The Volokh Conspiracy

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The Volokh Conspiracy

The Original Meaning of "Subject to the Jurisdiction" of the United States

It meant under the authority of U.S. law, thus excluding foreign diplomats, foreign armies and (at the time) Native American tribes.

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In this post I'll consider the original meaning of the second requirement of the Constitution's citizenship clause: that a person be born "subject to the jurisdiction" of the United States. (More detailed discussion and citations can be found in Part II.B of my forthcoming article.)

As noted in my introductory post, writers such as John Eastman and Michael Anton claim the original meaning of "subject to the jurisdiction" excludes from citizenship the U.S.-born children of temporary visitors and undocumented migrants (and, perhaps, of all alien parents). I think they're clearly mistaken.

I'll start with a methodological point. Much past debate on this subject has focused on parsing the clause's drafting debates or speculating about the drafters' intent. These matters may be worth considering, but they shouldn't be the starting point. Instead, we should start with the text and with the contemporaneous meaning of the key phrase.

The citizenship clause's text begins, as discussed in my prior post, with the requirement of birth "in the United States." It then adds the further requirement of birth "subject to the jurisdiction" of the United States. So our inquiry is framed as: in the nineteenth century language and context in which the clause was written, who was in the United States yet not subject to its jurisdiction?

As with the first part of the clause, Chief Justice Marshall provides a good beginning. In Schooner Exchange v. McFaddon (1812), writing for the Court, Marshall discussed "a nation's jurisdiction," which he equated with national sovereign authority. Generally, Marshall said, a nation had jurisdiction over all people and things within its territory. But there were three exceptions, which he listed: foreign sovereigns themselves, foreign ambassadors and foreign armies. These exception apart, though, Marshall emphasized that aliens within sovereign territory were otherwise "amenable to the jurisdiction" of the United States (meaning governed by U.S. law).

Henry Wheaton, the leading nineteenth-century American writer on international law, described national jurisdiction in a similar way, using the phrase "subject to the jurisdiction." Ordinarily, Wheaton wrote in Elements of International Law (1836), a nation had "jurisdiction," meaning "sovereign power of municipal legislation," within its territory. But, he continued, foreign ambassadors and their households had diplomatic immunity under international law and so were "excluded from the local jurisdiction." Immunity thus was an exception from the territorial jurisdiction to which they, as aliens within sovereign territory, would otherwise be subject.

There was another category of people described in the nineteenth century as in the United States but not subject to U.S. jurisdiction: tribal Native Americans. This sounds odd to modern ears because the U.S. claimed ultimate authority over the tribes. But the U.S. commonly (at the time) entered into treaties guaranteeing tribes authority over internal matters, including governance of tribal members. Some treaties expressly referred to tribal "jurisdiction." And key nineteenth-century writers such as James Kent described the situation (in Goodell v. Jackson, 1823): "Though born within our territorial limits, the Indians are considered as born under the jurisdiction of their tribes."

The nineteenth-century idea of national jurisdiction was interrelated with citizenship law. Prior to the Fourteenth Amendment, citizenship law was mostly common law, and U.S. common law tracked the British principle of jus soli (birth within sovereign territory). A longstanding exception to jus soli citizenship was the children of diplomatic households, who were not U.S. citizens although born in U.S. territory. A similar exception existed (in theory) for children of foreign armies, again arising from their exclusion from U.S. jurisdiction; Justice Story, for example, directly linked these ideas in describing citizenship law in Inglis v. Trustees of Sailor's Snug Harbor (1830). And likewise, Native Americans were not treated as citizens if they were born within tribal society because, as Kent explained in the passage quoted above, they were under the jurisdiction of the tribes, not the jurisdiction of the United States.

Also consistent with the idea of jurisdiction, the U.S.-born children of aliens (other than diplomats and armies) were considered U.S. citizens. In McCreery's Lessee v. Somerville (1824), for example, the Supreme Court (per Justice Story) treated as uncontroversial the U.S. citizenship of the U.S.-born child of Irish alien parents. In Lynch v. Clarke (1844), a New York court directly held that U.S.-born children of alien temporary visitors were U.S. citizens.

Thus when the Fourteenth Amendment's drafters picked the phrase "subject to the jurisdiction," it had an established meaning that was already closely connected to citizenship. The first part of the citizenship clause ("born in the United States") adopted the territorial principle of jus soli. The second part embraced the longstanding exclusions from the jus soli principle: people in U.S. territory but nonetheless not under U.S. sovereign authority, namely diplomats, foreign armies and tribal Native Americans, who had not traditionally been born citizens.

The Senate debates, where the citizenship clause was developed, bear this out. Initially, the proposed Amendment guaranteed rights to citizens without defining citizens. Senator Wade pointed this out and suggested guaranteeing rights to all persons born in the United States. Senator Fessenden objected that some U.S.-born people were not citizens under existing law (which Wade acknowledged, mentioning ambassadors). Senator Howard then proposed the language that became the citizenship clause, describing the "subject to the jurisdiction" language as excluding children of ambassadors.

Senators next debated whether Howard's language continued the exclusion of tribal Native Americans from citizenship (which they favored). Howard said that it did, adopting the prior explanation that U.S. laws didn't extend to the tribes' internal affairs. A revision to expressly exclude tribal members was defeated as unnecessary.

Finally, the Senators considered the citizenship of U.S.-born children of aliens. Senator Cowan objected (in overtly racial terms) that the proposal would make citizens of U.S.-born children of Chinese immigrants on the West Coast. California Senator Conness (himself an Irish immigrant) agreed it would have this effect, but enthusiastically endorsed it. No Senator disagreed with the Cowan/Conness interpretation, including Howard (who wrote the clause) and Senator Trumbull (who originally introduced the proposed Amendment). Indeed, in an earlier exchange with Cowan, Trumbull said that U.S.-born children of Chinese immigrants (like all U.S.-born children of immigrants) should be considered citizens. And the Senate then adopted Howard's language without further revision.

Thus, as with the first part of the clause, the drafting history confirms the pre-drafting ordinary meaning of the relevant language. "Subject to the jurisdiction" of the U.S. meant people under U.S. sovereign authority. That included everyone within U.S. territory, excluding only foreign diplomats, foreign armies and native tribes. (As shown by the Court's decision in Fleming v. Page, discussed in my last post, it was possible to be subject to U.S. jurisdiction outside U.S. territory; anyone in this category would be excluded from citizenship by the first part of the clause).

In my next post, I'll discuss why this original meaning includes the U.S.-born children of undocumented migrants, and consider some leading counterarguments.

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  1. I think you need to go into more detail about the exception for foreign armies.

    Are we talking invading foreign armies, present against the will of the US government? A class that is at least analogous to illegal aliens, even if some people quibble about using the term “invasion” to describe people not wearing uniforms.

    Or are we talking foreign troops present with the consent of the US government, for joint training or security at diplomatic compounds, which would be analogous to diplomatic personnel?

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Today in Supreme Court History

Today in Supreme Court History: October 28, 1787

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10/28/1787: James Wilson gives speech to the Pennsylvania ratification convention about the need for a Bill of Rights.

Justice James Wilson

Free Speech

Narcos TV Show Doesn't Infringe Virginia Vallejo's Memoir

A good illustration of a basic principle: Facts are not protected by copyright.

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Virginia Vallejo sued Narcos Production LLC, Netflix, and Gaumont Television USA LLC, claiming that two episodes from Narcos were substantially similar to parts of her memoir of her affair with Pablo Escobar. No, said an Eleventh Circuit panel (Judges Bert Jordan, Britt Grant & Robert Luck) today in Vallejo v. Narcos Productions, because there's no copyright in facts:

"[C]opyright protection extends only to an author's expression of facts and not to the facts themselves." An author "may not claim that the facts are original with him although there may be originality and hence authorship in the manner of reporting, i.e., the expression, of the facts." "[T]he mere use of the information contained in a [work] without a substantial copying of the format does not constitute infringement." A person who reports new facts for the first time cannot claim copyright protection in the further dissemination of those facts….

Ms. Vallejo has repeatedly admitted that the facts reported in her memoir are true…. Ms. Vallejo has copyright protection in the way that she set her "characters, theme, plot, setting, and mood and pace." … [But] we conclude that the defendants used unprotectable facts from Ms. Vallejo's memoir and did not copy her expression of those facts because the plot, setting, mood, and the characters' interplay are not substantially similar….

Ms. Vallejo also contends that the district court failed to recognize the legal distinction between historical and non-historical facts in assessing whether the facts she reported in her memoir should be given copyright protection. Essentially, she asserts that so-called historical facts lack copyright protection because they are newsworthy and that so-called non-historical facts are protected by copyright law because they are personal. We are not persuaded by Ms. Vallejo's distinction.

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  1. Interesting.

    How does this tie in with situations where a non-famous person is involved in a noteworthy event, and then sells the rights to his story? If the facts of his story aren’t protectable, what is the buyer of the rights to the person’s story getting?

    1. 1. First, there’s nothing illegal about paying for news. It isn’t generally done by journalists, but publishers certainly do it.

      2. While facts aren’t copyrightable, particular expressions of facts could be.

      Here’s an example, from an actual screenwriter. Pablo Fenjves, who testified as a witness at the OJ trial and later ghost-wrote OJ’s confession, “If I Did It”, referred to the barking of Nicole’s dog, on the night of the murder, as a “plaintive wail”. The fact that Fenjves heard the dog barking after OJ committed the murders is not copyrightable. It’s a fact. But a book full of literary descriptions a la “plaintive wail”, or a treatment, or a screenplay, or even a recording of Fenjves expressing them, could be copyrightable so long as it contained sufficient and sufficiently original expressions.

    2. They are getting that persons private intimate account of the thing.

      1. Right. They are paying for the disclosure, which the person is free to not disclose. But, yes, someone else can then take the same facts and publish them in a story without paying anything.

  2. So, if the “non-historical” facts that, apparently, no one else knew about were not facts but made up, then she would have had a case?

    1. Maybe. Although if she had earlier claimed the facts were true, that could be used to impeach her claims.

      And that also relates to something copyright holders really did, especially in the years before the Feist case held that compilations of data were not copyrightable.

      What they used to do was intentionally insert erroneous information into those compilations. So they would add some phony names to the phone book, with phony addresses and numbers. That’s how they caught people copying the white pages.

      1. “What they used to do was intentionally insert erroneous information into those compilations”

        This was done in other contexts, with sometimes hilarious results. Mapmakers would add in fictional road connections, and drivers would sometimes end up in the middle of a swamp.

    2. Actually, no. There’s a doctrine called the “asserted truth” doctrine, sometimes called “copyright estoppel,” that says that you can’t publish a purportedly truthful account, secretly include some made up facts, and then play gotcha and sue someone for infringement when they copy them.

      1. That’s right, but only if the author actually asserted truth.

      2. George Carlin objected to the use of the term “road rage” because he just wanted a general, all-purpose rage for use on the road and off it.

        By analogy, why should we have copyright estoppel instead of just a general, all-purpose estoppel?

  3. Forgive neurodoc for going a bit OT, but…

    Who knows how hippopotamuses, an animal not native to the Western Hemisphere, came to range freely and prosper to this day in Colombia, a country better know for the legendary Juan Valdez and his trusty mule?

    1. Escobar, that crazy hippo-loving drug kingpin.

  4. He should be happy about that. Narcos is a story that has been told, and told better, many times already.

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Free Speech

Criminal Libel Conviction Over Fake-Name Online Reviews

An interesting new case from Wisconsin.

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As I've written before, criminal libel statutes remain on the books in about a dozen states; if they are narrowly focused on knowing defamatory falsehoods, I think they are constitutional (see this post for more details), and my research so far suggests that they are enforced likely about 20 to 30 times a year. They tend to be especially common in Wisconsin, as Prof. David Pritchard discussed in his Rethinking Criminal Libel: An Empirical Study, 14 Communication Law & Policy 303 (2009), the article that opened my eyes to this phenomenon.

I just ran across a recent prosecution, from June 29 of this year (just posted to the Lumen Database on Oct. 7), and I thought it worth passing along; I'd love to hear what people think about it.

