Anatomy of a Right-Wing Outrage Cycle
Last month, during the doldrums of the Senate’s August recess, several colleagues and I filed a brief in the Supreme Court that set off a right-wing freak-out of the highest order. After dozens of op-eds and hundreds of tweets expressing calculated faux outrage, the right’s collective conniption came to a head two weeks ago, when all 53 of my Republican Senate colleagues sent a remarkable letter to the Supreme Court telling it not to be “cowed” by our brief. A closer examination of the anatomy of this Republican outrage cycle is instructive.
We filed our brief in New York State Rifle and Pistol Association v. the City of New York, the first Second Amendment case the Court has heard in a decade. Our brief documented how this case came on the heels of a multi-million dollar campaign by the National Rifle Association (NRA) to support the nominations of Justices Gorsuch and Kavanaugh and politically punish those who opposed them. It also documents how the NRA’s massive spending is just one arm of a sustained, well-funded Republican effort to put judges on the bench to vote reliably in favor of Republican Party donor interests, like expanding the Second Amendment for the gun lobby.
Hundreds of millions of dollars in anonymous political spending has been effective. As the brief points out, there has been during Chief Justice Roberts’s tenure a staggering series of 73 5–4 partisan decisions delivering big wins for big Republican donor interests. That’s a pattern, and a telling one. And it’s not just the pattern of outcomes that is telling.
More often than not in those cases, as our brief documents in detail, the Court’s so-called “conservative” majority has bent over backward to achieve those outcomes, trampling long-held “conservative” judicial principles including those designed to keep the court in its narrow lane of deciding actual cases and controversies.
In this case, New York has repealed the challenged regulation. So that means the case is over, right? Apparently not. The gun lobby’s lawyers want the Court to pursue the Second Amendment “project” (their word, not mine) started in the Roberts Court’s two 5–4 gun decisions, Heller and McDonald.
The federal court system I practiced in didn’t engage in “projects.” It decided cases, as the Constitution requires, where there was an injury that was “concrete, particularized and actual or imminent.” An activist Court looking to make law — a Court with a “project” — would issue a decision on a regulation that no longer exists.
The right wing’s reaction to our brief is revealing. Rather than respond to our facts and arguments, Fox News and other outlets seized on a line in our brief quoting a recent poll that showed a majority of Americans now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” “Restructured” was a word in the poll, which we accurately quoted. Within days, Fox News, Republican elected officials, and right-wing opinion columnists were on message accusing us of threatening to pack the court and deeming us a menace to judicial independence; and for days the chatter about court packing continued. (Rich, coming from the Court-packing party — remember Judge Garland?)
By week’s end, the Wall Street Journal’s Editorial Board — the favored mouthpiece for the right-wing donor interests seeking to capture the judiciary — entered the fray, charging us with “rank demagoguery” while bluntly instructing the justices that “if they now drop the gun case, they will appear to be bending under this assault.” Because the “court-packing brief” was an invention of the faux-outrage machine, it was easy to track the flow of outrage from one outlet to the next, like a virus replicating itself. (The Journal followed the talking points a bit too closely, and had to remove two sentences from its editorial after publication because of similarities with another opinion piece.)
Now, as if on cue, all 53 Senate Republicans sent a striking letter to the Supreme Court, calling on it not to be “cowed by the threats of opportunistic politicians.” “[J]udicial independence is under assault,” they write, with a straight face, and they say they “will brook no threats to this fundamental precept of our constitutional structure.” That’s from Mitch McConnell, the man who stole a Supreme Court seat and spent the last two years packing the judiciary with partisan extremists in an increasingly successful effort to make America’s courts just another cog in the Republican political machine.
Of course, our brief did not call for any grand overhaul of its structure. The brief made no hypothesis as to what the quoted poll language could mean. I have never called for changing the number of Justices on the Court (so-called Court-packing), and the brief did not either. For the record, I’ve called for these very reasonable reforms, none of which were mentioned anywhere in the great collective right-wing freak-out:
1. Transparency — by all groups, rightward or leftward leaning — so the justices and the public have a better idea of who is lobbying the court with amicus briefs and spending millions of dollars on the confirmations process.
2. An ethics code for the Supreme Court (it has none); and clearer reporting of gifts, travel and hospitality provided to the justices. And
3. For Justices to keep to their word: to judge by the principles they espouse at their confirmation hearings — respect for precedent, judicial modesty, deference to Congress and finders of fact — but seem to forget after being confirmed with life tenure.
