Supreme Court

Amy Coney Barrett and the Problem of Conservative Judicial Deference

Reviewing the record of the SCOTUS shortlister.

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Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit is reportedly at the top of President Donald Trump's shortlist of candidates to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court. A former Notre Dame law professor, Barrett is a popular and respected figure in conservative circles. But any conservative or libertarian who hopes to see the federal courts pay greater heed to the original meaning of the 14th Amendment is likely to be troubled by some of Barrett's writings on judicial deference and economic liberty.

In 1938 the Supreme Court concocted a bifurcated approach to judicial review that treats some constitutional rights as more equal than others. If a law or regulation infringes on a right that the Court has deemed fundamental (such as freedom of speech or the right to vote), the Court said in United States v. Carolene Products Co., the judiciary should presume that law or regulation to be unconstitutional and subject it to "more exacting judicial scrutiny." By contrast, in cases dealing with "regulatory legislation affecting ordinary commercial transactions," Carolene Products stated, "the existence of facts supporting the legislative judgment is to be presumed." In other words, judges are supposed to tip the scales in favor of lawmakers when economic liberty might be at stake.

Now known as the rational-basis test, this rubber stamp approach has led to some truly dreadful judgments. Take Goesaert v. Cleary (1948), in which the Supreme Court upheld a Michigan law forbidding women from working as bartenders unless they were "the wife or daughter of the male owner." Valentine Goesaert, who owned a bar in Dearborn, fought for her right to tend bar in her own establishment. She lost thanks to rational-basis deference.

"We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives," declared Justice Felix Frankfurter. "Since the line they have drawn is not without a basis in reason," he wrote, invoking the rational-basis test, "we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling." Needless to say, the ban on female bartenders served no legitimate public health or safety purpose.

Rational-basis deference was also at the center of the federal district court ruling in Niang v. Carroll (2016). At issue was a Missouri law that made it a crime to offer African-style hair braiding services without a cosmetology license. That slip of government paper did not come cheap. In addition to paying thousands of dollars in fees, would-be African-style hair braiders had to complete over 1,500 hours of state-sanctioned education. What is worse, none of Missouri's licensed cosmetology schools actually offered any training in African-style hair braiding. Once again, the regulation at issue served no legitimate public health or safety purpose.

But none of that mattered to Judge John M. Bodenhausen of the U.S. District Court for the Eastern District of Missouri, who let the preposterous law stand. "This case," Bodenhausen declared, "illustrates the great deference that federal courts must show to government regulations under the rational basis standard."

Amy Coney Barrett has written in defense of the rational-basis standard. "Highly deferential judicial review reflects the judgment that a more searching inquiry would pull judges into terrain they are not good at navigating," Barrett wrote in a 2017 article for Constitutional Commentary. "The current, deferential regime reflects humility about the capacity of judges to evaluate the soundness of scientific and economic claims." According to Barrett, "deferential judicial review of run-of-the-mill legislation" is defensible on the grounds that such judicial deference "is consistent with the reality that the harm inflicted by the Supreme Court's erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute."

The late Antonin Scalia once defended judicial deference in similar terms, arguing in a 1984 speech that "the position the Supreme Court has arrived at is good—or at least that the suggestion that it change its position is even worse." According to Scalia, the best approach in economic cases was for the courts to adopt an across-the-board stance of judicial pacifism. "In the long run, and perhaps even in the short run," Scalia maintained, "the reinforcement of mistaken and unconstitutional perceptions of the role of the courts in our system far outweighs whatever evils may have accrued from undue judicial abstention in the economic field."

The problem with the Scalia-Barrett view is that it runs counter to the text and history of the 14th Amendment, which was written, ratified, and originally understood to protect (among other rights) the right to economic liberty. In the words of Rep. John Bingham (R), the Ohio congressman who served as the principal author of Section One of the 14th Amendment in 1866, "the provisions of the Constitution guaranteeing rights, privileges, and immunities" includes "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil."

Put differently, if the federal courts had followed the 14th Amendment—rather than the judicially invented rational-basis test—then a bar owner's right to tend bar in her own establishment and an African-style hair braider's right to earn a living would have been rightfully secured against arbitrary and unnecessary government interference.