The defendant, Yuri Olegovich Burrows, pleaded no contest, and was apparently sentenced to 9 months in jail (based in part on having a criminal history, namely a 2014 conviction on three counts of violating a harassment restraining order). Here are the facts alleged in the prosecutor's statement, based on statements from police officers; they are a bit confusing, but I think they paint a clear enough big picture of the allegations:

Attorney Ted Warpinski … stated that his business was getting several negative reviews, one of which had an account photograph picturing a friend of his, Bradley T. Zielinski. Ted stated he had asked Zielinski if he had anything to do with the negative review and Zielinski stated he did not. Ted stated he later found that someone had used one of his previous client's name and photographs to leave a different negative review. Ted identified that client as Phillip Endminster….

Ted explained that he was having issues with a former client of his, Yuri O. Burrows …. Ted stated that Burrows was upset with the outcome of his divorce case. Ted had forwarded to Lt. Belanger a letter from Burrows to Ted's assistant, Karen, stating, "Karen, Please pass this to Ted and Mark Warpinski. I just spoke with Donna Rolls. If I find out you hacked my Facebook, and I will find out, some crapy (sic) reviews for your business will be the least of your problems. My review was fair and met Google guidelines. I took it down nonetheless. You already took my kids away from me. What the hell more do you want? Let me move on with my life. AND you better not involve Donna. Her and Phil are retired and trying to live a peaceful life. -Yuri Burrows." …

Ted believed Burrows had created fake accounts under Ted's old client's names to create more negative reviews and making it appear that more clients were dissatisfied with Ted's services….

Zielinski … confirmed that he did not leave the negative review and did not know who would have left the review under his name….  [Endminster did the same.] … Endminster also had screenshots of a negative review that was left using his fiancé's photograph under a different name….

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Class #19: Due Process Clause I and Zoning III

Lochner, Muller, Buchan, and Adkins

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Class 19: Due Process Clause I: "Economic" Liberty in the Progressive Era

  • Using the Due Process Clause to Protect "Economic Liberty" (904-905)
  • Lochner v. New York (905-918)
  • Buchanan v. Warley (924-929)
  • Muller v. State of Oregon (930-933)
  • Adkins v. Children's Hospital of District of Columbia (934-941)

Class 19: Zoning II

  • Nonconforming uses: Pennsylvania NW Distributors v. Zoning Hearing Board, 915-923
  • Variances: 923-928
  • Special Exceptions: Cope v. Inhabitants of the Town of Brunswick, 928-931
  • Zoning Amendments: State v. City of Rochester, 931-935

Parental Rights

The "De Facto Parent" Doctrine and Polyamorous Relationships

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Lanfair v. Ruggerio, decided Oct. 16 by the Vermont Supreme Court (in an opinion written by Justice Carroll), offers an interesting illustration. The relationship seems to have been dysfunctional in many ways (as relationships that go to court usually are); and I have no reason to think that it's any more representative of all polyamorous relationships than the "traditional" child custody case is representative of more common heterosexual relationships. Still, it struck me as an interesting story that helps point to issues that will sometimes especially arise when courts deal with polyamorous relationships, as opposed to (say) "de facto parent" claims brought by stepparents or even by grandparents.

J.F., born in January 2015, is the biological son of mother and father. {Father did not participate in this appeal.} Mother is forty-one years old and works as a high school teacher. Plaintiff was a high-school student of mother during 2011-2012 and 2013-2014. Because plaintiff came from an abusive household, she relied on mother for moral support.

When plaintiff turned eighteen, she was kicked out of her home, and mother offered her a place to stay. Plaintiff accepted and moved into mother's and father's home in the fall of 2014. Mother was pregnant with J.F. at the time. Plaintiff paid $100 a month for utilities and helped with chores. Two weeks after moving in, plaintiff left the home to attend college in northern Vermont. She returned on the weekends.

Between the fall of 2014 and March 2015, plaintiff and father developed a romantic relationship, which turned into a sexual relationship. At some point thereafter, mother was invited into the relationship. Although mother accepted the invitation, the primary relationship remained between plaintiff and father. For example, mother tried to set up dates with father, but father thought it was unfair to make plaintiff stay home with J.F. Father and plaintiff occasionally went on dates in the evenings, however, and when they did, mother stayed home with J.F.

Nevertheless, the three of them slept in the same bed and eventually got matching tattoos and rings. There was concern, however, that the nature of the polyamorous relationship would ruin mother's career as a high school teacher. Due to this concern, the parties agreed to keep their relationship secret.

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  1. This kind of soap opera is only going to get more interesting.

    It’s also an area which SF treated too simply. There have been plenty of polyamorous SF stories, but they never got down into the weeds like this.

    1. Actually, many of the elements are similar to the types of crap that traditional heterosexual parents do to each other when they get divorces. The poor kids become pawns in the parents’ disputes. This is so standard, and the only thing non-standard about this was that this was a throuple.

      1. Although in this case it appears that the non-parent component of the couple is the one making the kid a pawn.

      2. I’m not even sure it was really a “throuple” as opposed to a plural marriage or sister-wife type situation. Seems like the new girl started hooking up with the husband, and the wife and new girl were just friends.

  2. Absolom, Absolom! made for TV version. God be with you J. F.

  3. So five days a week the mother spent 5 hours a day maximum with the child (taking out 8 hours the child and adult are both asleep, 8 hours for the time she spent at work, and a minuscule 1 hour for commutes/lunches/breaks). On weekends she would spent 16 hours a day with the child. That adds up to 57 hours a week for the child.

    The Plaintiff on the other hand spends 9 hours minimum every weekday caring for the child for 45 hours a week.

    Time spent parenting appears to be roughly equal. It seems that the judges could have just as easily stated that the mother is acting in the role of a nanny as she had a set schedule to care for the child and did not attend the child’s medical appointments (a.k.a. the events were important decisions about the childs health are made. A role generally held by the parent.).

    1. Yes, let’s ask the courts to take judicial notice of all the Brits who worshipped their Nanny, (what did Churchill say?). I’m not being facetious, force the courts to study relationships from Biblical times forward. We all want what is best for the child. Many mothers could not be bothered with their children. Place courts in charge from birth
      the Nanny State.

    2. “It seems that the judges could have just as easily stated that the mother is acting in the role of a nanny…”

      Except that the mother was in fact the mother.

    3. Except the mother was setting up and going to all the medical appointments….

      If the mother was late getting home, the nanny got upset because she was watching the kid “too long”…

      The nanny left the kid with the mother to chase after the father…

      The Nanny was going on dates with the father, leaving the kid at home with the mother. The opposite “wasn’t fair” said the father.

  4. DRAMA!!!

  5. This kind of silliness is going to continue until there is a Lawrence-like decision recognizing and de jure legalizing muli-person civil unions (marriages) and BDSM relationships.

    1. Seems unlikely. Strange political bedfellows would be against it. Hardcore feminists view plural marriage of any sort as harmful to women, and conservatives, especially ones who read their Old Testament, know that they are not so good either.

      1. If two homosexuals deserve “enoblement” and the “dignity” of state licensing schemes, then surely three normal people do too.

        1. I’m not saying the legal and moral arguments don’t exist for such a thing happening, but just that I don’t think the political support is there for it. Feminists think that every woman in a plural marriage, the kind some Morman’s have, is a victim. And conservative Christians I think with this gay marriage bit, are not going to try to kick Lucy’s football again…at least on this cultural issue.

          1. Since when does political support dictate gay rights?

            There was a majority political support for natural marriage, but that didn’t matter to that gay judge in California, or to SCOTUS.

            1. By the time Lawerance and later Obergerfell were decided by the courts the way they were, they were already behind the culture…merely catching up. That doesn’t make them good decision, btw. They were terrible ones. Social change should come from the legislature in a democracy. But, the culture was there before the courts were, and the legislature would have been there soon enough. The GOP punted to the courts to make the change they didn’t want to be seen holding back.

              1. ” Social change should come from the legislature in a democracy. ”

                It’s true, Heller/McDonald, Parents Involved, Citizens United, etc., terrible decisions.

                1. I’ll note that the left does not believe in stare decisis for those cases.
                  It does depend on whose ox is being gored.

                  1. You mean they don’t believe in stare decisis for cases which they think violated stare decisis?

        2. You have to love those arguing for a monopoly on ‘state licensing schemes’ for people like themselves accusing others wanting in on that as being petty in some way.

          1. If the State is in the business of conferring dignity.

            Who doesn’t deserve that dignity? I mean, how can the State tell a single mother that two gays in love are better than her?

    2. Or disestablishing state sponsored marriage allowing anyone to marry anyone else in any way they see fit. The Courts can then expend their time on making the kids don’t get taken advantage of.

      1. Do you think that there is a societal stability that is inherently helpful for there to be two parent families, one parent of each sex as a child needs the influence of each sex?

        1. In our post-modern society, the time has come to recognize that multiple and BDSM relationships are as much orientations as gay relationships. The alternative is old-fashioned bigotry.

          1. Is this serious, or satire. I cannot tell. No offense.

              1. Don’t understand what you mean by a “BDSM relationship.”
                (And I fully understand what “BDSM” itself means.)

                If it’s a two-partner relationship, they can already get married if that’s their wish. If it’s a multi-partner relationship, then that’s more complicated but it falls into the same bin as plural marriages in general. The specific arrangement, or “power sharing” dynamics, between the participants is not material to the legal status of the relationship.

                Interestingly, my evangelical sister and our new conservative justice are both in deeply religious, heterosexual marriages with strict power sharing rules without (I presume) the BDSM. So, I don’t even think the power sharing aspects of BDSM are that unique or different than existing “traditional” marriage.

                1. I meant a 24/7 dominant submissive relationship, with or without safewords as the partners wish.

                  1. I should have added that if BDSM activities are included, that is almost certainly a disqualifier in custody battles etc.

                    Simple power sharing in St Paul’s sense of wives been subject to their husbands is not what I meant.

            1. I’m serious. I’ve always believed that what people do in the bedroom as long and they are adults and willing is fine with me. If they want to live together as a family that’s fine as well. American history is littered with communal lifestyles, some involving sex and some not.

          2. Alito and Thomas feel strongly that the law (Oberegefell) should not set up illiberal troglodytes like themselves to be seen as old-fashioned bigots.

        2. Do they need the influence of each sex as parents, or is it important to have siblings from each sex? How much more important is it to have the influence of each sex as it is to have influence of, say, different races/ethnicities and such? How does the fact that the number of heterosexual but eventually single parent families, widowed families, etc., is > than the number of homosexual unions wanting/having children figure into this?

          1. It’s always sad when a child doesn’t have their mommy and daddy.

            1. Sometimes a lousy mother or substandard father is the child’s most severe problem.

      2. Or disestablishing state sponsored marriage allowing anyone to marry anyone else in any way they see fit.

        While also disestablishing, I presume, any state-sponsored benefits of marriage. Particularly ones that involve moving money from my pocket to yours based on your self-declared “marital” status.

        1. Yes the tax code could become marriage neutral. Division of property might be a stumbling block, but it seems to be already.

          Given that the number of children born outside marriage today is approaching 50%, the courts are used to dealing with these kinds of messy relationships.

          Many people, especially people of faith, would still choose to get ahead with a religious ceremony whether Christian, Jewish, Muslim, Hindu, Budhist, Scientology or Pastafarian. They could stay married for a long time and probably even go though religious divorces and property settlements.

          1. That would be best all the way around

            1. As a longtime victim of the “marriage tax”, I thank you for your support.

  6. “It seems that the judges could have just as easily stated that the mother is acting in the role of a nanny…”

    Except that the mother was in fact the mother.

  7. I hope J.F. overcomes the clustermuck that is the ostensible adults currently associated with J.F.

    When you reach 18, J.F., leave and never go or look back.

    1. On this, we agree.

      1. What Rev doesn’t seem to get (though he might) is that J.F. is a victim of the sexual liberalism that he defends. Now, maybe the answer to rampant fatherlessness in the black community and sexual abuse by homo-predator priests and Boy Scout troop leaders isn’t some form of sexual fundamentalist conservatism, but still, the consequences of the horses leaving the barn are viable in this FUBAR of a case.

        1. JF won’t be a victim as long as the mom wins the case. I have the impression that she was at best a half-hearted participant in the arrangement. And then because of societal prejudice the agreement had to be kept secret for fear of her losing her job.