The right-wing freak-out is heavy on gaslighting and projection, but weak on substance. Its copycat talking points about court packing and judicial independence spread almost verbatim across the far-right “news” outlets. None of the outlets addressed the undeniable pattern of 73 5–4 partisan decisions the Roberts Five have produced helping big Republican donor interests, nor the trail of trampled “conservative” judicial principles those decisions left in their wake. The faux outrage machine dodged the problem of hundreds of millions of dollars of dark money now infiltrated into the selection of justices and into political campaigns for their confirmation. It dodged the dark money behind strategic litigation entities and front-group amicus brief writers now surrounding the Court. And of course none mentioned the long and openly declared history of Republican efforts to capture the Court and bend it to the interests of big donors. They made up their talking point, and they ran with it.
Here’s a timeline of the freak-out:
· August 12: Brief is announced: “SENATORS CALL OUT PARTISAN ‘PROJECT’ TO TIP SUPREME COURT IN FAVOR OF NRA-BACKED PLAINTIFFS”
· August 12: Conservative website Daily Caller publishes an article from its “Supreme Court Correspondent” that frames the brief in terms of court packing.
· August 13: The Washington Times — an influential publication on the right — publishes an article about the brief that attempts to connect the “restructured” polling language quoted in the brief to the 2020 campaign and to discussions of court packing.
· August 14: A Republican senator responds to the brief on Twitter, linking to the August 13 Fox News article and asserting that we were “talking about expanding the Supreme Court.”
· August 15: David French at National Review publishes a criticism of the brief along those talking points.
· August 15: The Republican senator responds with a link to the August 14 Fox News article and the message: “Packing the Supreme Court… Bad idea.”
· August 15: The Wall Street Journal editorial board publishes an opinion piece attacking the brief. Then came this update: “Editor’s note: Two sentences in an earlier version of this editorial were similar to those in a column by David French in National Review. We believe this was inadvertent but have removed the sentences and apologize for the similarity.” (Oops — perhaps copying same talking points verbatim?)
· August 16: The story jumps to major mainstream outlets with a Washington Post summary of the brief and the response to it.
· August 16–28: Conservative outlets and commenters continue to post multiple opinion pieces and articles attacking the brief and asserting it is for Court-packing and against judicial independence.
· August 29: GOP senators write letter to the SCOTUS Clerk calling the brief an attack on the independence of the Court and restating the Court-packing canard.
I have seen this kind of right-wing freak-out before. Senate Democrats called out Koch-funded climate denial groups in 2016, accusing 22 organizations of being coordinated fossil-fuel front groups. All 22 organizations responded in a single letter on mutual letterhead, to deny that they were coordinated front groups! I am not making that up. (They were also bound together by at least $92 million from dark-money climate denial funders like the Koch family, Donors Trust, Donors Capital, ExxonMobil and the State Policy Network, which was in turn funded by Donors Trust, Donors Capital, and Koch family foundations.) Over-reacting when a hot button is pushed, even to the point of helping prove our point, is a freak-out signal.
Another freak-out: in 2016, I asked Attorney General Loretta Lynch about a civil RICO action against fossil fuel companies along the lines of a case that had been successful against Big Tobacco. That simple question, late in an uneventful Judiciary Committee hearing, received no legitimate news coverage — but it triggered a cascade of faux outrage. After a few days to crank up the machine, about fifty pieces flooded out from conservative commentators and “news” outlets, including the ever-serviceable Wall Street Journal editorial page. The stuff they made up about what I had said, and the fact they were all saying the same false things (like the court-packing canard fabricated for the freak-out over our brief) signaled the common scheme, and made it easy to track the spread of the faux-outrage virus. When I wrote an editorial on the same subject months later, it triggered a virtual repeat performance of another fifty columns and editorials — same faux outrage, same common falsehoods, often the same language and analogies. Push the right button, and the machine spews out the product.
Coordinated partisan funder groups sometimes even tip their hand when it comes to the Court. One dark money group, the Koch-linked DonorsTrust, funded twelve different organizations that lodged amicus briefs fighting public sector unions’ right to organize in Janus v. AFSCME. The Court delivered on cue, throwing out forty years of settled law.
Our sincere concern in the brief we filed is that the Court has been captured by big Republican donor interests, and that in its decisions that benefit those interests the Court is imperiling its own standing. If our concerns about capture of the Court were well founded, and if big donor interests that had captured the Court felt their prize was threatened, the right-wing freak-out we have seen is exactly the reaction you would expect: no response to our sincere and stated concerns; instead an invented outrage trigger and a flood of near-identical screeds, all coming through the right-wing media apparatus. We get it. They would prefer us to shut up about their capture of the Court so they can win 73 more of those partisan 5–4 decisions. We will not. We revere the Court to much to ignore what we see in plain sight.