If Amy Coney Barrett is nominated to replace Justice Ruth Bader Ginsburg, I hope that someone on the Senate Judiciary Committee will ask her whether she thinks that rational-basis deference can be reconciled with the original meaning of the 14th Amendment.

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  1. Is that “conservative” deference or the accepted precedent of the judicial branch? I don’t think any progressive is not going to be deferential to legislatures on economic matters.

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    3. What’s the point on this? She’s using an argument/position that many judges and justices before her have used. This article is really a position paper espousing the supremacy of the 14th Admendment…not a handicap of the judge.

    4. What is Justice Ginsburg’s record on this issue? Will a Justice Barrett’s be any worse?

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  2. Man if I were Trump I would telegraph the fuck out of Barrett and then without any warning nominate Logoa.

  3. Sounds dangerously close to Kavanaugh’s deference to stare decisis. It’s one thing to advocate for stopping the advance of the regulatory state, it’s unthinkable that it actually be rolled back.

  4. The worse part about Amy coney Barrett is that if I refference having sex with her and her being nude I won’t be traumatizing soldiermedic

    1. Thank God!!!

      1. And Lagao is also acceptable.

  5. We just can’t have nice things.

  6. ‘”The current, deferential regime reflects humility about the capacity of judges to evaluate the soundness of scientific and economic claims.” According to Barrett…”

    Yeah, and the ” current, deferential regime” puts it into the hands of politicians, who are generally incapable of evaluating anything other than their standing in the polls.

    1. Which are elected, temporary positions.

      Plus, nullification in the local courthouse.

      There’s nothing wrong with legislatures repealing dated laws. The judicial system does not exist to determine what laws a people should have, but whether they are onerous under the constitution.

      If the town of Pokipskee wants to limit something, let them pass that law. If they don’t, let them repeal that law.

      1. I meant, specifically, regarding laws and regulations which involve possible constitutional issues. where many judges tend to assume the law or regulation is legal, will be enforced in good faith, or has been enforced in good faith, simply because the government is the government. There is no requirement for the Courts to show deference to one party over the other.

  7. So Damon. The President of the United States, when asked if there will be a peaceful transfer of power after the election, said:

    “Well, we’ll have to see.”

    Imagine that. Couldn’t insure a peaceful transition of power if he lost. And then he further expanded on that by stating what he is waiting for before committing to a peaceful transition:

    “I’ve been complaining very strongly about the ballots, And the ballots are a disaster…Get rid of the ballots, and you’ll have a very – you’ll have a very peaceful – there won’t be a transfer, frankly, there’ll be a continuation.”

    Ballots. Votes. Depending on if he he gets them or not. So when does a statement like this from the President rise to the level of concern for any libertarian here at Reason? Not a mention anywhere, including from you. If Obama said that your hair would be on fire. Heck, everyone’s hair at Reason was on fire when he said “you didn’t build that.”

    Care to comment? No problem there?

    1. Say whatever you want about Trump, it is probably true. In this case I think it is more of his usual daily blundering, make out of it what you will; the guy is a narcissistic bloviating gas bag. Tomorrow it will be some other outrage to be parodied by The Daily Show and SNL.

      As for my very limited choices, I am going to cast my vote that will result in more constitutional originalist judges being appointed; I am rather in favor of my rights and freedoms, you see. And I see that more likely to happen with one candidate [in spite of himself] than another.

      1. That’s all well and fine, you voting for whoever does the things you need. The real problem with those quotes is we now have a President who says he will not guarantee a peaceful transition if he loses. Because if he loses, it’s all a scam. And then all bets are off. Duck and cover.

        You’d think libertarians here would have a real problem with that.

        1. In the world or realpolitik, we have choices. From my perspective moral outrage doesn’t help much with those.

          I do not have much, if any, faith in either the executive or legislative branches supporting anything close to a “libertarian” ideal, which for me means limited government, free enterprise, and being able to pursue life, liberty, and the pursuit of happiness with minimal interference. Over the past several decades Congress has abrogated much of its responsibility to an unelected and largely unaccountable administrative state and I would like to see this stopped and reversed as much as possible.

