Supreme Court

Amy Coney Barrett Is No Extremist on Stare Decisis

|The Volokh Conspiracy |

At the New York Times, I have a new piece about Professor Amy Coney Barrett's writings on precedent and stare decisis. This was a significant component of her research agenda as a scholar, and it has come under new scrutiny now that she might be able to put some of her ideas into practice as a justice on the U.S. Supreme Court.

Although critics have decried her as an extremist on stare decisis, I am more impressed by the extent to which her scholarship was designed to push originalists toward a more moderate and more mainstream position on the question of the authority of erroneous precedents. She may not preserve your favorite precedents as a justice, but that does not mean that she is a radical in regards to stare decisis. For better or for worse, she is no Clarence Thomas on the virtues of casting misguided precedents aside.

From the piece:

Justice Scalia was sometimes criticized as unprincipled in his approach to stare decisis, but Judge Barrett has argued that a principled defense can be built for Justice Scalia's position, and in doing so she has argued that a committed originalist can reasonably adopt a mainstream approach to stare decisis on constitutional issues.

Even an originalist judge, she believes, should frequently defer to what might be flawed precedents. That is true for what are sometimes called "superprecedents" like the unconstitutionality of racial segregation and the constitutionality of paper money, but it is also true for many more ordinary precedents that might have been badly reasoned but that are now broadly accepted.

You can read the whole thing here.

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  1. “Some have suggested that it is a “bombshell” that Judge Barrett wrote in 2013 that the “justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” But outside the superheated environment of a Supreme Court confirmation fight, that statement is anodyne.”

    No, that’s not anodyne. That’s a bombshell. She is flatly saying she will disregard the Court’s prior interpretation of the Constitution and substitute her own.

    1. It’s a bombshell that should be dropped. The Court makes mistakes from time to time. And the Justices’ oaths are to the Constitution, not to their past rulings.

      Literally, every time they vote to uphold precedent instead of their best understanding of the Constitution, they violate their oaths of office.

      1. Way to blow up the OP’s attempt to make her seem mainstream, Brett!

        1. It’s still the truth: They don’t swear to uphold their own past mistakes, they swear to uphold the Constitution.

          1. Yes, and the first amendment allows for no interference with the freedom of speech. In both cases the same question arises: what is the “constitution”/”free speech” as referred to in that instance?

            1. The point is, you can argue about what the Constitution means all you like, but a Justice has no excuse for upholding precedent they think is wrong.

              1. Unless they think the Constitution also supports some stare decisis, which it does. The Constitution does not give the judiciary a blank check to decide all cases on their own whims; their constitutional duty comes with common law concepts and judicial restraint baked in.

                1. Exactly. The “judicial power” that is given to the courts includes the power to put glosses on the text of the Constitution through stare decisis/common law lawmaking. All of that combines to form the Constitution in the wider (and more commonly used) sense, which runs to a good 3000 pages in the most recent GPO edition.

                  1. “they think is wrong.”

                    1. Justices have a constitutional basis for upholding decisions that they think are wrong.

                    2. I think we’re going to have to disagree on that.

                    3. Brett, why would anyone think there is a greater likelihood that a precedent-disdaining new Justice is more likely correct on the Constitution than a former Court majority? What effect, if any, do you concede to reliance interests, and to the public’s expectations of what the Constitution means, which reliance interests inevitably engender?

                    4. Well, for one thing, we can point to particular rulings that are widely agreed to have been wrong. The Slaughterhouse cases that rendered the 14th amendment moot for generations, for instance.

                      And I’m not keen on the idea that the Constitution is subject to a sort of “adverse possession doctrine, where if one Court issues a bad ruling, and maintains it against complaints for some period of time, future Courts can no longer reclaim the original meaning of the Constitution.

                    5. @Brett,

                      “Well, for one thing, we can point to particular rulings that are widely agreed to have been wrong. The Slaughterhouse cases that rendered the 14th amendment moot for generations, for instance.”

