Supreme Court

The Originalist Context of Amy Coney Barrett

|The Volokh Conspiracy |

I did an extended interview with Dylan Matthews at Vox on current originalist theories and how Judge Amy Coney Barrett fits into that theoretical landscape. From his intro:

To better understand her academic writings, I reached out to Keith Whittington, a professor of politics at Princeton and a leading expert on originalism and constitutional interpretation. I wanted to get a better sense of what it means that Barrett is an originalist, how her variety of originalism works, and how to understand her most prominent academic papers.

You can read the whole thing here.

I expect to have more on Barrett's originalism in coming days after I do more reading. I doubt I will completely agree with her opinions over time, but I expect she will be a thoughtful and capable justice and a valuable addition to the current Court. She will have to endure what will likely be an extraordinarily stressful and unpleasant experience in the coming days, and the commentary on social media and the press has already been very ugly. I do not envy her.

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  1. If it stops with just words, she’ll be very, very lucky, in a year when the left has been deploying Molotov cocktails with such abandon.

    1. “abandon?”

      Take your meds.

      1. Multiple attempts to burn occupied buildings with both Molotov cocktails and fireworks. Maybe you could spare some of your meds for them, since you don’t seem to be taking them yourself.

    2. If it stops with just words, she’ll be very, very lucky, in a year when the left has been deploying Molotov cocktails with such abandon.

      It’s not been the Left showing up to government building armed and occupying them.

      1. Occupying one empty building with no violence.

        vs

        Throwing Molotov cocktails and shooting fireworks at occupied buildings.

        One of these is not like the other.

        1. Charleston’s Emanuel AME Church, the Malheur National Wildlife Refuge, the Tree of Life Synagogue, a Walmart in El Paso, TX, and the Chabad of Poway Synagogue, among others, would like a word.

          1. Don’t forget the Idaho capital . . . or was it Montana . . . or North Dakota . . . it was at least one of those clingerverse states.

            1. Oh, you mean when the Black Panthers “occupied” the California legislature in, what, 1967?

              1. I was referring to this, which bigoted clingers might have overlooked.

                Carry on, clinger.

          2. Church, Synagogue, Walmart, Synagogue. Government buildings?

            1. “Government buildings?”

              Well there was the wildlife refuge. Also, didn’t a sovereign citizen fly his plane into an IRS building?

              Still, I have to admit, it hardly seems they’ve got their hearts in it. And who can blame them? After Tim McVeigh set an impossible to meet standard, it only stands to reason his political progeny would search out other targets like churches, synagogues, shopping centers, abortion clinics and pedophile pizza parlors to leave their mark.

              1. Also, didn’t a sovereign citizen fly his plane into an IRS building?

                You mean the guy who hated the Republican POTUS?

                1. Lol. By your reasoning the #NeverBiden Bernie Bros aren’t left wing.

  2. ACB’s originalist view 4 years ago was the Senate shouldn’t confirm a SCOTUS nominee put forward in an election year.
    I call her well documented opinion an “originalist” view because the Constitution says nothing of the sort – so she had to rely on her view of originalist principles.
    Apparently, her views have changed.
    That doesn’t speak well of her principles – originalist or otherwise.
    Says more that she’s into exercising raw power.
    That’s fine too … just say so.

    1. Cite?

      An originalist view would be that it’s the Senates perogative as to whether or not to take up a nomination during an election year or any other time.

    2. “ACB’s originalist view 4 years ago was the Senate shouldn’t confirm a SCOTUS nominee put forward in an election year.”

      That’s not at all wht I have read about what she said at the time. She said, among other similar things, “[ACB] said in 2016 that she did not think precedent “establishes a rule for either side in the debate” over replacing Supreme Court justices during an election year.”

      https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-2016-interview-confirming-justices-election-year/

      Please supply a reference for what you assert.

  3. An originalist view would be that it’s the Senates perogative as to whether or not to take up a nomination during an election year or any other time.

    But that wasn’t the argument that the Republicans were making. In fairness, Barrett wasn’t defending such a rule; she appeared to be saying it was OK to deny Garland a hearing.

    And, on constitutional grounds, it wasn’t. There isn’t a rule in the Constitution against taking up a nomination during an election year. McConnell invented that to excuse a raw exercise in power. I really hope the Democrats in the Senate have finally figured out that power is to be used (assuming they gain it in November) and return the Court to being one not dominated by hard-right Republican appointees.

    Personally I’m doing pretending that the Court, when it rules on major policy issues (such as the ACA) is anything more than a political body that generally reflects the political preferences of the Justices. Janus cured me of that – when the Court directly overruled Scalia’s dissent in Lehnert.

    The coming ACA case will be an acid test of Barrett’s commitment to the rule of law and the primacy of the elected branches in making policy, given the complete BS that the case represents.

    1. Any judge who believes the underlying rationale of Heller is correct is a political operative that adopts the judicial philosophy that gets them to the most decisions that align with their political goals. Btw, the liberals in the Heller dissent showed they are willing to promote conservative judicial philosophies when it results in promoting their political goals.

      1. Why is the unenumerated right to an abortion more protected than the enumerated right to keep and bear arms?

        1. I don’t support Roe and hope it’s overturned. Roe being overturned can only be good for Democrats because trap laws have been so effective in eroding abortion rights. So suburban moms will freak out once Republicans in Texas and Florida outlaw abortion in cases of rape and force girls to have rape babies…Ooh, he has your rapist’s eyes! So cute!!

    2. Please clarify this:

      she appeared to be saying it was OK to deny Garland a hearing.

      And, on constitutional grounds, it wasn’t.

      Are saying that the constitution requires a hearing? Please show where it says that.

      1. I mean …. let’s get serious for a minute. The constitution does not require a hearing, either at all or within any specific time limit. If you are saying it does, not only do you need to show where, you need to clarify how time affects it. Within one month? One day? One year?

        No of course it doesn’t. Off with you. Be gone!

        1. Garland’s America is one in which embryo are slaughtered in abortions and men dressed as women pee in the stall next to your daughters!!

          1. It was constitutional to deny Garland a hearing and vote.

            It will be constitutional to install Barrett rapidly.

            It will be constitutional to enlarge the Supreme Court, enlarge the lower federal courts, admit a few states, enlarge the House of Representatives (with it, the Electoral College), criminalize voter suppression, and enact single-payer health care.

            We are living in exciting constitutional times!

          2. This is an idiotic argument. Log off and read something.

  4. The idea that SCOTUS justices have a coherent judicial philosophy is antiquated. They decide cases based on their politics and pick the legal reasoning to fit. They will happily abandon any philosophy to get the result they want. This goes for both sides.

    1. More true for the Left. You get a lot more wobblers on the ‘conservative’ side.

  5. Originalist theory has moved on this front. It’s increasingly become interested in that question of how many and how significant are the mistakes out there from an originalist perspective? And then how do you deal with them and manage them?

    How so, Professor Whittington? That is something I would like to read more about.

  6. A bit surprising that Reason would describe a religious zealot as “thoughtful and capable”. After all, she did join a cult that requires all women to run everything through their husbands for approval. So who is actually making judicial decisions?

  7. The whole Hand Maids tale comparison is pretty laughable. I missed the part where the woman becomes a federal judge and then gets nominated for SCOTUS. You know because she’s submissive to males and all.

    What a bunch of morons.

    1. You’re talking about people who base their views on scripted TV fiction. Of course they’re morons.

  8. I expect to have more on Barrett’s originalism in coming days after I do more reading.

    Please do. I’m interested to hear why I should support a judge who supports a legal fiction that, if it carried the day in court, would annul my marriage and make me a criminal in Texas.

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