          An example: In my State a Democratic representative opposed a Republican initiative, which was to hold that no State regulation could surpass a Federal reg on a given issue; the Democrat rather wanted for Federal regs to serve as a “floor” upon which they could legislate as much as they wanted.

          I believe this example to be a fairly representative of the philosophy of the two parties [of course there are exceptions, but they are just that]; that government needs to be an aggressive force for “good” and there will be no end to its efforts to intervene and adjust. I am not going to “waste” my vote on a third party [as I have done for years] just to feel virtuous about it; I live in a “battleground” State and there is too much at stake; I would be surprised if it is another contested election and it comes down to whatever passes for a “hanging chad” nowadays.

          So my faith is in an “originalist” judiciary that will serve to protect the rights I value. Given 200+ confirmations and yet another on SCOTUS, it looks like a better world to me than it did four years ago.

          Trump can say whatever stupid shit [I wish he wouldn’t, but no one seems to be able to control that] on any given day, and I will judge whether to take it seriously or not. You can use it to gin up outrage if you want; there are plenty seem to make a living off of it.

          1. It’s worthy of outrage.

            1. Hey Jackand Ace: you’ve exhausted our patience. We can no longer tolerate your temper tantrums and totalitarian lust. You are not a fellow citizen, you are an enemy.

              1. That’s a badge of honor. Thanks!

                1. Go and have your moment of outrage as it means so much to you. Scream at the sky while you’re at it.

                  And please include the woman who would have been president and her exhortation to Biden to “not concede this election under ANY circumstances.”

                  1. Just remember, John once said that Obama was pissing on the american people for not attending Scalia’s funeral. Talk about a moment of outrage.

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                    2. And john was right.

          2. So we can assume that any complaint you had or may have about some minor slip of the tongue by Obama or Biden, or even outright outrageous comments they may make, is utterly performative? We should assume you’re lying and playing realpolitik and don’t actually care, yes?

        2. we now have a President who says he will not guarantee a peaceful transition if he loses

          No we don’t. As already pointed out, that isn’t what he was asked. You’re a lying sack of crap.

        3. I vote libertarian, do my volunteer work, and thrill at the thought of looters ripping each other’s entrails out over some hairsplit or other of coercive dogma.

        4. Since Hillary Clinton has already stated the Ds will not concede under any circumstances, I think the reporter was trying to corner him into a position where if it any time he’s behind in the vote count (and yes, it’s planned to go on for weeks as mail-in ballots trickle in), people won’t be demanding Trump concede so they can end counting votes. To think he wouldn’t leave is ridiculous, just as ridiculous as thinking the Ds are NOT planning all kinds of immoral shenanigans around mail-in votes, dumping ballots, and outright fraud. Why no compliant that the Ds not only have never accepted the 2016 election and have openly proclaimed they will not concede this election if they lose? Partisan bias on your part perhaps?

        5. So we are now taking Trump literally? That what he sees in response to a ramblind press gotcha question is some inviolate statement of pending tyrannical behavior?

          Okay then, nice bizarro world you live in. Because the last 4 years have clearly shown most rational people that Trump says an awful lot of wild stuff, but his actions and policies have been as, if not more, balanced and moderate relative to the last three presidents.
          And, of course, he is absolutely right about seriously questioning the dems ongoing efforts to delegitamize our voting process.

    2. You seem to be confusing Trump with Democrats.

      1. I do not adore Trump; he is just better than the alternative, for reasons I state above.

    3. What does that have to do with this article? Also, there is a Reason article addressing the issue you describe.

      1. They just put it up. They’re late

        1. They just put it up. They’re late

          And yet your comment is still every bit as irrelevant…not to mention thoroughly dishonest.

      2. Seems we have a comment Karen on board.

    4. when asked if there will be a peaceful transfer of power after the election

      Of course, that’s what was actually asked. The exact question was…

      “Win, lose or draw in this election, will you commit here today for a peaceful transferal of power after the election?”

      A question that asks if a sitting POTUS will somehow transfer power to someone else even if he wins reelection…or there is a draw, which cannot happen…merits only a scornful expression and dismissal of the question is inane.