                      I doubt you’re confronting Lathrop’s argument. When you say “widely agreed to have been wrong” are you referring to the dissent? Or to modern academics who see things differently? And why would I care what modern academics think? They’re arguing original intent with people who were alive when the 14A was ratified. That was the majority’s point; they were being asked to interpret “events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose bound in them all…”

                      The longer a precedent survives, the weaker the case against it becomes. It should be uncontroversial that obviously wrong precedents are reversed more quickly than probably wrong precedents. Although reliance interests and continuity in law is one argument for respecting stare decisis, it isn’t the only one. Another would be judicial humility. We don’t need SCOTUS justices in 2020 who express clairvoyance of purpose over constitutional text that is over a hundred (or hundreds of) years old.

                      That’s especially true since precious little original evidence comes out demonstrating actual changed understanding of original intent. In the absence of new evidence, why overturn precedent? (I think the case for overturning poorly reasoned precedent is stronger than the case for overturning precedent on the basis that it didn’t honor some later interpreter’s interpretation of the original intent.)

                    6. “They’re arguing original intent with people who were alive when the 14A was ratified.”

                      No, you’re arguing original intent with people whose intention was to render the 14th amendment a nullity. The Slaughterhouse cases weren’t a mistake, they were the Court deliberately spiking an amendment they didn’t like.

                      “The longer a precedent survives, the weaker the case against it becomes.”

                      So you essentially ARE arguing for judicial adverse possession.

                      Well, let’s look at adverse possession, then. In order to take advantage of it, your occupation has to be open and notorious, and the original owner has to not contest it. If he keeps sending people to evict you, even if you beat them back, you don’t benefit from adverse possession.

                      So, we might argue that the Court gets something wrong (According to the present justice’s views.) a long while ago, nobody really puts up a fight, and it’s been accepted for ages, you’ve got a case for judicial adverse possession. Well, I suppose paper money qualifies here.

                      OTOH, if the Court gets something wrong, (According to the present justice’s views.) a long while ago, large numbers of people are aghast, and the decision continues to be controversial to the present day, it’s more like the squatter who has been successfully beating back efforts to evict him: No adverse possession.

                      That’s the Slaughterhouse cases, or Roe, or Obergefel. Cases that created outrage at the time, and were never accepted by a sizable part of the population, even if they couldn’t prevail against the Court immediately.

                    7. @Brett,

                      “No, you’re arguing original intent with people whose intention was to render the 14th amendment a nullity.”

                      You presume you know what the 14A was intended to do, better than people who were alive at the time. You’re less qualified than them.

                      “So you essentially ARE arguing for judicial adverse possession.”

                      I am arguing that the longer a case survives, the greater the likelihood that the original interpretation was correct as a matter of constitutional jurisprudence. It isn’t adverse possession, it’s a reluctance to substitute my own present-day confidence for history’s judgment. Of course, if some new evidence comes to light that casts doubt on a precedent, that should be considered. But that rarely happens. (Especially as time goes on; are we discovering new troves of ratifiers’ wisdom?)

                      “That’s the Slaughterhouse cases, or Roe, or Obergefel.”

                      Which one of these is not like the others? Slaughterhouse is nearly 150 years old, and involved a Supreme Court interpreting an amendment ratified while the justices were alive. Roe and Obergefell are children, involved justices interpreting amendments that predated their existence, and we don’t know if either will survive. (If Justice Barrett is put on the Court, I expect Roe to fall. Obergefell is 50/50.) And Slaughterhouse, unlike Roe and Obergefell, was fundamentally an originalist opinion. Doctrinally weak cases (like Roe and Obergefell) are far more likely to get reversed, don’t you think?

                    8. I’m presuming that the Slaughterhouse Court had as good of access to Congressional debate as I do, and so know they were mangling the intent of the amendment.

                  2. Brett, why would anyone think there is a greater likelihood that a precedent-disdaining new Justice is more likely correct on the Constitution than a former Court majority?

                    Well, since he never said that, the answer is no one.

