Briefs filed by Attorney General Kamala Harris before the Supreme Court

Recently, a number of people on the right have endorsed Vice President Harris as the only way to save democracy. Similarly, David French has said that he is voting for Harris “to try to save conservatism.” French’s essay does not mention Senator Schumer’s nuclear bill, which would effectively overturn a decision by law and strip the Supreme Court of its jurisdiction to review that law. French had asked Justice Gorsuch about “reforming” the Supreme Court in an interview, but the question does not seem to have moved French. I suppose the only way to save democracy is to destroy the independence of the Supreme Court.

Perhaps if French came out and said we should elect Harris but keep Congress in Republican hands, that would prevent Supreme Court “reform” for at least a few years. But an endorsement of Harris, without an opinion on the state of Congress, would only ensure that the filibuster will be destroyed and that court boundaries and/or consolidation will be adopted. The American Bar Association has recently endorsed a series of “democratic” reforms, but as far as I can tell, it has been silent on court boundaries. As Justice Thomas often says, we will come to regret having hamstrung the last independent branch of government.

By the way, Harris spent about six years as California’s attorney general before becoming a senator. By my count, she authored about 50 briefs before the Supreme Court—a mix of certificate briefs, merit briefs, and amicus briefs. It’s rare for a presidential candidate to have such a detailed record on constitutional law. I think it’s helpful to look through those briefs to get a sense of how a President Harris would view the Constitution and the Court.

2016

• Joined Blue State’s amicus brief in Whole Woman’s Health v. Cole (abortion)
• Led the Blue State’s amicus curiae brief in Zubik v. Burwell (contraceptive mandate)
• Led the Blue State’s amicus curiae brief in Murr v. State of Wisconsin (Expropriation Clause)
• Joined Blue State’s amicus curiae brief in Czyzewski v. Jevic Holding Corp. (Bankruptcy)

2015

• Joined Blue State’s amicus curiae brief in Arizona State Legislature v. Arizona Independent Redistricting Commission (redistricting)
• Joined the Blue States amicus brief in King v. Burwell (ACA “pure applesauce” and “jiggery-pokery”).
• Brief on the Merits in Davis v. Ayala (Habeas Corpus)
• Joined Blue State’s amicus brief in Michigan v. Environmental Protection Agency (Clean Air Act)
• Joined Blue States’ amicus brief in Obergefell v. Hodges (same-sex marriage)
• Brief on the Merits in Friedrichs v. California Teachers Association (Union Dues)
• Joined Blue States’ amicus brief in Evenwell v. Abbott (redistricting)
• Solo amicus curiae brief in Fisher v. University of Texas (affirmative action)
• Joined Blue States’ amicus brief in United States v. Texas (DAPA)

2014

• Joined Blue States’ amicus brief in Utility Air Regulatory Group v. Environmental Protection Agency (Clean Air Act)
• Led amicus brief for Blue State in Sebelius v. Hobby Lobby Stores, Inc. (contraceptive mandate)
• Brief on the Merits in Riley v. State of California (Search of Cell Phone)
• Amicus Curiae Brief in Armstrong v. Exceptional Child Center, Inc. (Medicaid Private Cause of Action)
• Joint Amicus Brief from Red and Blue States in Ohio v. Clark (Confrontation Clause)
• Led the amicus brief for red and blue states in City of Los Angeles v. Patel (warrantless search)
• Joined Blue States Amicus Brief in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (Fair Housing Act and Disparate Impact)

