like, “Obey the Constitution as it was written and amended?” Or maybe you mean all the court cases where the courts rule that firearms aren’t arms under the Second Amendment?
Maybe those amici curiae have always supported the Constitution. The secret funding is generally properly reported and is none of your business.
How do you tell if the plain text of the Second Amendment is implicated? The Brady Bunch writes an amici curiae brief. Or is it the Everytown now?
“But if they are true?” What if it is just you slandering people? What if it is you hiding the fact that your team loses on a level playing field? What if it is just you being stupid?
I don’t believe for one moment that Justice Jackson is looking for patterns or noticing the parties that win, I think her agenda is driving her drivil.
She might be looking at “interests, motives, and connections.” What she is not looking at is the law. What she is not following is the Constitution.
Where was your concern for mischief when the liberals found every liberal cause “constitutional”? The mischief you are referring to is veiled “collegiality” regarding Thomas. The Justice that saw the rules change had it brought to his attention and reported it.
Thomas is easily more moral and honest than you have ever been.
Truth and candor are judicial values. Jackson is a DEI hire, and it shows. There is truth and candor for you.
Ah, Sheldon, put on some clothes. You are neither the emperor nor pleasant to look at.
The far left has used lawfare for decades, and now they are losing that weapon.
I do agree with you; the schemers have much more to fear, and you know it. You are a schemer.