                    Conversely, there is no reason to think that a prior majority was correct than a current majority. After all, whatever one justice thinks, without a new majority, he or she can do nothing but write a dissent.

                    What effect, if any, do you concede to reliance interests, and to the public’s expectations of what the Constitution means, which reliance interests inevitably engender?

                    Reliance interests means more than just something has been around for a long time. It means that citizens have acted in reliance on a decision, to their prejudice, in a way that changing the precedent after many years would be unfair.

                    What “reliance interest” is there in, for example, Roe v. Wade? Hard to think of one, and certainly not one that justifies keeping what is generally conceded to be a Constitutional muddle (dare I say, an abortion of a decision?)

                  3. [Reposting w/editing since, apparently, including two links in a short post pushes the comment to moderation – and, in my experience, that moderation never happens here.]

                    The link provided to the GPO edition seems to be for a 2014 version but there is a 2017 version (which seems to be the most recent one and is 42 pages longer than the 2014 version — but I didn’t bother to try to figure out what the differences are).

                    It appears the most recent version (at least until the GPO reorganizes their web pages) can always be found at:
                    www [dot] gpo [dot] gov/constitutionannotated
                    which also includes PDFs of individual sections (‘Document in Context’ tab).

                    1. Thanks. I had the 2013 version lying around and I googled to see if there was a newer one, but all I got was the 2014 version. (Which seemed odd but not worth worrying about.)

    2. So you are saying we should return to Plessy v. Ferguson and constitutionally approved segregation?

      Or you only respect precedent when you want to?

      1. You’re a lawyer, and a pretty smart seeming one. Surely you learned how horizontal stare decisis does not mean ‘all past decisions are untouchably sacrosanct; but at the same time more than ‘the past is dead; ignore past precedent when it suits you.’

        1. Yes, I am smart, which is one reason I am often Bored.

          As to your point, yes, horizontal stare decisis is not an all-or-nothing principle. There are gradations, and there is a spectrum of views. Even Thomas, who is pretty far out there, respects precedent sometimes.

          Prof. Whittington’s point, as his title clearly states, is that Barrett is not at the extreme of the spectrum. Perhaps she is not on the same place as others, but that hardly justifies pearl-clutching about how Barrett is going to ignore precedent. The likelihood is that she will give it about the same weight as Scalia did, which is some, but not all-controlling.

          And all this assumes she, or any other justice, is convinced that a prior interpretation is wrong. Often, the issue is ambiguous, and that is when precedent can tip the balance in favor of one interpretation.

          (Since we are on the topic, several years ago, I succesfully defended a motion to dismiss for lack of personal jurisdiction. Then the Supreme Court issued its decision in Daimler AG v. Bauman (2014), in which it held that, for general jurisdiction, only a corporation’s principle place of business, and state of incorporation, count. So after winning the motion, we had to concede that the case should be dismissed.

          But in Helicopteros Nacionales De Colombia v. Hall – 466 U.S. 408, 104 S. Ct. 1868 (1984), the Court announced that the test for general jurisdiciton is whether a company has contacts that are “systematic and continuous” with the forum. That is what I learned in law school, and what EVERY federal circuit, and almost every state court of last resort, held. That meant that a company like Walmart that has ongoing operations in 50 states is subject to general jurisdiction in 50 states.

          Guess who wrote the Daimler opinion? The late justice Ginsburg. Although she mentioned Helicopteros, she never acknolwedged what a radical departure Daimler was from that decision. It is only when you get to Justice Sotamayor’s lone dissent do you realize that a sea-change has occurred. And, as a litigator, I concur that Daimler was a major sea-change.

          Of course, general jurisdiction is not a sexy topic like abortion, gay marriage or ACA. So you might say, who cares? But the reality is that every justice ditches precedent when it suits them.)