      1. “that’s what was actually asked”

        …should have been…

        “that’s not what was actually asked”

        1. It’s what was asked. He could have answered about a scenario in which he won or lost. He didn’t. It was all the same to him. And he went on to speak about fraud in the election, which tells you he knew it was asked in regard to him losing.

          He answered the same way months ago with Chris Wallace.
          WALLACE: But can you give a, can you give a direct answer you will accept the election?

          TRUMP: I have to see. Look, you – I have to see. No, I’m not going to just say yes. I’m not going to say no, and I didn’t last time either.

          He told you 4 years ago, he told you months ago, he told you this week. If he loses, he isn’t going to accept the results.

          1. It’s what was asked.

            No, it isn’t. You’re still lying.

            1. He was asked again today. Still won’t commit to a peaceful transfer if he loses. But keep drinking the Kool-aid.

              1. Given the riots, arson, and looting in so many blue cities, how can anyone promise a peaceful transfer of power?

                And does the spying by the prior administration, ginning up of false charges, and harassment of the incoming administration, as we saw in 2016-7, meet the standard of a peaceful transition of power?

              2. He was asked again today. Still won’t commit to a peaceful transfer if he loses.

                Again….you’re full of shit. He was not asked about a peaceful transfer “if he loses”. He was asked about that whether he wins or loses…or in the event of an (impossible) draw. It was a bullshit question that didn’t merit any answer at all.

      2. If Trump said that he would relinquish power should he lose the election. The headline would read, “Trump Preparing to Leave”

    5. If we’ve learned anything since November 2016 there won’t be a peaceful transfer of power if Trump wins. Guarantee you that.

    6. Since Hillary Clinton has already stated the Ds will not concede under any circumstances, I think the reporter was trying to corner him into a position where if it any time he’s behind in the vote count (and yes, it’s planned to go on for weeks as mail-in ballots trickle in), people won’t be demanding Trump concede so they can end counting votes. To think he wouldn’t leave is ridiculous, just as ridiculous as thinking the Ds are planning all kinds of immoral shenanigans around mail-in votes, dumping ballots, and outright fraud. Why no compliant that the Ds not only have never accepted the 2016 election and have openly proclaimed they will not concede this election if they lose? Partisan bias on your part perhaps?

    7. Liar. I actually read the transcript AND the press secretary’s takedown.

      Stop lying.

  8. I think Judge Barrett has far more I agree with, than what I disagree with. She would be a superlative addition to SCOTUS.

    1. The leftists in this country are insane, but I can see the radical “christian soldiers” in the trenches preparing to charge. Charismatic Christians are over the top. I wouldn’t trust anyone associated with such a cult.

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  10. Ms Barrett is a “handmaiden” in her wacky religious cult. You don’t have to look hard to find a nutcase hiding under the conservative label.

    1. Got triggered again didja snowflake?

    2. Your idol of justice is dead. She’s being replaced.

    3. That’s why Trump needs to push the hell out of Barrett. Let the media spin in circles doing oppo research about Opus Dei, then spring Logoa on them and watch them contort themselves opposing the Wise Latina.

      1. It is hilarious watching you people try to play gotcha on identity politics.

        “See, she’s Latina! You can’t criticize her! That’s what identity politics means!”

        You are the racist cunts you are pretending Democrats are.

        1. > You are the racist cunts you are pretending Democrats are.

          “If you have a problem figuring out whether you’re for me or Trump, then you ain’t black!” – Joe Biden

          Die in a grease fire you stupid lying bitchy faggot.

    4. Conservative translates as “mystical bigot” in other languages

    5. Bigoted idiot is what you are.

  11. If Amy Coney Barrett is nominated to replace Justice Ruth Bader Ginsburg, I hope that someone on the Senate Judiciary Committee will ask her whether she thinks that rational-basis deference can be reconciled with the original meaning of the 14th Amendment.

    I wouldn’t hold my breathe. They’ll be too busy asking her “why she hates womyn and want them to be used as breeding stock” and whether or not she wants to help Trump “put black people back in chains” or some such bullshit.