        2. You prefer Strom Thurmond-Donald Trump-Roy Moore-Dennis Hastert-Newt Gingrich “family values” sexual standards, mad_kalak?

          1. I guess you prefer when Joe Biden gives you the finger. Ask his many unwilling victims.

        3. Of course homo-predator priests is a result of all that sexual liberalism going on there…

          1. That comment being off topic. But If off-topic does not deter Kirkland, it should not deter you.

  8. While mother was at work, plaintiff and father cared for J.F. At the time, father did not work

    Quark: “In this holodeck simulation, you are the bull stud of your own harem.”

    1. Pretty clear who was being taken advantage of in this arrangement,

    2. Unemployed married man manages to add a teenager to his harem while convincing his wife to continue to pay the bills.

      Frankly it is amazing.

  9. Seems like everyone is forgetting the kid. Maybe social institutions are there for both the stability of the “village” and for the youngster. But we are at the point where why not legalize polygamy. It will be a social experiment and in 20 years we will know why it wasn’t such a good idea just like keynsian economics or neoconservatism

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Judge Torruella, the Lone First Circuit Judge in Puerto Rico, Passed Away

There is no statutory requirement that his successor must reside in Puerto Rico.

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On Monday evening, Judge Juan Torruella passed away. He was the lone First Circuit judge who resided in Puerto Rico. Indeed, he was the only person to ever hold that position. The judgeship was created in 1984 (See Section 201, 98 Stat 333). Given the rapid pace of judicial appointments, it is likely that President Trump will be able to fill this vacancy before January 20. And given that Puerto Rico has no Senators who could withhold blue slips, the process should be speedy.

Is President Trump required to nominate someone who resides in Puerto Rico? The answer is no. It is a common myth that Circuit Court judgeships are attached to a specific state. They are not. They belong to the Circuit. 28 U.S.C. § 44 provides that the First Circuit shall have six active judgeships. That statute only requires that a "circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service." There is no requirement that the circuit judge reside in any given state. The First Circuit covers four states: Massachusetts, New Hampshire, Rhode Island, and Maine. As things stand now, there are two judges from Massachusetts (Lynch and Barron), one judge from New Hampshire (Howard), one judge from Rhode Island (Thompson), and one judge from Maine (Kayatta).

If Judge Lynch decided to move to New Hampshire, that would be perfectly permissible. But it would not be possible for both Judges Lynch and Barron to move out of Massachusetts. Why? Section 44 provides that "In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit." There has to be at least one judge in Massachusetts.

But, Puerto Rico is not a state. (For now at least). And there is no requirement that there should be a circuit judge from Puerto Rico. Therefore, the President could nominate a judge from anywhere else in the First Circuit.

I'm not sure what would happen if Puerto Rico becomes a state. Given this statute, there would have to be at least one judge in the new state of Puerto Rico. But who would have to move? I don't think Congress anticipated that consequence in 1984.

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  1. Baruch Dayan Ha’Emet Judge Juan Torruella.

    May his soul be bound up in the bond of eternal life.

  2. In related news, Judge Juan Torruella, the first (only) Hispanic judge to serve on the First Circuit (which covers Puerto Rico) passed away.

    He was an excellent and thoughtful jurist, and, famously, an Olympic athlete (competing in four …. 4! …. Olympics … in sailing, but still).

    Judge Torruella was originally nominated by Gerald Ford to serve on the District Court (D.C. Puerto Rico). An appointee of Ronald Reagan, Judge Torruella was the first Puerto Rican to serve as a judge on the circuit court bench.

    He will be missed.

    1. What do you mean “In related news. . .”?

      That is the main topic of the post.

      1. *whoosh*

        Really? That was the MAIN TOPIC of this post?

        I had the distinct pleasure of having a law professor who was of Puerto Rican heritage, and getting to know him on a personal basis. I learned a fair bit about cases that were of little interest to most law students, and, for that matter, learning about Judge Torruella and what an amazing jurist (and person) he was in general, and how important and influential he was to the Puerto Rican legal community.

        So I was saddened to learn of his passing, yet completely unsurprised to see that Josh “What are human emotions??” Blackman used this as an opportunity to say, “Hey, guy died … now, did you know that we don’t have to have one of those Puerto Ricans as a judge? GO TRUMP!”

        1. “It is likely that President Trump will be able to fill the vacancy” is not exactly “GO TRUMP!”, though I wouldn’t have bothered to mention it myself. [Might be simply echoes of the fights over the Barret nomination.]

          The “main topic of this post” was really the rules around district judge nomination, not How Great And Interesting This Judge Totally Was Did You Know He Was An Olympian?

          (Or “he was hispanic!” and “so influential on the PR legal community”, for that matter.

          You have some personal-ish connection to him via your professor and care about those things, which is right and proper and fine. Nothin’ wrong with any of that, nor posting about them to add depth to his bio.

          But nobody else, especially Mr. Blackman is required to care about any of them, however, especially if they never knew or interacted with the man.

          People without those connections are perfectly correct in not indulging in eulogy when they’re talking about the rules of the circuits, and the process of filling vacancies.

          A person of legal training ought to know that and how that works.)

          1. There is no requirement, ever, to do anything.

            That said, AFAIK, it is not like there is a giant debate that immediately sprung up since he died YESTERDAY about this.

            And, again, Josh Blackman is noted for only opening his mouth to change feet, so it’s hardly surprising that he made this post. But yeah, the Judge Torruella was kind of a big deal, and while Blackman may suffer from a severe case of logorrhea (putting it nicely) there certainly would have been no harm in waiting, oh, a week or so before using his death as a springboard for this topic; especially given that the Judge’s life and importance and Blackman’s choice to use it to say, “No Puerto Ricans necessary.”

            Timing, etc. I realize that people like you feel the knee-jerk need to defend this, but whatever. You are know by the company you keep and the people you support.

          2. “But nobody else, especially Mr. Blackman is required to care about any of them, however, especially if they never knew or interacted with the man.”

            There is no requirement to care. But writing this post at this time in this way demonstrates what Josh cares about. And what he cares about is immediately writing about which Trump appointee can fill this seat in a lame duck session of Congress and how they don’t have to be from Puerto Rico. There is a lot you can infer from that, some of which will reflect negatively on Josh.

            1. “demonstrates what Josh cares about”

              The only thing moderately interesting about some old obscure judge dying now is the politics.

              Other than loki, how many people here ever heard of the guy? If people answer honestly, I’d say none, maybe one.

              You guys just don’t like Blackmun so anything he writes you pick apart.

              1. Yeah, you’re right. I don’t like him. Among the reasons I don’t like him is because his immediate thought on hearing someone died is to write about how his replacement doesn’t have to be from Puerto Rico. I draw negative inferences about his character from that impulse of his.

              2. “You guys just don’t like Blackmun so anything he writes you pick apart.”

                Blackmun was a justice of the Supreme Court.

                Blackman is the desperate Barrett fanboy who is the future of the Volokh Conspiracy and of movement conservatism in legal academia.

              3. Bob, you’re right.

                I don’t like Blackman. This post is only incidentally about the mechanics of circuit court appointments. He could have written that any time.

                It;s just grave-dancing – “Wow, Trump can slip another judge onto the appeals court, if he hurries. That’s great.”

    2. What’s wrong with sailing?

      1. Absolutely nothing. But if I had said nothing, I am quite sure someone would have said, “That’s not a real sport,” because, apparently, people dying is a partisan issue.

      2. Nothing in general.

        In my case, being a poor swimmer who is prone to seasickness, it’s not an attractive activity, but I have friends who fully believe that,

        there is nothing – absolutely nothing – half so much worth doing as simply messing about in boats.

  3. I don’t see how the quoted language requires that the judges balance their states of residence after confirmation. The appointed-from language only says where they must come from at that time. It does say they have to remain resident within the circuit afterward, (although even that would be a hard thing to actually enforce if a judge were of a mind to flout it).

    1. Came here to say that.

      “Appointed from the residents of” is pointedly NOT “be at all times a resident of”.

      A Judge could move the moment they were confirmed, and be within that rule.

      1. Right, what they couldn’t do, is be appointed from somewhere else, and then move to Puerto Rico to satisfy the law. Because that wouldn’t satisfy the law.

        “I’m not sure what would happen if Puerto Rico becomes a state. Given this statute, there would have to be at least one judge in the new state of Puerto Rico. But who would have to move?”

        Blackman has the law backwards. Nobody would have to move to Puerto Rico; If they weren’t there to begin with, they wouldn’t qualify!

      2. “Appointed from the residents of” is pointedly NOT “be at all times a resident of”.

        Definitely. I think Josh misreads this. If PR is made a state, I would guess that Congress would amend the statute, allowing for no immediate appointment. The next appointment for the circuit would likely have to come from PR, though.

        1. Wouldn’t it be just as easy to add a seat there, as to allow for no immediate appointment?

        2. You’re overlooking that Trump could just appoint a Judge from Puerto Rico. BTW it’s not certain that if Puerto Rico becomes a state that their Senators would be Democrats. Politics on the island are different from the politics of Puerto Ricans in say New York.

          1. Republicans could easily send Republican Senators and Representatives to Washington. Jenniffer González and Luis Fortuño are both Republicans. The current governor, Wanda Vázquez Garced, actually endorsed Trump. The island might be in the mood to elect a Democratic-affiliated Governor this time around, but it’s not a foregone conclusion that it would be a solid blue state. Indeed, long-term thinking Republicans should think PR statehood is a good idea if it looks like a traditional red state, say Arizona, isn’t going to be competitive for them for awhile, but PR would.

            1. In fact, the 2016 Republican platform endorses statehood for PR.

              1. I think it’s generally unhealthy for a democracy to have territories like PR. They’re remnants of our dabbling in empire.

                We should either make them states or cut them loose to be independent. It’s not good for us or them to maintain this relationship.

                1. Not to argue too much with something I somewhat agree with, but the dabbling with empire began in 1783 and never really stopped. Overseas colonial administration is newer, but the US has always been imperial.

            2. Long term, PR should do whatever the heck PR wants to do. Whether that be statehood, commonwealth status, or independence. It’s really their decision, and we should respect that.

            3. Presidents of both parties and both party platforms have long supported statehood. A sizable number of Puerto Ricans aren’t so sure.

              The only time a majority of people voted for statehood was in a two stage vote where the first question was do you want to continue as we are and the second one was do you prefer Statehood or Independence. It was a little more complicated than taht but it seems set up to get that result.

              1. 1967: 60.4% commonwealth, 39% statehood, 0.6% independence.

                1993: 48.6% commonwealth, 46.3% statehood, 4.4% independence.

                1998: 50.3% “None of the above”, 46.5% statehood, 2.5% independence, plus some rounding error options.

                2012: Goofy, somewhat rigged, 2 stage process. Approximately 46% commonwealth, 33% statehood, 18% ‘free association’, 3% independence, but elections observers thought that the there were substantial “shenanigans” by the pro-statehood party.

                2017: 97% statehood, as opponents boycotted the referendum, which had only offered two choices: Statehood or independence.

                2020: Straight yes/no on statehood, but of course we won’t have results for week or so.

                Seems each go-round, the pro-statehood party puts a heavier thumb on the scale. But there seems to be a consistent plurality in favor of just maintaining the current arrangements for now, and very little support for independence.

                1. Ah, yes, looking into it, they’re pulling the same scam as 2017: A vote against statehood is supposed to automatically trigger negotiations for independence. Despite a plurality of the population consistently wanting a continuation of the status quo, they’re trying to take it off the table because statehood is less unpopular than independence.

  4. The purpose of this post seems to be more foreboding than anything else. The two allusions to Puerto Rico becoming a state with Senators is a little much.

    This could have been a really small blog. First Circuit Court judge passes away. Likely to be filled soon especially if Trump and/or Republicans lose the White House or Senate which would continue the time honored American tradition of packing the bureaucracy with political appointments during lame duck season.

    1. The two allusions to Puerto Rico becoming a state with Senators is a little much.

      Blackman is convinced that (A) Biden is going to with with majorities in the Senate and House, and (B) that Democrats will then, in mere seconds, stack the court, make DC and Puerto Rico staets, divide California into multiple states, and a host of other things that he fears.