          1. I’m not sure Helicopteros could ever have stood for the proposition that “a company like WAlmart that has ongoing operations in 50 states is subject to general jurisdiction in 50 states.” I also don’t think that in 2014 “EVERY federal circuit, and almost ever ystate court of last resort, held” that having ongoing operations in 50 states subjects all businesses to general jurisdiction. By 2010, even the Supreme Court had signaled principal place of business in Goodyear v. Brown (“For [general jurisdiction against] an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.”) They quoted a 1988 Law Review Article by Brilmayer in support (“identifying domicile, place of incorporation, and principal place of business as ‘paradig[m]” bases for the exercise of general jurisdiction”).

            At the time of the dismissal, which circuit cases were you relying on for the proposition that a court could exercise general jurisdiction over a company merely because that company had “ongoing operations” in the forum state? (Was it y’all’s position that “ongoing operations” is synonymous with “continuous and systematic”?) And why read Daimler as a sea change on the law anyway? It had to do with whether an agent’s conduct in a state could be imputed to the principal for the purposes of general jurisdiction.

            1. 1. Name a Circuit that held otherwise. The Second Circuit, where we were, clearly held that way.
              2. Yes, “ongoing operations” is my synonym for “systematic and continuous.” Walmart operates 167 stores in California and 110 in New York. Are you seriously contending that is not systematic and continuous.
              3. No, Daimler assumed that the agent’s conduct could be imputed, because that was conceded by both sides.

              1. 1. As of 2014? I just told you the Supreme Court case (Goodyear). You could add the 7th Circuit (Abelesz 692 F.3d 638 (7th Cir. 2012) (“The proper inquiry is not, as plaintiff’s suggest, whether a defendant’s contacts ‘in the aggregate are extensive.’ The issue under the Due Process Clauses of the Fifth and Fourteenth Amendments is whether the contacts ‘are so continuous and systematic as to render [defendants] essentially at home in the forum.”). Or the 5th Circuit, Bowles v. Ranger Land Systems, Inc. 527 Fed. Appx. 319 (5th Cir. 2013).

                2. Which 2nd Circuit case were you relying on for that proposition?

                3. You’re right, I see my error. The Court declined to pass on the agency theory because it was irrelevant to their holding.

                1. #2

                  At the time, the primary Second Circuit case was Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000).

                  After Daimler, the Second Circuit in Gucci Am. v. Bank of China, 768 F.3d 122 (2d Cir. 2014) recognized that Daimler had overruled that precedent. (Daimler came out while that case was on appeal).

                  Notably, the Second Circuit observed:

                  “Prior to Daimler, controlling precedent in this Circuit made it clear that a foreign bank with a branch in New York was properly subject to general personal jurisdiction here.”

                  But Daimler, the Gucci court held, effectively overturned that precedent.

            2. BTW, I am not the only one who thinks Daimler was a major change.

              See here: https://www.americanbar.org/groups/judicial/publications/appellate_issues/2020/winter/personal-perspectives-on-personal-jurisdiction/

              To quote:

              Those who, like me, graduated law school before 2014 sometimes feel as if they have to forget everything and re-learn personal jurisdiction from scratch. This is because 2014 saw the Supreme Court decide two seminal cases on point: Daimler AG v. Bauman, 571 U.S. 117 (2014), and Walden v. Fiore, 571 U.S. 277 (2014). The Daimler case taught us that “general personal jurisdiction” operates much more narrowly than many of us had thought, and Walden had a similar effect on our understandings of “specific personal jurisdiction.”

              If you do a Google search, you will find many other similar sentiments.

            3. HEre is another one:

              The Daimler decision represents a sea change in U.S. law with respect to general jurisdiction, effectively eliminating “doing business” jurisdiction for out-of-state corporations and expressly rejecting the proposition that general jurisdiction is permitted “in every State in which a corporation ‘engages in a substantial, continuous, and systematic course of business.’”

              https://www.mayerbrown.com/-/media/files/news/2015/07/does-daimler-v-bauman-portend-an-end-to-madison-co/files/wlj_asb_3719_commentary_isaac/fileattachment/wlj_asb_3719_commentary_isaac.pdf

              1. Returning to the original discussion, your argument was that Ginsler, speaking on behalf of a unanimous court, reversed precedent (Helicopteros). While I doubt there’s any dispute that Daimler (and Goodyear before it) tempered and narrowed prior decisions (not Helicopteros, but Perkins), they’re not, in my view, great candidates for SCOTUS reversal of themselves. Which SCOTUS decision did SCOTUS reverse?

