According to Best Lawyers — “the oldest and most respected peer-review publication in the legal profession” — Emmet Bondurant “is the go-to lawyer when a business person just can’t afford to lose a lawsuit.” He was its 2010 Lawyer of the Year for Antitrust and Bet-the-Company Litigation. But now, he’s bitten off something even bigger: bet-the-country litigation.
Bondurant thinks the filibuster is unconstitutional. And, alongside Common Cause, where he serves on the board of directors, he’s suing to have the Supreme Court abolish it.
In a 2011 article in the Harvard Law School’s Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines. But to understand the argument, you have to understand the history: The filibuster was a mistake.
In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.