      It’s… odd.

    2. Jimmy is correct. The article & comments concentrate on process and statehood. But isn’t the more impt issue the identity of the new circuit ct justice? It really is a big deal! GOP leadership already has a big lame duck wish list: 2 circuit, 10-12 district, 1-2 Trade, specialty court plus exec branch nominees. Because there’s so few JC hearing dates left, I’m guessing that Trump will nominate one of his recently-confirmed D.P.R judges, like Arias-Marxuach or Carreño-Coll, since they were both recommended by Rep Gonzalez & confirmed by huge margins. Outside chance is Gov Wanda Vazquez. Bonus: nominating a PR jurist will help Trump win FL.

  5. Section 44 provides that “In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit.” There has to be at least one judge in Massachusetts.

    Did you quote the wrong thing? This quotation doesn’t say the First Circuit has to have a judge who resides in Massachusetts. It says the First Circuit has to have a judge who (1) is in regular active service; and (2) was appointed to the circuit from the residents of Massachusetts — that is, he must have resided in Massachusetts when he was appointed.

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Briefs filed in Lebovits v. Cuomo and Agudath Israel of America v. Cuomo

Briefs filed by the Jewish Coalition for Religious Liberty and the Becket Fund for Religious Liberty.

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Earlier this month, I blogged about Governor Cuomo's COVID-19 restrictions that shuttered house of worship and schools in predominantly Jewish neighborhoods (See here, here, here, here, and here). Since then, I have been actively involved in some litigation.

First, I represent parents and a Jewish school that challenged the Governor's orders. The Jewish Coalition for Religious Liberty (JCRL) was proud to partner with the Becket Fund for Religious Liberty to file suit. The case, Lebovits v. Cuomo, is currently pending in the U.S. District Court for the Northern District of New York.

Here is the summary of our argument:

For over 100 years, Orthodox Jewish girls have been learning and practicing their faith in Bais Yaakov schools. And for almost as long, the Supreme Court has recognized that the Constitution protects the "fundamental right" of parents like Plaintiffs Yitzchok and Chana Lebovits to direct their children's religious education. That is as it should be, particularly in a country to which so many Jews came to escape persecution and to preserve the freedom to raise and educate children in their own faith.

In a different case, a court might be asked to ascertain the point at which this fundamental right must yield to a government's claim that in-person education poses a public health risk. Indeed, this Court already considered the public health claim once in Soos v. Cuomo, — F. Supp.3d —, 2020 WL 3488742 (N.D.N.Y. June 26, 2020), enjoining Governor Cuomo's and Mayor De Blasio's efforts to apply an indoor capacity limitation only on houses of worship. But this case is even easier, because here the Governor himself openly admits that COVID is "not being spread by schools." And BYAM is particularly safe, both because it follows rigorous, State-approved protocols—resulting in zero known cases to date in the school—and because it plans to test all students and staff before returning to school….

Nor can the government claim that the targeted Jewish neighborhoods have particularly high levels of COVID. To the contrary, as Cuomo recently stated that the COVID levels at issue are quite low ("To other states that's nothing"). Indeed, across the entire country, there is not a single other state whose protocols require school closures for the COVID levels that caused the instant shutdown.

So, if neither the inherent danger of school nor a particularly high COVID rate explains the school closure, what does? The evidence admits of only two other explanations. One is religious targeting of the Orthodox, a charge the government admits. Another is that, as Cuomo recently stated, these closures are not driven by public health, but by "fear" of people "losing confidence" in the City and "moving out." In response, the State adopted what Cuomo called a "fear-driven" response that he acknowledges is a "very blunt" policy, "cut by a hatchet," which "is not the best way to do it," but which someday might give way to "a smarter, more tailored policy."

But fear is not a compelling government interest, and—even in a pandemic—constitutional rights deserve better than a hatchet job. That is particularly true where the government admits public health is not in jeopardy. BYAM and its families have a fundamental right to continue their education in the proven safety of their school, and the government has no valid reason to prevent their return to that safe environ-ent. Accordingly, a temporary restraining order should issue.

Here are some of the filings in the case:

We are grateful to Professor Stephanie Barclay (Notre Dame), who filed an amicus brief on behalf of various Muslim groups and Professor James Phillips (Chapman) who filed an amicus brief on behalf of the Center for Constitutional Jurisprudence.

Second, JCRL and Becket partnered to submit an amicus brief to the Second Circuit in  Agudath Israel of America v. Cuomo. In this case, several synagogues challenged the GOvernor's order.

Here is the summary of the argument:

Some free exercise cases are hard, but this one is not. Under any theory of the Free Exercise Clause, a government that uses targeted restrictions to close houses of worship must face constitutional scrutiny. That is particularly true where, as here, the religious restrictions are specifically focused on a minority group. Express attacks on religious minority groups in response to real or perceived threats have a terrible historical pedigree, and do not belong in American public discourse. The First Amendment helps weed out such attacks by subjecting targeted restrictions to strict scrutiny to ensure it happens only where government has exceptionally good reasons.

Almost eighty years ago, the Supreme Court rejected an attack on another religious minority that had been scapegoated as a threat and singled out for ill treatment. See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Few things could be more corrosive to the body politic than allowing collective guilt to be applied to a disfavored religious group because of the perceived actions of some of their co-religionists. As it was 77 years ago, it is sadly again "necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings." Id. at 641; accord Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (overruling Korematsu v. United States, 323 U.S. 214 (1944)). By applying strict scrutiny, the Court should nip this attack on our core constitutional values in the bud.

And it is on this question of strict scrutiny—even more than on targeting—where Governor Cuomo's many public comments about his Order are dispositive. Where the Governor himself characterizes his Order as based on fear rather than science, as cut by a "hatchet" rather than a scalpel, and designed to manage public "anxiety" and people "moving out" of the City, no Court should uphold his Order and allow worship to be largely prohibited for a religious minority. Rather, the only constitutional course is an injunction.

I will post updates about the litigation as warranted.

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  1. In all of my life, I never thought I would ever live to see the day where government goes out of it’s way to suppress Jewish religious practice, and to target Jews.

    Never again seems to have become…maybe this one time, or maybe more than just one time in NY state.

    The People’s Republic of NJ is just as bad. It is time to leave.

    1. It’s not “just as bad.” Governor Murphy has been much more responsible with dealing with the Orthodox community than Governor Cuomo. Lakewood, NJ is as much of an Orthodox stronghold as Boro Park, Brooklyn. And both have had serious issues with not following protocols. I know both, and trust me Lakewood is not better.

      And yet somehow Murphy managed to deal with the community and impress on them the need to follow safety protocols, without resorting to the heavy-handed (dare I say fascist?) behavior of Cuomo.

      Cuomo is an embarassment, and it is even more of an embarassment that the media covers up for him and touts him as a model of responsibility.

      1. Cuomo is an embarrassment because a group of his constituents is gullible, reckless, ignorant, childish, and delusional?

        1. That Mexican villa is still available. You can enjoy it for a while, until the “woke” put a bullet in your head.

          1. Enjoy those seven days, clinger.

            1. Exposing anti-semites and bigots like you is always enjoyable. This time the termites* are not going quietly.

              _______
              *“I’m not an anti-Semite. I’m anti-Termite.” — Louis Farrkahan. Maybe RALK can learn from him, too.

              1. You will comply, clinger.

                You get to whine about it as you wish, though. But you will toe the line established by better Americans.

                1. “You will comply, clinger.”

                  Mach Schnell, Jüdische Schweine

                  1. Why do most American Jews reject the Republican Party?

                    1. Because they’re not Jews. They’re liberals who cloak their preexisting liberalism with a veneer of Judaism.

        2. Arthur has serious issues with Jews.

          1. What are they?

            Other than my lack of respect for Jews who emulate other half-educated yahoos by flouting a virus with aggressive ignorance and lethal recklessness? Those Jews should act responsibly, in my judgment, which seems to outrage some clingers.

            1. Didn’t you used to want to forcibly resettle the Jewish population of Israel in Arizona or something like that?

              1. I proposed consideration of offering American citizenship to every Israeli or of making Israel a state. That seemed to rile some disaffected right-wing bigots who responded by calling me a bigot, likely consequent to poor education.

      2. Phailing Phil spoke to the rabbis. Let’s not forget thougfh….Phailing Phil also closed down shuls.

        1. Many of which were acting irresponsibly.

          Murphy is not perfect. But he is a lot better than Cuomo.

          1. marginally better….not a lot better. Let’s remember, Phailing Phil phucked up and managed to kill thousands of elderly nursing home patients with his utter incompetence.

  2. The Ballad of the Belligerently Ignorant Virus Spreaders . . . Superstition (Lethally Reckless Remix) . . . South Texas Clinger Blues . . . probably not very popular tunes in New York.

    Here’s one everyone can dance to on the final Tuesday of October . . .

    1. Now your into anti-semitism. There’s lots of good material for you, now that we have the internet. There was a guy about 80 years ago named Joeseph Goebbels who had lots of great material for you. He also had a friend name Julius Streicher. Between the two, that ought to give you hundreds of posts.

      Oh, and don’t think we didn’t notice that your repeated appeals to science and reason are a complete crock. Neither science nor reason supports Cuomo’s orders. He openly admits it is based on fear. The two gentlemen I referenced above also thought they were following “science.”

      1. Look . . . the racists, gay-bashers, and xenophobes found a horn to sound!

        1. Now we’re back to Johnny One-Note.

          Hit it, Judy:

          https://www.youtube.com/watch?v=GHpxltpVpr8

          1. You like music? Here’s a good tune . . . I spotted Bored Lawyer briefly in it, at about 2:22.

    2. Kirkland you are the typical yellow dog, echoing whatever your masters tell you to believe.

  3. Looks like classical bigotry to me … attaching guilt to an entire group of people based on similar clothing and mannerism.

    I assure you all that this will not end with these Jews. It never has before.

    1. I attach guilt to everyone who exhibits strident ignorance and dangerous recklessness with respect to a pandemic. If their stupidity derives from superstition of any flavor, that doesn’t make the stupidity better or worse.

      1. Yeah, I don’t particularly care what you do until you decide to string together a coherent argument.

        1. What is your argument, clinger — that reckless knuckle-draggers flouting a virus during a pandemic deserve a pass because they claim to be religious?

  4. The Becket Fund is ironically misnamed. Becket was not in favor of religious liberty; he believed in torturing heretics and oppressing Jews.

    He also wanted sexually abusive priests to be tried in the ecclesiastical courts, not in the secular courts. That was the issue for which he was martyred. No bishop would dare advocate for that today.

  5. I guess I can only applaud you wasting your time arguing against the very definition of a proportionate interference with the freedom of religion if it stops you writing any more sycophantic posts about Amy Coney Barrett…

  6. So, uh… forgive me, I am not very familiar with litigation undertaken almost solely for the purpose of raising one’s profile in the right-wing mediasphere. But is this standard of argument… typical? Because it seems to me that you have slapped together a number of disparate statements by Cuomo in order to make a sloppy inference that Cuomo’s actions are somehow motivated by religious bias. You literally have a paragraph where you attribute a policy position to Cuomo by stitching together two- and three-word phrases together with some editorializing in between. Is this advocacy? What judge isn’t going to roll their eyes over this clear hackery?

    It would have seemed to me that a more compelling case might have been made if you’d compared the areas receiving Cuomo’s crackdown treatment with other areas within New York experiencing the same coronavirus trends but not getting the same treatment. Is there a reason you don’t draw that comparison? The fact that Cuomo is responding to a “threat” that other states wouldn’t respond to, or targeting institutions that may or may not play a big role in promoting the spread of the virus, doesn’t seem like it’s, precisely speaking, relevant.

    He’s within his rights to decide how best to respond to outbreaks. He’s not within his rights to decide that outbreaks in religious communities require stricter enforcement than non-religious communities. Why aren’t you making that argument?

    Is it, perhaps – ahem – that you can’t make it?

    1. Why don’t you read the TRO brief, which he links to.

      1. That brief (like just about everything I have observed to be associated with Prof. Blackman), is a downscale, hollow display of partisan polemics — popular among clingers, irrelevant outside the clingersphere.