                1. You do know her name is Ginsburg, right?

                  Both Helicopteros, and Perkins that before it that it relied upon, recited “systematic and continuous” as the test for general jurisdiciton under the Due Process clause. One case found it lacking, the other that it was sufficient. But the test was the same test.

                  And that understanding had been applied in hundreds of federal and state cases since Helicopteros.

                  Daimler overturned that. The test is much more stringent now.

                  So yes, the SCOTUS overturned its prior holdings about what the Constitutional test for general jurisdiction is, one that, as you point out, went back to Perkins in 1952.

                  1. But Daimler didn’t reverse Perkins. The company in Perkins had its principal place of business in Ohio (because of Japanese occupation of the Philippines, its original place of business).

                    Do you think Goodyear was wrongly decided?

                    1. Not on its facts. The only connection the foreign companies had with North Carolina is that some of their tires regularly made their way into that state. That was not enough to satisfy the “systematic and continuous” requirement.

                      The problem is this sentence:

                      A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum State.

                      As far as Goodyear was concerned, that standard was not met. The foreign companies were not “at home” in North Carolina. So far so good.

                      But then the Court in SCOTUS interpreted “at home” to mean either the corporate headquarters, or state of incorporation. That is a major leap over the holding in Goodyear, and overturned 30 years of settled understanding of what “systematic and continuous” means. Operating a business with multiple branches in a state is “systematic and continuous,” even if the corporate headquarters and state of incorporation are elsewhere.

                    2. Sorry, I meant the Court in Daimler.

    3. “She is flatly saying she will disregard the Court’s prior interpretation of the Constitution and substitute her own.”

      You’ve selectively quoted what she said. She wrote in 2013 that she “tend[s] to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” That is very different than her saying “I will disregard the Court’s prior interpretation of the Constitution and substitute her own.” Further, she goes on to say almost immediately after the quoted portion:

      “Of course, constant upheavel in the law would disserve rule-of-law values insofar as it would undermine the consistency–and therefore the predictability–of the law. . . . Our legal culture does not, and never has, treated the reversal of precedent as out-of-bounds. Instead, it treats departing from precedent as a permissible move, albeit one that should be made only for good reason.”

      Cherry-picking quotes and then drawing broad assumptions from them is chicken-shit and no way to evaluate a judicial candidate. If you want to know what she said about stare decisis, read the entire 2013 article (Precedent and Jurisprudential Disagreement), and then read her subsequent, 2017 article on Originalism and Stare Decisis, which speaks at more length to the precise issue you’re harping about, namely what she’s going to do with precedent she might disagree with.

    4. Anybody who read her article would never call it a “bombshell”. The basic premise is that she argues in favor of “weak presumption [of stare decisis in constitutional cases in favor of a more stringent rule” because “it promotes doctrinal stability while still accommodating pluralism on the Court.”

      My God! What a radical! Everything she says in the article is mainstream constitutional jurisprudence. If you have a specific criticism of her position, I’m all ears.

    5. The only way that’s a bombshell is if the Court is infallible.

      The Court should throw out Raich, tomorrow, because it is complete nonsense that makes a mockery of the Commerce clause and extends unlimited Congressional jurisdiction to essentially all trade within states, just off the top of my head.

      “The Court should enforce the Constitution, not what previous Courts thought was politically expedient and strained to pretend was Constitutional” might not be literally anodyne (because people love their strained precedents, as long as they’re the Right Ones), but it has been the Court’s actual job since Marbury.

      1. Well, if the Dems inflate the size of the Supreme Court, we will end up with the Commerce Clause on steroids. The Federal government will have much more power over the states so that it will not matter if Republican (or non-aligned politicians) control a state government…Federal decrees will be all controlling.

