Sen. Sheldon Whitehouse, D-R.I., has declared war on the judicial branch.

Among his many complaints, he has insinuated without proof that judicial opinions he disagrees with are influenced by amicus—“friend of court”—briefs entangled in webs of dark money. To combat this supposed problem, he has pushed for onerous disclosure requirements that would essentially reveal everyone (and every dollar) an amicus associates with.

It’s all part of his broader efforts to hurt his perceived political enemies and undermine public confidence in the courts now that they no longer reliably deliver politically palatable results for him and his left-leaning constituents. 

At first, he and Rep. Hank Johnson, D-Ga., introduced the AMICUS Act, a partisan bill that would impose onerous donor disclosure requirements on anyone who dares to file a friend-of-court brief. Given the blatant politics at play, Congress rightfully declined to move the bill forward.

When Whitehouse and Johnson couldn’t get the AMICUS Act passed through Congress, they instead pressured the Supreme Court and the Judicial Conference of the United States to do their dirty work for them and adopt via a rule change many of the bill’s most problematic provisions.

Sadly, the Judicial Conference—the federal judiciary’s chief policy-making body—has largely acquiesced to their political ploy. Beginning in late 2020, the Conference’s Advisory Committee on Appellate Rules began designing amendments to the Federal Rules of Appellate Procedure using the AMICUS Act as a starting point for discussion and a template for the proposed rule revisions.

As we explained in a Legal Memorandum and in testimony last week before the Judicial Conference itself, the onerous donor disclosure rules being proposed are a politically motivated solution in search of problem.

To begin with, the Advisory Committee struggled for three years to articulate why it was even considering changes to the existing rules. In the end, all anyone could agree on was that the endeavor began with Whitehouse and Johnson.

Not only that, but the proposed changes would also inject partisan identity politics into the judiciary. The existing rules governing amicus briefs seek to prevent parties in a case from circumventing limits on the lengths of their own briefs. But the new proposed rules aim at something entirely different: disclosing who an amicus is associated with and who might therefore be influencing an amicus brief.

That’s odd. Judges are not supposed to treat amicus briefs like lobbyists, barometers of public opinion, or indicia of where their friends stand on a given issue. They are supposed to decide cases based on what the law and facts require.

But the Advisory Committee rejected that idea. It now claims that “the identity of the amicus does matter, at least in some cases, to some judges.”

Let that sink in.

The proposed rules greenlight judges caring more about who is making an argument than the merits of the argument itself.  

And more troublingly, the proposed rules likely flout the First Amendment. As Justice Clarence Thomas has explained, the “text and history of the [First Amendment’s] Assembly Clause suggest that the right to assemble includes the right to associate anonymously.” And Supreme Court precedent has long disfavored compelled donor disclosure regimes recognizing the chilling effect that such disclosures can have.

As one group of Republican senators warned, it “will be a sorry sight to see the judiciary haled into its own courts for violating one of our most fundamental rights, but it will be necessary.”

So, what to do?

Thankfully, groups and individuals from across the political spectrum have rallied to defeat the proposed rules, filing comments that collectively reject the entire scheme. The Judicial Conference should listen to these varied voices, reject Whitehouse’s and Johnson’s effort, and extricate itself from this political quagmire as quickly as possible.

That may be easier said than done, though. As we noted in our memorandum:

At the end of the day, Whitehouse and Johnson have placed themselves in a win-win position politically while placing the Judicial Conference in a lose-lose situation. If the proposed disclosure rule changes are adopted, Whitehouse and Johnson can declare political victory. If not, Whitehouse and Johnson can yet again rail against what they portray as a corrupt cabal of federal judges. Similarly, if the proposed rule changes are adopted, the Judicial Conference will have signed off on a constitutionally problematic solution to a nonexistent problem and needlessly injected the federal judiciary into partisan politics.

Sadly, this is not the first time that the Judicial Conference has waded into partisan, constitutionally questionable territory. It has previously promoted problematic diversity, equity, and inclusion initiatives that are hard to square with the Supreme Court’s recent decision striking down racial preference plans and reaffirming what should be the non-controversial idea that everyone should be treated the same regardless of race.

If the Judicial Conference proceeds with these problematic rule changes, Congress should exercise its authority to reject them. And Congress should also take a hard look at structure, functions, and policy output of the Judicial Conference and the Administrative Office of U.S. Courts.

After all, what does it say about the state of the federal judiciary if its chief policy-making body and the administrative body responsible for training judges and their staff put out policies that defy the Supreme Court’s own precedents—and, more importantly, the Constitution itself?

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