        1. As usual, all ad hominem, no substance. We will see what the district judge, who already once enjoined the Governor of NY in a prior case, does with this motion.

          1. Filing in the Northern District seems a worthwhile move . . . the less educated the judge, the less modern the community, the better chance this will have at the district court level.

  7. Professor Blackman…Congratulations! I just read how Governor Stunod (Cuomo) has reversed his policy. Well done.

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The Original Meaning of "Born … in the United States"

It encompassed all territory under U.S. permanent sovereignty.

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This post considers the original public meaning of the citizenship clause's phrase "born … in the United States" (a more detailed discussion is in Part II.A. of my forthcoming article). As mentioned in my opening post, the question has particular importance to people born in American Samoa, a U.S. territory not currently considered "in the United States" for citizenship purposes. And it may have broader implications for an insidious group of Supreme Court cases.

I'll begin with a word about methodology. I use an "original meaning" approach, a common (though not universal) method among originalists that traces its modern lineage to Justice Scalia. The idea is to ask what the words of the relevant constitutional phrase meant in legal communication around the time of the enactment. It's not primarily concerned with the intent of the drafters or ratifiers, although what the drafters and ratifiers said or assumed about their language may be evidence of its common meaning. In particular, pre-enactment uses of the language may be especially important to show a phrase's linguistic context. (There's more on my approach here).

What can we discover about the nineteenth-century view of what was "in the United States"? One might suppose that the phrase could refer only to states admitted to the union (literally the states that are united). But that's not how writers of the time, and particularly courts, understood it. Chief Justice Marshall considered the matter directly in Loughborough v. Blake (1820), concluding: "[The United States] is the name given to our great republic, which is composed of States and territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania." And in Cross v. Harrison (1853), the Court observed that "[b]y the ratifications of the treaty [of Guadalupe Hidalgo ending the Mexican War], California became a part of the United States."

What, then, was not in the United States? The Court considered this question in another post-Mexican War case, Fleming v. Page (1850). The question was whether the Mexican city of Tampico, while under U.S. military occupation during the war, was part of the United States. The Court held it was not. Although the occupation placed Tampico under U.S. "sovereignty and dominion," that status was only temporary and not accompanied by any annexation or cession; thus (the Court said) the "boundaries of the United States … were not extended by the conquest." Fleming strongly implied, however, that if annexation or cession occurred, that would place the territory within the United States (a point confirmed a few years later in Cross). And for what it's worth, the Court reaffirmed Fleming's analysis in Neely v. Henkel (1901) with respect to Cuba, which it found not to be part of the United States, although then under U.S. occupation, because there had been no formal acquisition and the occupation was understood to be temporary.

In an original meaning analysis, these cases are not important as precedent; they are important in showing the linguistic background of what it meant to be "born … in the United States." None of these cases was a citizenship case, but together they indicate a general understanding of what "the United States" encompassed around the time the Fourteenth Amendment was adopted.

Other nineteenth-century practices and assumptions confirm that understanding. Specifically as to citizenship law, the 1789 Constitution did not define citizenship, leaving its definition to common law. U.S. common law generally followed the British rule of "jus soli," as explained by Blackstone: birth within sovereign territory established citizenship (or subjectship in Britain). And in the nineteenth century, persons born in U.S. territories were treated as U.S. citizens by the common law of jus soli (indicating that they were considered born in the United States).

Turning to the drafting of the Fourteenth Amendment, it seems very likely that its drafters understood "born … in the United States" to confirm citizenship upon persons born in territories under permanent U.S. sovereignty. That was the common law rule, and many people at the time described the clause as codifying the common law; it would have been odd if the drafters meant to reject it. Further, the clause's main point was to overturn Dred Scott v. Sandford and confirm citizenship for people of African descent. It would be very odd for the drafters to deny this protection to people of African descent in the territories (especially since Dred Scott was itself about a slave who had lived in the territories). Finally, in discussing the clause, the drafters wanted to exclude from citizenship members of Native American tribes with which the U.S. had treaties guaranteeing partial sovereignty. As I'll discuss later, the drafters saw the clause's "subject to the jurisdiction" phrase as essential to accomplish that result. Thus a central premise of their discussion was that tribal Native Americans in the territories were not excluded by the "born … in the United States" language.

The drafters' assumptions and purposes therefore confirm the meaning indicated by the pre-drafting materials: "in the United States" meant under U.S. permanent sovereignty, whether a state or a territory.

So why is this a hard question today? The trouble began after the Spanish-American War, when the U.S. acquired distant, culturally distinct and (importantly at the time) non-White territories. These acquisitions posed the question whether they would have the full protection of the Constitution. In a series of early twentieth century decisions known as the Insular Cases, the Supreme Court said no.

The Insular Cases were avowedly nonoriginalist and policy-driven. (For a great account of the litigation and the struggle for Puerto Rican citizenship, I recommend Sam Erman's magnificent book Almost Citizens). Justice Henry Brown, providing the decisive vote in the key case Downes v. Bidwell (1901), noted the "serious" "consequences" of extending constitutional protections to places inhabited by "alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought." Concurring, Justice Edward White similarly objected to "bestowal of citizenship on those absolutely unfit to receive it," being members of "an uncivilized race." The Court adopted White's suggestion that "unincorporated" territories (meaning the island territories) should enjoy only limited constitutional protections. And the incorporated/unincorporated distinction became the basis for the denying constitutional citizenship to natives of those territories.

The Insular Cases are also important for what they did not say. The Justices in the majority did not point to any originalist materials supporting their idea of "unincorporated" territory that received lesser constitutional protection. That indicates they were simply inventing it. As Justice Harlan wrote, dissenting in Downes: "I am constrained to say that this idea of 'incorporation' has some occult meaning which my mind does not apprehend." Or as modern originalists Gary Lawson and Guy Seidman conclude (in their outstanding book The Constitution of Empire): "The doctrine of 'territorial incorporation' that emerged from The Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history."

Unfortunately the Court's racist policymaking in the Insular Cases remains the law of the land, and the Insular Cases were the basis for the D.C. Circuit's rejection of U.S. citizenship for American Samoans described in my prior post. But the Constitution's original meaning is to the contrary. In the nineteenth century, "in the United States" meant what Marshall said it meant: in the states and territories (without differentiation as to types of territories). Consequently, under the citizenship clause's original meaning, American Samoans are constitutional citizens. And more fundamentally, the Insular Cases, which continue to limit constitutional rights more broadly in the insular territories, are an affront to the Constitution's original meaning.

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  1. There can be situations, such as hybrid sovereignty, a quasi-permanent lease, or other arrangements, where the question of whether territory is in fact fully US territory is an open and difficult question that has to be parsed from the text of treaties, history, and similar.

    Also, a potentially relevant consideration is that the American Samoan islanders opposed an attempt at incorporation in 1949, which led to its defeat in Congress.

    1. A particularly obvious case here is that of Guantanamo Bay Naval Base, which is under a quasi-permanent lease from Cuba. Guantanamo is carefully operated to prevent anyone who isn’t an American citizen from giving birth there to avoid having to resolve the question as to whether jus soli citizenship applies.

      1. Let’s hope a Biden administration, working with a modern Congress, can address the tawdry stain on America that Guantanamo has become.

        1. Obama campaigned HEAVILY on closing Guantanamo. Yet after he assumed office and was briefed by the military leaders on its importance, he quietly changed his mind and never discussed it again. Kind of tells you something about how important it really is, no?

          1. He campaigned on closing closing the detention camp, not ending the lease for the base.

            And he didn’t “quietly change his mind.” Congress passed multiple appropriations riders blocking the transfer of detainees to mainland facilities.

            1. He didn’t need appropriations for DACA. Or for Risk Corridors.

            2. Appropriations riders? Will those trouble President Biden? Not if Ds get the Senate. But even if they don’t, Biden will have learned from Trump that you do what you want, and ignore the subpoenas. Control the House? You’re not going to get impeached.

              Good times for Ds, all thanks to generous non-foresight by Rs.

          2. Uninformed clingers may have missed that bigoted Republicans in Congress blocked Pres. Obama on that one.

            The likelihood a Pres. Biden would confront a similar relevant Republican influence in Congress, however, is roughly one-in-four.

            Let’s hope the reckoning reaches Guantanamo.

          3. “Obama campaigned HEAVILY on closing Guantanamo.”

            turns out, he didn’t control Congress, and they wouldn’t let him bring any of the prisoners to the US to be put on trial. So, between the choice of just open all the jail cells and get out of the way, or keeping the prisoners confined, he did the second one.

            1. Obama had a Democratic Congress and Senate for the first two years of his first term.

              1. That depends on how you define Lieberman.

  2. Have you consulted Bruce Springsteen?

    1. Sorry about this – I flagged the wrong post by mistake!

    2. I came here to say exactly that. Great minds think alike…

      1. Remember when Reagan figured “Born in the USA” indicated he should Springsteen in his stump speeches?

        I attended the show at which Bruce responded: ““Well, the president was mentioning my name in his speech the other day, and I kind of got to wondering what his favorite album of mine must’ve been, you know? I don’t think it was the Nebraska album. I don’t think he’s been listening to this one.”

        1. This was Springsteen’s own fault. He originally conceived the song as a slow dirge, and he has sometimes played it that way in concerts.

          But to make some money during the Reagan zeitgeist, he decided to turn the marketing of the song and album into an upbeat, anthemic, guy in blue jeans with the American flag type of thing. And then, the poor little thing with all of his millions got upset that people (not just Reagan) minsinterpreted his song. What an a-hole.

          1. You’re assuming that Springsteen was in charge of marketing his records, but record companies have people for that. “Born in the USA” isn’t the only Springsteen song that people commonly misinterpret. The record company didn’t feel any need to correct anybody who bought and paid for the record.

            1. He literally changed the song from a dirge into an anthem. Considering that was consistent with the record company’s marketing, and that he posed for all the pictures (including the one on the album cover), I would say it is highly improbable that he wasn’t fully aware of what was being done.

              Bruce Springsteen acted like a complete douchebag on this issue. He wanted that money. He was greedy. He saw an opportunity to cash in on Reaganism. And then he whined about people doing exactly what he encouraged them to do.

              1. Check the lyrics sometime.

  3. What was the originally understood citizenship status of a child born abroad to US citizen parents:
    (a) while temporarily abroad on government business or
    (b) while temporarily abroad on private business or for pleasure?

    1. The original (and current) understanding was that it was/is up to Congress.

      1. …and not addressed by the 14th Amendment at all.

        1. But are they “natural born citizens” eligible for the Presidency?

    2. Recall that at the time Maury hadn’t yet invented DNA paternity tests, so motherhood was an observed fact, and fatherhood was a stongly-held opinion.
      the laws are still broken, in that being descended from a US citizen mother generally confers citizenship, while being descended from a US citizen father generally does not.

  4. Minor counterpoint, there was a shift in language use from referring to “the United States” as plural originally to later singular. In plural usage, it’s clear that the relevant entities are states (who together are united), and that therefore to be born in the United States, you have to be born in a state. Of course, such a reading would exclude even permanent territories, so it’s pretty extreme.

  5. If the drafters of 1787 or 1868 were faced with large territories filled with brown, Spanish-speaking people, which no one thought of as possible future states, would they be as colorblind and tolerant as you seem to assume?

    It would be interesting to see how former Mexicans were treated after they found themselves in United States territory after the Mexican War.

    1. As the second paragraph lays out, Professor Ramsey isn’t trying to figure out what the drafters of the 14th Amendment intended to accomplish, just what the meaning of the words they wrote was at the time.

      As is clear from innumerable contract disputes, what people intend to accomplish with their words and what they actually write down are often very different.

      1. Would they have considered such places part of the “United States”? I doubt it.

        1. Professor Ramsey makes the case that they would have. I imagine there might be some evidence in the other direction, but I’d tend to defer to his research rather than your supposition.

      2. These would be the meaning of the words where “people” very often meant “people we like, you know the ones”?

        This is the central conceit of originalism. Y’all blatantly ignore what their words meant at the time when it’s inconvenient. Even as modified by the 14th amendment, “people” didn’t mean “people”.