2013

• Led the amicus brief for red and blue states in Maryland v. King (DNA testing)
• Joined (primarily) the Blue States amicus brief in Federal Trade Commission v. Watson Pharmaceuticals, Inc (patents)
• Joined Blue State’s amicus brief in Shelby County, Alabama v. Holder (Voting Rights Act)
• Brief on the Merits in Hollingsworth v. Perry (Same-Sex Marriage)
• Joined the Blue States amicus brief in United States v. Windsor (Defense of Marriage Act)
• Led the Blue State’s amicus curiae brief in American Trucking Associations, Inc. v. City of Los Angeles (preemption)
• Joined Blue States’ amicus brief in Adoptive Couple v. Baby Girl (ICWA)
• Led amicus brief for (mostly) blue states in Kansas v. Cheever (self-incrimination)
• Joint Amicus Brief from Red and Blue States in Burt v. Titlow (Ineffective Assistance of Counsel)
• Joint Amicus Brief from Red and Blue States in Mississippi v. AU Optronics Corp. (Parens Patriae)
• Led the amicus brief for Blue States in Schuette v. Coalition for the Defense of Affirmative Action, Integration, and Immigrant Rights and the Fight for Equality by Any Means Necessary (state constitutional amendment to ban affirmative action)
• Led the Blue States amicus brief in Northwest, Inc. v. Ginsberg (ADA)
• Brief on the Merits in Brown v. Plata (Prison Overcrowding)
• Brief on the Merits in Fernandez v. California (Warrantless Search)
• Joined Blue States amicus brief in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. (housing discrimination)
• Joined Blue States Amicus Brief in McCullen v. Coakley (Abortion Buffer Zone)
• Brief on the Merits in Navarette v. California (Vehicle Search)
• Led the amicus brief for Blue States in Harris v. Quinn (mandatory union dues)

2012

• Joined Blue States amicus in HHS v. Florida (constitutionality of individual mandate)
• Led the Blue States amicus curiae brief in NFIB v. Sebelius (severability of individual mandate)
• Joined Blue States Amicus in Magner v. Gallagher (Fair Housing Act and Disparate Impact)
• Joint Amicus Brief of Blue States in Arizona v. United States of America (Immigration, SB 1070)
• Brief on the Merits in Johnson v. Williams (Federal Habeas Corpus)
• Sole Amicus in Fisher v. University of Texas at Austin (Affirmative Action)
• Joined Blue States’ amicus brief in Federal Trade Commission v. Phoebe Putney Health System, Inc. (Eleventh Amendment)
• Led the amicus curiae brief (primarily) for the Blue States in Koontz v. St. Johns River Water Management District (extortions and monetary payments)

2011

• Led the amicus brief for blue and red states in Bullcoming v. New Mexico (confrontation clause)
• Joint Amicus Brief from Blue and Red States in Davis v. United States (Exclusionary Rule)
• Joint Amicus Brief from Blue and Red States in PLIVA, Inc. v. Mensing (Drug Labeling)
• Joined Blue States’ amicus brief in American Electric Power Company Inc. v. State of Connecticut (Clean Air Act)
• Brief on the Merits in Douglas v. Independent Living Center of Southern California, Inc. (Medicaid Cause of Action)
• Memorandum on the Merits in Martel v. Clair (Ineffective Assistance in a Capital Habeas Corpus Case)
• Joined Blue States amicus brief in First American Financial Corporation v. Edwards (case or controversy requirement)
• Joint Amicus Brief from Blue and Red States in Williams v. Illinois (Confrontation Clause)
• Joint Amicus Brief of Blue and Red States in PPL Montana, LLC v. State of Montana (Navigable Waters)
• Joined Blue States’ amicus brief in Freeman v. Quicken Loans, Inc. (RESPA)

(I may have made a few mistakes here and there, but I think my list is pretty much complete.)

To summarize, Harris filed a brief in favor of access to abortion (Overall Women’s Health), in opposition to pro-life protesters at clinics (McCullen v. Coakley), in favor of compulsory contraception for private employers (Leisure lobby) and non-profit religious organizations (Zubik/Little Sisters of the Poor), opposed immigration cases involving Arizona and Texas, and favored mandatory union dues payments (Harris And Friedrich), opposed the status of intervener in the case of proposition 8 (Hollingsworth), was in favor of a constitutional right to same-sex marriage (Obergefell And Windsor), opposed both challenges to the Affordable Care Act (NFIB And King), favored a broad reading of the Clean Air Act (Michigan And AEP), supported affirmative action policies (Fisherman And Schuette), has promoted widespread application of disparate impact prosecutions (Inclusive Communities, Mount Holly, And Magnify) and took over the obsolete coverage formulas of the Voting Rights Act (Shelby County). I haven’t read her arguments before the Ninth Circuit and the California courts, so I’m sure I missed some others. You can also see the kinds of questions she asked Justices Gorsuch, Kavanaugh, and Barrett during their confirmation hearings.

Knowing all we know, I have a hard time understanding how putting Harris in the White House could “save conservatism.”