    6. “for her to enforce her best understanding of the Constitution rather than a precedent she thinks”

      That is a bombshell, she totally disregards the writing convention that “he” is the default if the sex of the subject is unknown.

      Unacceptable in a conservative.

    7. ‘She is flatly saying she will disregard the Court’s prior interpretation of the Constitution and substitute her own.’ This assertion has no basis in fact, you have no way of knowing what Judge Barrett meant, and are quite simply engaging in wild speculation that you apparently see as fact.

  2. Good to know that she won’t declare paper money unconstitutional. No extremism there…

    1. Not that it isn’t unconstitutional, of course.

      1. Paper money is constitutional in theory, it is just issued by an unconstitutional entity now.

  3. This kind of speculation is useless at best and misleading at worst. The fact of the matter is that no one, probably not even Judge Barrett knows what she will do or say or decide until the situation arises. To say otherwise is to just try to bring clarity to a situation where clarity is not possible.

    This is simply a partisan writing trying to defend the indefensible, the concept that different rules apply to Republicans as opposed to Democrats.

    1. What’s indefensible, if nobody has any idea what she’ll do?

      (And note that this writing seems plainly meant as an antidote to the at-least-equally-baseless speculation that she’ll “Just Overthrow All Precedents As She Sees Fit” that’s mentioned in the intro?

      Not that one of nine justices can do that, though it’d be nice to see someone joining Thomas in his “The Constitution Doesn’t Say The Government Can Do That, FFS” dissents.)

  4. Shorter Whittington:

    “She likely wouldn’t join Thomas in the completely nutter one-person dissents, and probably wouldn’t rule that paper money is unconstitutional. So, all good, right?”

    1. I think the evidence available is that she will follow/ignore precedent to the extent of Scalia but not to the extent of Thomas. Scalia was unexceptional in his adherence/rejection of precedent. Weak stare decisis is mainstream. There may be good reasons for rejecting her to SCOTUS but her statements on weak stare decisis don’t rate.

      1. No, that’s not it.

        Look, I would love to have an intellectual conversation about the difference between strong (horizontal) stare decisis and weak (vertical) stare decisis, and the various factors that are used at the Supreme Court (pace, inter alia, Scalia’s analysis in concurrence in WRTL), and the issues regarding statutory and constitutional stare decisis.

        From there, we could then discuss the stare decisis continuum of Thomas – > Scalia – > Roberts, and why Thomas is the opposite of conservative jurisprudence, and why, despite Whittington’s endorsement, Barrett is closer to Thomas than to Scalia.

        That would be a legitimate legal discussion; the kind the VC used to have.

        But this isn’t that VC, is it? And Whittington’s various endorsements of Barrett don’t mean a whole lot to me; if she is confirmed, I am wholly supportive of expanding the Supreme Court and the lower appellate courts.

        1. “Look, I would love to have an intellectual conversation about the difference between strong (horizontal) stare decisis and weak (vertical) stare decisis…”

          I was using “Weak stare decisis” as she was using it in her 2013 law review article. Although that article discusses vertical and horizontal stare decisis, she was advocating weak stare decisis (Scalia-like) within horizontal stare decisis. I just mention that to make it clear what I was talking about, not at all saying you don’t understand something. I’ve heard strong and weak used in the context you used it as well, I just wasn’t using it like that.

          If Barrett is more like Thomas than Scalia, I’m willing to have that discussion with you and look at any evidence. For discussion purposes, I’ve sifted through her 2013 paper (but by no means gone line by line) and have read her 2017 paper. I think both evidence more Scalia than Thomas but am happy to be talked out of any position.

          For court expansion, I think it would be a political mistake for the Democrats to expand the court should they win the presidency and the Senate (and keep the House), regardless of whether Barrett is confirmed. Unilateral disarmament is the only way to win this political war, in my view.