    2. It would be interesting to see how former Mexicans were treated after they found themselves in United States territory after the Mexican War.

      The Treaty of Guadalupe Hidalgo addressed that question:

      ARTICLE VIII

      Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever.

      Those who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.

      In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.

      ARTICLE IX

      The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States. and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the mean time, shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.

    3. Well, that’s kind of the premise of the article, isn’t it?

    4. “If the drafters of 1787 or 1868 were faced with large territories filled with brown, Spanish-speaking people, which no one thought of as possible future states, would they be as colorblind and tolerant as you seem to assume?”

      the drafters of 1868 were faced with a problem. The absolutely intended to provide citizenship to a substantial number of brown people, who didn’t/couldn’t derive citizenship from their parentage. There was concern that the various states where these brown people resided might be resistant to extending citizenship to them, so they wanted the Constitution to unambiguously do so. So they wrote inclusive language. They didn’t want to leave any wiggle-room for the former Confederate states to claim the freed slaves were noncitizens.

  6. Justice Henry Brown, providing the decisive vote

    No.
    No single vote was decisive. I am really tired of this nonsense. Henry Brown may have written the majority opinion (I do not know), or he may have been last to vote (I doubt vote orders were recorded), but even so, his vote was just one of many, and not decisive by itself.

  7. So…..how does this play out in the case of the Philippines?

    As I recall, they were a US trust territory for over 50 years. Does that mean anyone born in the Philippines from 1899-1946 is a US citizen?

    1. Then there’s the Panama Canal Zone. Was it actually originally considered a permanent transfer to US territory? Did Jimmy Carter’s treaty actually transfer US territory to Panama?

      I would guess that the Philippines was closer to being real US territory than the Canal Zone, seeing as how it was won in the same war that absorbed Guam. But I don’t know the legal niceties of either.

      1. If I remember correctly the actual treaty allowed the United States to control the Zone “as if it were sovereign” or something like that.

    2. “So…..how does this play out in the case of the Philippines? ”

      By statute. If a baby comes out of a US citizen mother, then the baby is a citizen. But if the baby first came out of a US citizen father before finding an egg and implanting in some foreign uterus, a different rule applies.

      1. This of course gets to another bad policy of the US in not addressing children fathered by our soldiers. A disgrace in how we treated AmerAsian children born in Vietnam.

      2. In either case, if the child lives abroad, never comes to the US, the parent’s done file at a consulate, and the child doesn’t make claim to their citizenship as an adult…

        Then their kids aren’t citizens.

        Citizenship is something that can be lost across generations due to negligence.

    3. For most of that time the Filipinos argued lobbied and some fought for Independence. Many in Congress agreed with them. Pretty early on Congress agreed to the eventual Independence of the Philippines and in the 30s actually set a date, which was rejected by the Philippine Legislature. A short while later another bill passed Congress and Filipinos accepted. The date was set for 1946, which was in fact honored, in spite of WWII and the Japanese occupation of the Philippines intervening.

      1. Hence my question….What is the status of the people born in that time period? Are they citizens, or not? Professor Ramsey’s post doesn’t really address that (or maybe I missed it).

        1. They were not citizens. But one could consider their status 7n resolved.

  8. I propose that any arguments over the original meaning of “Born in the USA” be directed to Mr. Springsteen for clarification. Maybe get him to explain “Blinded by the Light” while he’s at it.

    1. One prong of the test is if one was born with the purpose of “killing the yellow man.”

      1. You skipped a step. or possibly more than one.

  9. Wasn’t this question answered a years ago in Re: In the Matter of “Born in the USA,” Bruce Springsteen?

  10. The United State was formed by the rebellion of British colonies. Our founders would not accept second class status and yet we impose that on our territories. We should make people in territories full citizens, including voting for representatives and the President or we should liberate the territories. Anything else is hypocritical.

  11. In this context the situation in Puerto Rico has some analogies. The party currently in power favors statehood, then next biggest party favors keeping things the way they are and sere is a small Independence party. If I recall correctly there have been 5 plebiscites asking whether Puerto Rico should become a state, remain as it is or become independent. Also as I remember statehood only won a majority when the question was put as if not a commonwealth what? I’m not exactly sure what that vote meant.

    1. I suspect part of the problem is that the plebiscites, never had the effect of changing the status. If the Democrats win the Senate the first thing they should do is to grant Puerto Rico statehood should they request it. Then hold the local vote that has meaning.

      1. That is not the traditional route to statehood. Usually the prospective state has requested admission via plebiscite or convention, before Congressmvoted for statehood. It’s not clear Puerto Rico would vote for statehood.

  12. Independence was wanted before Puerto Rico’s financial problems. Now a bail out, oops, Statehood is wanted.

    1. And how much of that financial problem is due to second class status it is given?

    2. The indepandanistas have never commanded more the 20% of the vote and that was a long time ago.

  13. I hope I’m wrong about where this one is headed, but the prop line still favors ‘originalism — if properly understood — rejects birthright citizenship, much like the contention that ‘libertarianism — if properly understood — actually favors statist womb management, bigoted anti-immigrant policies, and gay-bashing.’

    1. “… bigoted anti-immigrant policies, and gay-bashing”

      Those be some tired, old tropes you trotted out….

      1. Those are important elements of movement conservatism. Bigots don’t like to be known as bigots these days, because better Americans have imposed progress, but I reject political correctness and call a bigot a bigot. This riles plenty of Republicans, who prefer to hide behind and use euphemisms.

  14. U.S. common law generally followed the British rule of “jus soli,” as explained by Blackstone: birth within sovereign territory established citizenship (or subjectship in Britain)

    So, was every person born in Britain prior to the revolution still a citizen of the U.S. after the revolution? If not, what of the founder James Wilson, born in Scotland, but resident in the U.S. prior to the revolution. He would not have been a non-citizen before the Revolution, because in a British colony he was alike with the other Brits, including the ones born in the colonies. If after the revolution other Scottish-born Brits were excluded from U.S citizenship, why not Wilson?

    But what about after the Constitution—the first draft of which was written in Wilson’s hand? Still a British citizen then? If not, when did his citizenship change? Was Wilson for sure a U.S. citizen when he sat on the first Supreme Court?

    I ask because I want to find out if it’s okay if originalists tailor doctrines in ways which contradict the founders’ actual practices. Textualism ought to provide plenty of room to do that, right?

    For instance, textually I suppose it would be okay for President Biden to nominate a Muslim, non-citizen law professor to become Chief Justice, if that seat opened. The Constitution names no requirements whatever for Court appointees. Nothing about age, citizenship, birthplace, legal qualifications—nothing at all, really.

    Presumably, Amy Coney Barrett—whose policy preferences play no role, as we know—would back against any challenge—legal challenge or policy challenge—Professor Abdul Omar, Distinguished Professor of Sharia, at Taliban Law School. Why not? Politics are off the table, there is no text against it, and it isn’t a sitting Justice’s place to vet nominees anyway. It would be fun to watch Professor Omar deflect questions during the Senate hearings.

  15. A naturally born citizen, does that automatically exclude all those born by caesarean section? If not, why not? Based on Originalist understanding of the term, naturally born, and as defined in dictionaries of the time, why would not those individuals be barred from the Presidency?

  16. The indepandanistas have never commanded more the 20% of the vote and that was a long time ago.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: October 27, 1787

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10/27/1787: First Federalist Paper is published.

Alexander Hamilton

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  1. They were written by Hamilton, who walked out of the Convention when it did not accept his proposal for a king-like President and a House of Lords-like Senate; by Madison, whose centralized Virginia Plan had been heavily cut down; and by Jay, who was not at the Convention at all and who was an Anglophile who liked the idea of a constitutional monarchy. It is not surprising, then, that the Federalist Papers presented a stronger federal government than the Constitution actually depicted.

    1. That’s correct.

      And more generally, they are the worst form of legislative history- statements by individual “legislators” who are trying to shape public opinion rather than simply state what is in the text. Scalia, correctly, used to rail against this sort of thing when it was used in other contexts. But the Federalist is somehow untouchable.

        1. The “anti-federalist” papers have been collected by Herbert Storing, and abridgements have also been published. The arguments of “the real federalists” are as important to the historical debate as those of the “ratificationists.”

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Justice Barrett: "I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it."

"A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her."

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On Monday evening around 9:00 p.m., Justice Thomas administered the constitutional oath to Justice Amy Coney Barrett. The video begins at the 10:30 mark.

After her oath, Justice Barrett offered remarks, which I have done my best to transcribe:

Thank you all for being here tonight, and thank you, President Trump, for selecting me to serve as an Associate Justice of the United States Supreme Court. It is a privilege to be asked to serve my country in this office, and I stand here tonight truly honored and humbled.

Thanks also to the Senate for giving its consent to my appointment. I am grateful for the confidence you have expressed in me, and I pledge to you and to the American people that I will discharge my duties to the very best of my ability. This was a rigorous confirmation progress, and I thank all of you, especially Leader McConnell and Chairman Graham, for helping me to navigate it.

My heartfelt thanks go to the members of the White House staff and Department of Justice, who worked tirelessly to support me through this process. Your stamina is remarkable, and I have been the beneficiary of it. Jessie and I are also so grateful to the many people who have supported our family over these last several weeks. Through ways both tangible and intangible, you have made this day possible. Jesse and I have been truly awestruck by your generosity.

I have spent a good amount of time over the last month in the Senate, both in meetings with individual senators and in days of hearings before the Senate Judiciary Committee. The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate. And perhaps the most acute is the role of policy preferences. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them.

Federal judges don't stand for elections. Thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty: the rule of law must always control.

My fellow Americans, even though we judges don't face elections, we still work for you. It is your constitution that establishes the rule of law and the judicial independence is so central to it. The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences. I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it. Thank you.

She continues to impress me in ways that I frankly hadn't expected. There is a sincerity behind every word that really resonates. Four themes jumped out.

First, she repeated an important refrain: "It is a privilege to be asked to serve my country in this office, and I stand here tonight truly honored and humbled." During her hearing, Judge Barrett made this point quite eloquently. She sees her nomination as a duty to the country she deeply loves, and not as some sort of social-climbing, self-aggrandizing brass ring.

Second, you can tell that the confirmation process actually made an impact on her. No, not in the sense of the Thomas and Kavanaugh hearings, where the Justices were forever scarred by the process. Rather, she witnessed first hand how many of the Senators were concerned primarily, if not exclusively with policy outcomes. The overwhelming majority of questions asked ACB about her views different social issues, such as abortion, gay rights, etc. At each juncture, Judge Barrett refused to answer those questions. Critics thought she was evasive. But she truly did not think her own views would be relevant. During her remarks, Justice Barrett used this experience to highlight the dichotomy between senators and judges. Senators are duty-bound to follow their preferences. But "it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them."

Third, she made a simple, but profound point: "Federal judges don't stand for elections. Thus, they have no basis for claiming that their preferences reflect those of the people." I immediately thought of Justice Scalia's Obergefell dissent. He wrote:

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. . . .  The strikingly unrepresentative character of the body voting on today's social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today's majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

ACB nailed the Scalia dissent, without the brashness. And, for what its worth we now have a second Justice who "hails from the vast expanse in-between." Oddly enough, both of them are Hoosiers.

Barrett's modesty must be contrasted with Justice Kennedy's arrogance. He truly believed that he could discern what the people wanted, and read those preferences into the Fourteenth Amendment. For example, the joint opinion in Planned Parenthood v. Casey proclaimed: "Our obligation is to define the liberty of all, not to mandate our own moral code." The Court cannot "define the liberty of all" because it cannot possibly know what the "liberty of all" is. And if it tries to "define the liberty of all," it will simply mandate its "own moral code." Justice Barrett thoroughly rejected this model of judging in the span of a few sentences.

Third, Justice Barrett formally declared her independence from the very people she just thanked: President Trump and Leader McConnell. She said, "A judge declares independence not only from congress and the president, but also from the private belief that might otherwise move her." This imagery is important. I described Justices Gorsuch and Kavanaugh's opinions in Trump v. Vance in similar language: "the two Trump appointees formally declared their independence from him." But not really. They barely ruled against Trump, because they actually agreed with the dissent. But they had to signal their independence.