    1. Yeah. Republican Theodore Roosevelt invented race suicide to coerce women, so it must be at least as awful as the communist income tax he also pressed for on the Moose Lodge ticket is wunnerful!

      1. As if the Parties are the same as they were 120 years ago. We should point out that ol’ Teddy was an early leader of the Progressive movement. And yes, you are correct, that is what Progressives are all about.

  12. “Highly deferential judicial review reflects the judgment that a more searching inquiry would pull judges into terrain they are not good at navigating,” Barrett wrote in a 2017 article for Constitutional Commentary. “The current, deferential regime reflects humility about the capacity of judges to evaluate the soundness of scientific and economic claims.”

    With all due respect, there are 3 problems with this idea.
    First of all, the legislative branches at all levels of government consistently pass irrational and unscientific laws, and demonstrate an absolutely terrible record of basing decisions on reason.
    Second, it isn’t even accurate on its own terms, since judges, on a daily basis, evaluate scientific and economic evidence in the courtroom, when dealing with cases involving parties who aren’t challenging the constitutionality of laws. There is no rational basis for claiming that they suddenly lose this ability when someone says a law is unconstitutional.
    Third, an unconstitutional law harms everyone it is applied against, so the democratic process changing the law after the fact is not a redress to the harm it caused while it was in effect. The fact that a majority ratifies a law does not make it constitutional, by definition.

    1. “Third, an unconstitutional law harms everyone it is applied against”

      Unless it’s the constitution that sucks.

      1. If only the Soviets had prevailed, right? Well, keep your chin up. The Bolsheviks may come out on top yet. Two steps forward, one step back, and all that jazz.

        1. Yes thanks to your favorite politicians we ended up in the same place anyway, kleptocracy and ridiculous strong men destroying elections.

    2. Was Barrett addressing lower court review or SCOTUS review? There is a difference.

  13. Logoa is the OBVIOUS political pick. Trump needs to win Florida she’s from Florida, she’s Cuban, It’s win win win for his base. I think it’s always been here and it will be her when it comes down to it.

    1. And I suspect you are right. Meanwhile Barrett [for all her charms] is being floated as a distraction, and possibly open to criticism that Logoa will possibly deflate.

    2. Do you really think Florida is a risk for Trump? I dont…its already well locked up.

      The battleground will be the great lakes states.

  14. Frankenfurter it’s all over
    Your mission is a failure
    Your ruling’s too extreme…

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  16. “Highly deferential judicial review reflects the judgment that a more searching inquiry would pull judges into terrain they are not good at navigating,” Barrett wrote in a 2017 article for Constitutional Commentary. “The current, deferential regime reflects humility about the capacity of judges to evaluate the soundness of scientific and economic claims.”

    With all due respect, there are 3 problems with this idea.
    First of all, the legislative branches at all levels of government consistently pass irrational and unscientific laws, and demonstrate an absolutely terrible record of basing decisions on reason.
    Second, it isn’t even accurate on its own terms, since judges, on a daily basis, evaluate scientific and economic evidence in the courtroom, when dealing with cases involving parties who aren’t challenging the constitutionality of laws. There is no rational basis for claiming that they suddenly lose this ability when someone says a law is unconstitutional.
    https://www.poetrysector.com/
    Third, an unconstitutional law harms everyone it is applied against, so the democratic process changing the law after the fact is not a redress to the harm it caused while it was in effect. The fact that a majority ratifies a law does not make it constitutional, by definition.

    1. Were you and Valkanis separated at birth?

    2. Indeed. Judges with the humility to realize they don’t have the background to make rational scientific or engineering decisions does not in any way solve the problem we need them to judge the worth of laws on these subjects written by legislatures lacking that very humility.

  17. I would think that a person would have to obtain some sort of cosmetology license before being allowed to perform the specialized African hair braiding. This wasn’t a dreadful decision.

    1. How does that protect the public from charlatans? Will irreparable harm be done if the hair is incorrectly braided?

      Such regs are judicial overreach.