          1. People often take Scalia’s comments about being a faint-hearted originalist, or view him in a lens similar to Thomas, yet overlook his actual jurisprudence when it comes to stare decisis. He is closer to Rehnquist than to any other justice I can think of when it comes to s.d. That is to say that while he often builds an originalist scaffolding in addition to prior jurisprudence (such as, famously, Crawford and c.c.) and uses it originalism and textualism as a lodestar for his analysis, he continues to be mindful of the values of s.d. when doing his analysis.

            That is not the case with Barrett, based on her scholarly writings. Ignoring horizontal (because, really, who cares – once you are on SCOTUS, you get to make the rules), her focus has been on “Okay, but how can we make this work, sometimes?” She acknowledges that there might be times when there are reliance interests are so high that the case becomes akin to “super-precedent” (a la paper money in 2013 or her analysis of Scalia in 2017) – but that’s meaningless; similar to Scalia’s invocation of a precedent that is deeply embedded in our national culture (Dickerson/Miranda).

            That’s how you can see the cheat in 2017 article; it doesn’t even accurately note Scalia’s position. Scalia is much more respectful of S.D. than the article states, and it allows Barrett the wriggle room to say that she can and does respect “super precedent” (which ones?) without any particular analytic framework; something even Scalia would not approve of.

            It’s bunk, all the way down, and only means that Barrett, unlike Thomas, would at least have some modicum of restraint; but not any real self-imposed restraint (unlike Scalia, who did, in fact, practice restraint). In fact, based solely on the inaccurate characterizations in the 2017 article, you know that Barrett has a much more dim view of horizontal S.D. than does Scalia.

            And no, if the GOP decides to go forward with this attempt to completely politicize SCOTUS, then everything is, and should be, fair game.

            “Hey, I just killed your family. How about NOW we call a truce?”

            1. “Hey, I just killed your family. How about NOW we call a truce?”

              That is not an argument; it is a cheap and transparent propaganda trick.

            2. What specific claim in the 2017 article do you think misrepresents Scalia’s position?

              I think your analogy is inapt for two reasons. First, you’re describing a blood feud. I’m not sure that’s a good comparison for political fights, but even assuming it is, unilateral disarmament is the only way to end a blood feud. (If you respond by killing the other side’s family, they will respond in kind, and the fight will go on until both sides are exterminated. Existential disputes are the ones best responded to by unilateral disarmament, which is why that strategy more quickly resulted in nuclear disarmament than did bilateral agreements that postpone the problem to today.) And since politics is about convincing people to join your cause, it’s unlikely you’ll convince voters to take up with you by proving you’re just as craven as the people you say they shouldn’t vote for.

              More theoretically, you can’t “win” a political fight by emulating the worst aspects of your opponent. Conceding that might makes right in politics means there is political high ground. And if there is no political high ground, there’s nothing to be won by shifting strategies, anyway.

            3. >>And no, if the GOP decides to go forward with this attempt to >>completely politicize SCOTUS, then everything is, and should be, >>fair game.

              This will eventually become Woke Federalism Triumphant. The Federal government will have the power to right all wrongs with racism being the ultimate wrong. Once state governments are brought into line, maybe we can enact Ibram X. Kendi’s Anti-Racism Amendment. The country will become a multi-cultural paradise…at least by the woke definition.

              https://www.politico.com/interactives/2019/how-to-fix-politics-in-america/inequality/pass-an-anti-racist-constitutional-amendment/

  5. I watched the opening of her hearing this morning and Senator Feinstein spent her statement on extolling the virtues of Obamacare and expressing an opinion that it should not be overturned. It was a combination campaign speech and argument, although not a legal one.

    1. All of the Senators are speaking to the camera, and not speaking to the nominee. What did you expect? The entire confirmation process is pure kabuki.

      1. All senate hearings are theater.

  6. Who’s kidding who?

    It’s not like Lawrence, Obergefelle, or Bostock were particularly respectful of precedent.