Fourth, Justice Barrett spoke lovingly of the Constitution. She said "I love the Constitution. Can someone print that on a T-Shirt: "I love the Constitution." We need to update the "dogma" merch.

Her full quote is even more profound. She said, "I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it." Here, she is alluding to Benjamin Franklin's famous quotation that it is a Republic if you can keep it. Justice Barrett will do her role to preserve the Republic.

No matter how many new seat are added to the Court, Justice Barrett will still loom large over the others. Her greatest contribution will be to enrich our constitutional culture.  I mean that sincerely. She has the charisma and presence to elevate legal discourse to the next level. And I think she will inspire generations of conservative women to aspire to greatness, without eschewing their beliefs. With time, she may even be able be able to fill the titanic void left by Justice Scalia.

I can't wait till she gets started.

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    1. Man Progs are like the biggest babies ever aren’t they? I mean all 4 of the liberal Justices are directly or like one step thanks to a Republican. And for the rest the conservatives have pigeonholed themselves into appointing only Constitutionalists rather than those who openly and directly bat for the team like Dems. Its like you get a dream opponent who half the time kicks the ball in his own net. Not to mention Estrada and other times Republicans have tried to offer an olive branch or the Dems have screwed them in the judicial process that are forgotten when the media pretends the controversy started with Trump. Its hard to imagine another situation where one side has bent itself over so much for the other side. Heck with the way Roberts is going we might find ourselves right back with a 5/4 Court despite all the blood and sweat the Republicans have shed. Yet the Left has a cow as if the world is going to end every single time things don’t go exactly as they want.

      1. ” despite all the blood and sweat the Republicans have shed ”

        The sweating and bleeding has barely begun, clingers.

        1. Go suck yourself an egg, troll.

      2. Very cool, but Blackman is still a creep.

    2. “You’re a creep”

      Nah. He’s the future of conservative legal academia.

      A dismal, stale, intolerant, impotent, disaffected future.

  1. Even as a liberal, I have to give it to Trump for nominating Barrett to the Supreme Court.

  2. “A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her.”

    I’m sure it would then be trivial to point out instances where Barrett has ruled in a way, or written that rulings should go in a way, that would seem contradictory to her faith?

    Or is it just a happy coincidence all her personal beliefs also just happen to the the right legal positions too?

    1. When one sides goal is to destroy the Constitution its pretty easy to vote your personal beliefs and for the Constitution at the same time consistently.

      1. Indeed. But I suspect you’re confused about which side is out to destroy more of the constitution (comparatively, because both liberals and conservatives have their parts they wish to destroy. I do look forward to Barrett defending the 2nd Amendment for example).

    2. Examples?? Or just general bitching?

    3. As opposed to RBG who was pretty blatant about ruling in favor of her policy preferences
      ACA
      Encino Motor
      Goodyear
      etc

    4. I’m sure it would then be trivial to point out instances where Barrett has ruled in a way, or written that rulings should go in a way, that would seem contradictory to her faith?

      Only if…

      A) Catholicism takes a definitive stance on a significant number of the legal issues that have come before her, and

      B) Such stances are likely to be at odds with an originalism-based legal ruling.

      Can you demonstrate that both of those are true?

      1. Barrett, and the ones defending her stance, are the ones claiming that there may be situations where her faith and the correct legal decision are at odds, and in those situations, she will follow the law against her own beliefs. That ought to be defended with a specific example.

        But I do believe you’ve hit upon the answer, just in what I’m sure is a pure coincidence, there are no beliefs she possesses that she could not argue are legally correct as well. It’s a miracle!

        1. You ask for evidence to prove a negative ( show me she isn’t biased by her religious beliefs!) and then beg the question.

          You don’t need us for this. It’s masturbatory. You’re a masturbator, but not a master debater.

        2. The only one who made a claim that requires defending here is you.

          in what I’m sure is

          It’s funny how closely associated that sort of baseless self-assurance is correlated with utter cluelessness and a general propensity for bullshit.

          1. #Confidentlywrong

  3. I strongly supported her instead of Kavanaugh, a Yale indoctrinated lawyer. Trump did not listen to my message. Now, she proved herself to be an easy candidate.

    1. “Trump did not listen to my message.”

      Well, that’s shocking. I heard that he checks out the Volokh Conspiracy comment section right after watching Fox and Friends every day.

  4. That “serving the country” crap continues to annoy me. It annoys me when people thank me for my Navy service; hell, I get paid to have a good time! Service my ass.

    About the only President who I will concede probably did serve his country was George Washington, because everything I’ve read says he did not want to be President, he much preferred his farm, but he did it out of a sense of duty. Maybe it was an inflated sense of duty. Maybe he dreaded who might be elected if not him and wanted to start the political trend in the right way. But all things considered makes me think he did have a sense of duty entirely lacking from everyone following.

    1. Washington’s biography shows him well up among the leaders for burning personal ambition. Ambition so consumed his temperament that he began as a child to study its management and public presentation. The modesty was all performative. One of his presidential virtues was that he so excelled at the performance that he persuaded the nation to love him for the modesty he presented.

      1. And yet he declined to be made king, and responsibly stepped down.

        You know nothing.

        1. Nancy, Donald, and Joe all would have, too!

    2. “That “serving the country” crap continues to annoy me. It annoys me when people thank me for my Navy service; hell, I get paid to have a good time! Service my ass.”

      So, you have a new definition of service that we should know about? I guess we need to rename the service industry, they get paid.

      Obviously though, serving in the Navy was your first mistake. 😉

      1. Some of my best shipmates were jarheads!

    3. That “serving the country” crap continues to annoy me.,?i>

      It annoys the hell out of me, too. Taking a seat on the Supreme Court is not a major sacrifice.

      1. It probably guaranteed her a lifetime of death threats and reliance on the Court’s own version of the SS, that’s somewhat of a sacrifice.

        1. How many death threats does John Roberts get?

          1. How many death threats does John Roberts get?

            I don’t know…but I do know that the left in general was not nearly as unhinged about Bush II as they are about Trump.

          2. They don’t bother sharing in that regard, but they do frequently travel with bodyguards, and I’d assume it’s not for yucks.

            1. And who is the “they” in that sentence?

              1. Wow. You really can be obtuse when you want to be, can’t you? The justices, obviously. Did you recently suffer from a closed head injury?

      2. Yet you leftists declared that Michael Sam, a mediocre football player, was a courageous hero for announcing that he was a faygele.

    4. If the balloon goes up, and a sailor gets killed in the next fracas, we can’t actually thank him when he’s a smear on the deck or sent to Davey Jones’ Locker, so we thank him in advance, just in case.

  5. This speech ended hours ago! That’s a lot of time for hot takes you missed out on! What have you been doing?

    On second thought, don’t answer that.

  6. She’s not gonna do you, man. She’s got a husband and everything.

    1. You apparently have never witnessed the arrival of girls from Catholic schools at fraternity parties during freshman orientation. Neither have the parents who send their daughters to those Parochial schools. The Catholic girls really distinguish themselves.

      But autism still has consequences, even in the pursuit of Catholic girls.

      1. Oh, now I see why you hate religion so much. You were rejected by Catholic schoolgirls that you thought you deserved. You poor incel.

        1. The last time RAK got a piece of *** was when his finger busted through the toilet paper.

      2. Nope, no bigotry from RALK. None here.

        BTW, Trotsky’s Mexican villa is still available. Rent it while you still can.

    2. Gotta love these woke feminist men.

      1. Tips of feminism from the handmaid side of the aisle?

        Which may not be as bad as the ‘speaking in tongues’ part.

        1. “Tips of feminism from the handmaid side of the aisle?”

          “Handmaid” being a woman who disagrees with you, Arthur? Wouldn’t be nice if these women with their ladybrains would just let you do the thinking for them?

          1. Handmaid being a woman who calls herself, and allows others to call her, a handmaid? And pledges submission to her husband . . . and to her real mancrush, Jesus.

            1. Then I guess it’s a good thing that her husband and Jesus told her to be a Supreme Court Justice. Just think, if only your wife had told you to go be a Supreme Court Justice instead of doing the dishes or whatever.

              1. She’s a Supreme Court Justice because she’s a willing, reliable tool of clingers in the service of stale intolerance, sacred ignorance, and general backwardness.

  7. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them.

    That strikes a blow against my hope that this Justice thinks clearly enough—or maybe writes clearly enough—or maybe has the right temperament. In some world of legal abstraction, her policy preferences may align with what the Constitution requires. How can it help her to do the job right if she actively resists the right decision because she agrees with it?

    That quote makes it sound like judicial temperament is so far from her nature that every decision will be a struggle against prejudice. I hope that is just inaccurate self-description, or maybe a non-judicial-sounding exaggeration. Is she struggling with some personal insecurity that she herself may be misjudged, and trying to play a reassuring part before the crowd? If so, she had best lay that aside before taking her first case.

    It would be better to be skeptical of policy preferences, or not to have them—much better if judicial temperament came naturally—or even as a gift of practice—than to imagine yourself in constant struggle against prejudice. There is too much in that of Manichean struggle against darkness. To see the world that way is to imagine yourself as an exemplar of good, in a struggle against inherently evil opponents.

    Given Barrett’s personal history, I am less than reassured. The quote sounds too much like an involuntary flash of self-revelation.

    1. It says a lot more about you than it does her.

      It’s a simple statement. A judge should not make decisions based on their policy preferences.

      When you meet this hypothetical person who has no policy preferences, please introduce them to the world, they’d be the first.

      1. Guess we can add malignant misogyny to lathrop’s religious bigotry.

      2. And it’s a simple lie to claim that judges actually behave according to that “should”.

        And it’s an absurd lie to claim that Barrett would have been chosen if anyone though she wouldn’t act on her policy preferences.

        1. The morally and ethically bankrupt cannot conceive of a person with integrity. They always assume it’s some kind of con, like a liar who assumes he’s being lied to.

    2. I’m very reassured. RBG was a terrible justice. 100% feelz. This is an upgrade. Bigly

      So you have a problem with her ruling based on the constitution as written not imagined (which was the RBG way)

  8. Incel Elegy?

    Or Ballad of the South Texas Incel?

    I can’t decide.

    1. Sniff, sniff…Someone soiled their diaper, Arthur.

      Three (3) SCOTUS justices
      Fifty-four (54) Circuit Court judges
      One Hundred sixty two (162) District Court judges

      Number 163 will be confirmed today (Knepp, OH). Plenty more to come.

      Getting a little testy as we near the election? Can’t imagine why. I mean, the polls all say Quid Pro Joe has the election. 🙂

      1. Oh yeah, before I forget….PS: Joe Biden is corrupt AF.

        1. Hannity and Giuliani say so, anyway. Good enough for XY.

          1. The laptop doesn’t lie, bernard11. The emails are damning. Even more damning are the actual recipients of the emails coming forward publicly, in the light of day, to detail the level of corruption with Quid Pro Joe. No anonymity there.

            1. The laptop may very well lie, since it looks a lot like it came via Russian intel though Rudy’s Ukrainian friends.
              Yelling to foreign countries that you’re willing to trade whatever for help in your election will kinda shoot your credibility when a foreign country appears to come up with the goods.

              Though speaking of the goods….what crime has been revealed? That’s not been made clear in all this sturm and drung.

              1. And the email recipients coming forward publicly….?

                C’mon man. I expect better, Sarcastr0.

            2. The laptop doesn’t lie, bernard11.

              Laptops lie all the time, XY. Especially when Giuliani’s Russian buddies have something to do with them.

              1. Really bernard11?

                The pictures of Hunter passed out with a crackpipe in his mouth, or videos of his cavorting with very young looking oriental girls are all a Russian hoax. Um…Ok. The scarier part is Taiwanese TV is now broadcasting sweet, innocent Hunter getting a footjob from some oriental prostitute as he smokes crack. What the hell else is there? And the emails are some kind of vast, right-wing conspiracy, am I right? And the email recipients coming forward to speak publicly about these matters are what?

                Neither Quid Pro Joe nor his very troubled son have denied the authenticity of the laptop, or the emails.

                1. What does Hunter Biden’s past misconduct have to do with whether Joe Biden is corrupt or not? Plenty of bad behavior in Trump’s past.

