Courts

'Coup For Dummies' Author Finds Second Act Filing Amici Briefs For SCOTUS Recycling Bin

When you have no more friends, try being a friend of the court.

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(Photo by Alex Wong/Getty Images)

Burrowed in as a law professor at Chapman and chair of the Federalist Society’s Federalism & Separation of Powers practice group, John Eastman had his whole career set as a right-wing academic. Take a few think tank board gigs to bring in some extra cash and waltz comfortably into retirement. Then he decided to start bringing his unique collection of wingnut legal theories to the public, and respectable institutions started rapidly distancing themselves from him.

Which is to say Chapman rapidly distanced itself. The Federalist Society, on the other hand, took a different route. Having done the “Separation of Powers practice group” proud claiming that the Vice President’s office is vested with the power to unilaterally decide who wins presidential elections, FedSoc doubled down on Eastman. In fact, while Eastman was already planning to step back from his leadership post before the riot, FedSoc then affirmatively delayed plans for his retirement because they didn’t want to look like they were firing him due to his coup memo because the Federalist Society is such a sniveling toadie to Trumpian excess that it put off his planned transition so Tucker Carlson wouldn’t call them cucks. Just a non-partisan debating society… amirite?

I guess it’s still better than the Claremont Institute, which took on the comical task of explaining away Eastman’s memo.

So now John Eastman is looking for a second act. Another 15 minutes of fame after “saying racist shit about Kamala Harris” and the “coup coup ka-choo memo” sent his legal career — and possibly his law license — careening off the cliff. Why not just churn out amicus briefs?

Eastman is also employing his constitutional-law background to sway the high court, filing amicus curiae briefs on issues near and dear to him. In the Supreme Court term that opened last week, Eastman and [former Chapman Law prof Anthony] Caso have filed briefs on behalf of the Claremont Institute, where both men staff the conservative think tank’s Center for Constitutional Jurisprudence. Their work includes interventions in the term’s two most high-profile cases, where the men side with gun owners attacking New York’s strict gun-control law and with the state of Mississippi in trying to overturn Roe v. Wade.

Of course! Eastman and Caso have named their new firm the Constitutional Counsel Group which has all the markings of a legitimate enterprise in that they haven’t even bothered to put up a website.

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But they have some briefs out there! Not that they have any actual clients on the line… but they have THOUGHTS on the pressing issues before the federal courts. The question is, will anyone care?

It’s unclear how persuasive the disgraced law professor can be to the right-wing of the federal judiciary. Conservative legal luminaries have already looked askance at Eastman’s recent work. Even the more brazenly reactionary judges and justices might be loathe to cite Eastman’s work at this point — let alone try to coalesce a majority around it.

And that’s without even considering whether judges even care about the thoughts of amici in the first place. Some amicus briefs will carry substantial weight. The United States will always get a good listen. Organizations like the ACLU will garner respect when writing on issues it routinely contests directly. Respected scholars and former judges can offer sage advice too. But most amicus briefs… are useless.

Well, perhaps not useless, but they aren’t meant to help the courts in any way. The unheralded truth about amicus work is that most of these briefs are slapped together by non-profit organizations as public relations stunts to wave in front of donors for the next pledge drive. “You may have thought we’ve not done anything about [insert cause here] but we did file this legally duplicative amicus brief that says all sorts of flowery and/or inflammatory stuff that no party would ever write — give us money!”

Bringing us back to Eastman’s work this Term, filing on behalf of the Claremont Institute whose concrete interest in these cases amounts to… what exactly? At this point even the National Review considers the group little more than a bunch of shills seeking to capitalize on the latest outrage riling up the “smarmy underside of American politics.” What purpose do these briefs serve other than grist for the fundraising machine?

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But what his work lacks in substantive recognition, it may more than make up in simply keeping Eastman at the center of the conservative legal universe. How many “Supreme Court briefs” does it take to recapture the “hashtag gravitas” necessary to make another run at an authoritarian takeover?

And will the number be greater or fewer than the licks it takes to get to the center of a Tootsie Pop?

Opinion: John Eastman isn’t going away quietly [Washington Post]

Earlier: Newsweek Says Kamala Harris Essay Not ‘Racist Birtherism’ (Psst, It’s Totally Racist Birtherism)

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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