    When a third of the country has demonstrated they will vote for literally anyone willing to overturn a precedent, a precedent that never had any roots in the constitution’s text to begin with, that’s a sign the precedent has become dangerous to the stability of the country.

    You can’t claim the institution is legitimate only when it reaches results you like. Nor can your life looking to belly button for penimbras and emanations without regard to anything that is going on in the country.

    Overturning Roe is as legitimate (and indeed neccessary) an act of institutional self-preservation as anything the Supreme Court has done in recent years.

    If the Supreme Court doesn’t to become a House of Lords with new justices churned out like sausages whenever they don’t do what the political branches want, the justices need to stop pulling devisive policy ideas out of their asses and bullshitting that that’s what the constitution says.

    I’m sorry. But the bullshit really has to stop if the country isn’t to be plunged further into chaos and division. Nobody believes the Justices anymore when drone on so dreerily aboit their naval-gazing. Nobody believes their bluff that their personal policy preferences are foundational law. The bluff has been called. It just has to sink in. The court has to accept this and move on from it, or worse could follow.

    The left might consider it bad luck that there were three vacancies within a single Repuican presidential term, two for members of the previous reliable 5-4 liberal majority on key social issues. In many ways, the reverse is true. It was luck that something like this didn’t happen years ago. It was simply inevitable that at some point there would be vacancies during a Republican administration, and majority of the court’s justices would become conservative.

    1. “The left might consider it bad luck that there were three vacancies within a single Repuican presidential term”

      That’s the problem. There weren’t. There were two. Remember?

      And then we get to the whole EC issue. Because, again, in the last seven presidential elections, the Democratic Party has won the popular vote in six (!) of them.

      “It was simply inevitable that at some point there would be vacancies during a Republican administration, and majority of the court’s justices would become conservative.”

      Huh. You say inevitable, others might say that when one party continues down a path towards destroying democratic norms, there is no longer legitimacy in the system that they are abusing.

      1. “Huh. You say inevitable, others might say that when one party continues down a path towards destroying democratic norms, there is no longer legitimacy in the system that they are abusing.”

        Another emotionally charged bit of sophistry. Should the Harris-Biden ticket win. Harris will likely have the opportunity to name three Justices during her 10 years as POTUS. And that all without court-packing.

      2. Policy differences are hardly “destroying democratic norms,” unless you are confusing the Democratic party with democracy itself.

        This country is close to evenly divided on many policy issues. Democracy requires accepting the legitimacy of that division.

        The kind of mentality that regards the election as stolen whenever you lose is hardly a democratic mentality.

        Each state’s equal suffrage in the senate and right to appoint its electors as its legislature sees fit is a foundational principle of the country. This country is a union of states, not just individuals. That fact creates natural conservative tendencies, tendencies that can be overcome but not without effort. It’s part of the design.

        If you don’t accept these basic constitutional limitations as part of the world you have to work in and accept that you will have to come up with a strategy to work within them, than you don’t accept the legitimacy of your country.

        And if you really think majority-rules democracy is the touchstone of legitimacy, how could you object to overturning Roe v. Wade? Overturning it will simply return to majority-rules democracy. Laws on abortion, likely different ones in different states, will then be legitimate laws.

        You can’t demand democracy whenever it suits you, and then call it illegitimate whenever it doesn’t go your way.

      3. There were three vacancies when the opposing party (the Republicans in this case) controlled the Senate. If the Dems had stuck with the confirmation rules as they were prior to 2001, they probably would not be in this mess. Still, the opposition party has no duty to rubber stamp a lame duck president’s nominee.

        1. In fact, we’ve already established from the historical record that a lame duck’s nominee normally would NOT be confirmed, or even get a vote, if the opposing party controlled the Senate. Far from being a violation of norms, what the Republicans did WAS the norm.

    2. Of course Lawrence reversed Bowers But what precedent did Obergefell and Bostock not respect?

        1. True. But, a one-line summary holding there wasn’t a substantial federal question is not much of a precedent.

  7. “Amy Coney Barrett Is No Extremist on Stare Decisis”

    Pity.

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