    2. Because a bad hairdo is traumatizing, and bureaucrats need to save people from potentially not looking their best?

    3. Did you read the article? Absolutely zero portion of the cosmetology training covers any of the knowledge or skills needed to “perform the specialized African hair braiding.” It’s like requiring a doctor to pass a course in veterinary medicine.

  18. Could Roe really be overturned? Would Gorsuch and Roberts vote to gut Roe? I don’t think so. Some restrictions, as have been proposed recently, are not going to end abortion.

  19. What is Justice Ginsburg’s record on this issue? Will a Justice Barrett’s be any worse?

  20. Most likely, Barrett will be the nominee, she will be confirmed, Leftists will scream profanities at the sky, life will go on.

  21. So, you support your argument with one case from 1948 — likely years before Barrett was born — and a district court case from 2016. With regard to the latter, did you ever consider that the district court in that case — which sits in a different circuit than Barrett sits in — simply got that one wrong.

  22. Can anyone explain the rationale underlying the distinction between economic substantive due process, and non-economic substantive due process? I mean, besides political and ideological expedience?

  23. Based on this “ of Section One of the 14th Amendment in 1866, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” includes “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.’”, what’s to stop me from being a gunrunner or take up other jobs frowned upon by the feds but guaranteed by the 14th amendment?

    1. You need 150 hours of specific training and a Senate seat in California to become an illegal gunrunner. It’s a licensing thing. It assures quality services.

  24. The argument by the majority SCOTUS decision for upholding a Michigan law outlawing female bartenders: “We can not examine (the legislator’s rationale)…since (the law has) a basis in reason.” No more? In other words, trust us, we’re not going to say why this law is reasonable. WTF? We can’t dissect their decision if they give none. But we can note their blatant disregard for transparency. And explaining this as a “policy” with regard to commercial enterprises is no help, e.g. a vague analysis of an obvious failure to defend equal rights.

  25. The SCOTUS’s “rational-basis deference” is a get-out-judgement policy, probably when convenient, e.g., a political hot potato.
    It is cowardly avoidance of their oath.
    Why do we put up this farce call government?

  26. Does she believe in judicial activism or does she know then role and purpose of the court is to review the constitutionality of a law (not make law)? If it’s the latter, she should get conservative/libertarian support

  27. Yeah, Bingham said a lot of great things about the 14th Amendment. Too bad he never made sure they appeared in the actual text.

    Bingham also assured people that the 14th would incorporate the entire Bill of Rights to the 50 states. Of course, we know from history that it didn’t. It took more than 120 more years before SCOTUS grudgingly admitted that the Second Amendment applied to the states in McDonald, and there are still portions of the BOR that remain unincorporated.

    Everything that Bingham ever promised about the 14th Amendment can be answered by a single, stark truism uttered by MA Senate President Thomas Birmingham in 2000: “The Legislature makes a promise in legislation, not in description, not by prediction.”

  28. I never understood how the SC supported parts of the Civil Rights Act of 64 that decided buyers and sellers were not equal and the govt had the right to intercede in mutual agreed upon economic transactions. Govt not discriminating or passing laws forcing people to discriminate is obvious..what was confusing was how the “govt” could decide what conditions sellers had to sell and when they could discriminate while buyers can discriminate all the time…economic liberty demands the govt get out of the way of mutual agreed upon transactions…

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  30. That’s a sentence I never could have imagined four years ago and still have trouble processing.
    https://worldabcnews.com/trump-expected-to-tap-amy-coney-barrett-for-supreme-court-vacancy/

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  32. This is SOOO convenient! Pre-Lobotomized judges!!! Just look into those vacant eyes that house the abyss.

    Even the trash at tReason have to finally admit that Republicans are soulless subhuman animals.

    But the glass is half full!! Think of the medical breakthroughs you could come up with by reclassifying Republicans as hominid lab animals.

  33. If you think there has to be is a perfect candidate, you will be waiting a long time, and probably find that person cannot past the Senate hearing.

  34. GREAT! Now where’s the article on “The Problem with Liberal Judicial Deference”???
    That is after all the problem that has America where it is at right now.

  35. You made such an interesting piece to read, giving every subject enlightenment for us to gain knowledge. Thanks for sharing the such information with us to read this…thanks

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