                  This is sleazy crap. The emails can easily be a Russian hoax. Giuliani is known to be in cahoots with the Russians. The whole thing reeks. Email recipients coming forward? Who? This Bobulinski character?

                  1. The recipients of the emails have publicly stated that Quid Pro Joe was aware of the business arrangements. And discussed them.
                    Bernard11, neither Quid Pro Joe nor his son have denied the authenticity of the picture, videos, or emails. I mean, I have to ask you which is worse here.

                    One, Quid Pro Joe was completely unaware of what his son and his brother were doing to cash in on the ‘Biden Brand’.

                    Two, Quid Pro Joe was aware of what his son and his brother were doing to cash in on the ‘Biden Brand’, and did nothing to stop it.

                    So bernard11…you tell me. Why would you be ‘Ok’ with either option? One of them is true.

                    1. 1. Companies getting relatives of bigwigs on their board is extremely common. It is not necessarily peddling access – it can as easily just be the optics of looking like you’re an important company important people are interested in. This kind of reputational drafting is not corruption, and is indeed unavoidable in any society with the corporate form.

                      2. This is rich considering Trump’s actual and clear nepotism is going on right now.

                      3. You have proven no crimes, no quid pro quo is proven (unlike what Trump was seeking and got impeach for).

                      The right is pushing this desperately. Maybe it’ll work. But your own comment is so weak on criminality or even wrongdoing and so long on namecalling I do not expect so.

                    2. Totally haul so far from the kompromat laptop :

                      (1) Hunter may have gotten a handshake with the Vice President for a business associate.

                      (2) Hunter may have discussed a cut for his father – by then a private citizen – on some deal that went nowhere. Regardless of whether he did or not (the two other business associates differ on the question) Joe Biden received nothing. Remember : He’s released his tax returns.

                      (3) Joe Biden may have been less than 100% honest when saying he knew nothing about his son’s business affairs.

                      And that’s it. All the right-wing hysteria is built on that pathetic haul. Hell, Trump is more corrupt in an average week than this nothingburger stretching over years….

                    3. As I recall, Joe was aware that Hunter was taking a seat on the Burisma board and told him he didn’t like it.

                      What “recipients?” What “business arrangements? And how did they know?

                      You know, XY, if I had your laptop it would be the easiest thing in the world to send you some emails, and to respond to them, even setting the dates to anything I wanted. It would be even easier if I had a laptop that I could claim was yours.

                      Biden isn’t saying anything because that’s just going down a rabbit hole. Giuliani&Co will just generate another “scandal” and the whole thing will stay in the news a while longer.

                    4. “Totally haul so far from the kompromat laptop :
                      …And that’s it.”

                      Wow. Those Russian intel folks sure are inept, eh?

                    5. TwelveInchPianist : Wow. Those Russian intel folks sure are inept, eh?

                      Well, Rudy says he’s holding child porn in reserve, so maybe they’re counting on that. After all, that sort of thing is a regular feature with dezinformatsiya of this kind. Some points :

                      1. Their cover story with the blind-Trump-fanatic-computer-repairman couldn’t be more inept, particularly after the poor guy started giving interviews. Even the right-types I know have a hard time claiming that’s credible while looking me in the eye.

                      2. And poor Giuliani? He couldn’t be more inept. For his most recent email scandelette, Rudy released a Blackberry screenshot of a iPhone running on the (Russian) MTS network – this for something supposedly coming from a Delaware computer repair shop. The poor dumb s.o.b. didn’t think to crop it out.

                      3. Remember Lev Parnas? He was one of the two low-grade crook henchmen Giuliani used to conduct Trump’s “foreign policy” in Ukraine. A few days ago Lev said Rudy was offered Hunter Biden pictures and emails back in spring of 2019, long before the blind trump frantic computer repairman. You can believe Parnas is lying, but in favor of what? Giuliani’s honesty? Trump’s honesty?

                      Look: the laptop was always a joke. Please start by asking why Hunter goes ’round all his acquaintances & collects the most humiliating pictures they’d taken of him to copy onto his laptop. Someone hacked Hunter Biden or Burisma and the laptop is a delivery device, spiced with embarrassing photos and (maybe) kiddie porn. My assumption is they didn’t want to go with a simple leak after the Russian role in Podesta’s 2016 hacking was so well documented.

                      This one will be documented too eventually. And fake Hunters delivering faux laptops makes it a full foreign intelligence operation to my eye. I wonder if Rudy would go to jail for Trump?

                    6. Sarcastro
                      “Companies getting relatives of bigwigs on their board is extremely common. It is not necessarily peddling access – it can as easily just be the optics of looking like you’re an important company important people are interested in. This kind of reputational drafting is not corruption, and is indeed unavoidable in any society with the corporate form.”

                      It is corruption when the purpose of stopping a corruption investigation – Burisma’

                    7. So is it totally innocuous, or is it Russian propaganda? It would be nice if you could at least pick one.

                    8. TwelveInchPianist : So is it totally innocuous, or is it Russian propaganda?

                      Why not both? After all, one of the Russian interventions for Trump in 2016 was leaked emails hacked from John Podesta that also had no hint of criminality. They were effective nonetheless for chewing up headlines the last days of the campaign – plus their lack of real news value didn’t stop right-wing propagandists from trying to claim overwise – just like here.

                      Mueller’s found the Russians hacked Podesta and sat on their trove of stolen emails almost six months. Wanna know when they released the first batched? Less than one hour after the Access Hollywood scandal was first posted online. Their boy Trump was in trouble and they rushed to help – just like here.

                    9. Joe_dallas : It is corruption when the purpose of stopping a corruption investigation – Burisma’

                      Are you (1) grossly uninformed, (2) committed to lying, or (3) just plain stupid? Those are the only three options with anyone peddling this crap. First, there was no investigation of Burisma, as you’ll find if you venture anywhere near a factchecker. I quote Politifact but they all say the same thing :

                      “However, Vitaliy Kasko, who had been Shokin’s deputy overseeing international cooperation before resigning in February 2016 citing corruption in the office, produced documents to Bloomberg that under Shokin, the investigation into Burisma had been dormant. “There was no pressure from anyone from the U.S. to close cases against Zlochevsky,” Kasko told Bloomberg. “It was shelved by Ukrainian prosecutors in 2014 and through 2015.”

                      https://www.politifact.com/factchecks/2019/may/07/viral-image/fact-checking-joe-biden-hunter-biden-and-ukraine/

                      Now that’s true enough, but it’s almost irrelevant to defending Joe Biden. You see, he did pressure Ukraine to fire Shokin. That was because :

                      01. It was the order of the President – who wasn’t concerned about Hunter.

                      02. Firing Shokin was a publicly-stated United States foreign policy objective. This had nothing to do with Hunter.

                      03. The official State Department position was Shokin had to go. Hunter was irrelevant to this.

                      04. The U.S. Ambassador to Ukraine gave a speech in Odessa demanding Shokin be fired. Hunter was nowhere on his radar screen.

                      05. Firing Shokin was a bi-partisan stance of the U.S. Senate. Their group letter demanding this action failed to mention Hunter.

                      06. The European Union insisted Shokin be fired. The EU doesn’t care a bit about Hunter.

                      07. A World Bank official policy goal was Shokin had to go. The World Bank doesn’t stew over Hunter, then or now.

                      08. The IMF insisted on Shokin’s firing. None of its reasons concerned Hunter.

                      09. The European Bank of Reconstruction and Development issued a policy statement demanding Shokin’s ouster. Hunter’s name doesn’t appear in the document.

                      10. There were street demonstration in Ukraine against Shokin alone. Every anti-corruption group in the country insisted he must be fired. When the prosecutor was finally pushed-out, the Kyiv Post described him as one of the most loathed figures in the entire country. I’m betting none of this was based on Hunter.

                      Please explain how pressuring Ukraine re Shokin was about Hunter when it was the President’s order, a established objective of the entire frigg’n U.S. government, and a goal shared with the whole gawdforsaken western world.

                      You really make up bullshit as STUPID as the Right’s faux Shokin scandal if you labored long&hard trying. If that’s the best you’ve got, Joe_dallas. you have NOTHING.

                    10. That Russian cell network was operating in Ukraine during the Biden Crime spree.

                      And you’re also neglecting Biden’s admissions on dealing with China’s spy chief and the messages regarding his sexual intrusions on his underage niece.

            3. “The laptop doesn’t lie, bernard11. The emails are damning.”

              Evidentiary tips from birthers are always a treat.

              The reckoning approaches, clingers.

              1. Yeah Arthur, we’ve heard all this before = reckoning.

                Try something more original, will ya? Your material is a little stale.

                1. You prefer the juicy freshness of ‘lock ’em up,’ ‘the socialists are coming,’ ‘the war on Christmas,’ and ‘my opponent is a criminal’?

                  1. Nah, some of your posts are imaginative and hilarious. Heck, I am a fan of some of your creative writing.

                    Lately, not so much. Kind of stale. Go lighter on the antisemitism.

                    1. Lately he’s been phoning it in. Maybe he needs a hug?

            4. Assuming we treat this like summary judgment and give the laptop the benefit of the doubt on all possible inferences, what’s the theory here? That after he was out of office, Joe Biden wanted a 10% cut on some amorphous deal with China and that the CEO of the company that offered him that deal subsequently became mad that Hunter Biden wanted to use the CEO’s company as a personal piggy bank and stopped him from doing so?

              Sounds like possibly bad business partners, but since Joe Biden had no public role at that point, I’m struggling to understand even the theory for calling him a crook.

          2. Well and the testimony and evidence from emails and messages.

            Don’t forget about those things.

            1. There is no testimony.

              1. What is it called then?

                1. What is it called then?

                  Bullshit.

                  My understanding of “testimony” is that it is given under oath and, usually, subject to cross-examination

  9. Prof. Blackman, you have two “thirds” in your post. Should be five things you liked.

  10. Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant.

    Pardon me while I catch my breath from laughing. What was Scalia smoking when he wrote this? And does Blackman seriously believe it?

    1. “Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant.
      Pardon me while I catch my breath from laughing. What was Scalia smoking when he wrote this? And does Blackman seriously believe it?”

      It’s part lie . . . part gullibility . . . part ignorance . . . part desperation . . . all movement conservative.

      1. All lie, all movement conservative, all desperate that Americans would be gullible and ignorant enough to swallow it, hook line and stinker.

        1. Scalia and other ‘conservative’ justices have voted against the ‘consensus’ conservative position numerous times. So you are full of it.

          RBG, Kagan, Breyer, not so much.

        2. I know, right? All those gullible moron Americans who accepted the system of checks and balances and a co-equal judicial branch for 200+ years were so fucking ignorant I can hardly stand it! It’s embarrassing! I say we burn this fucker down, who’s with me?

  11. Mitch McConnell:

    “I think this nominee will be a political asset for our candidates around the country.”

    Selected for her skill as a lawyer. Right.

    1. Fulfilling Trumps pledge to appoint originalists. So, no, not political.

      Political includes all other interpretations of the Constitution.

  12. This post is a joke, right? This new Justice has been groomed to be the another person whose political views will dominate her voting on the Court. Anyone who believes otherwise is a so much of a dupe that they do not warrant being listened to.

  13. To be clear, volunteering to be used as an electoral prop by the president is an example of her modesty, or her love of country and constitution?

    1. The best thing about the Barrett installation — beyond the Democratic response — will be when she starts speaking in tongues during oral argument.

  14. I’m no fan of Barrett, but I do think someone should warn her that there is a potential stalker running around.

    1. LOL…Ok, now that was funny.

  15. Moving on, since Justice Thomas has presumably now caught Covid, have we started our short-lists yet of African-American candidates for SCOTUS? (And no, Kirkland, not Obama. He’s probably too old, and in any event if Biden nominated him the Republicans would set the White House on fire.)

    1. I sense Obama is at least a 50-50 shot for one of those spots. Bryan Stevenson and Ketanji Brown Jackson are among the other names I have been hearing.

      As for age — Trump is younger than Biden, and Bill Clinton, George Bush, and Barack Obama are younger than Trump. Plus, if you expect to hold the (perhaps enlarged) Senate, age may become an attenuated factor.

    2. Moving on, since Justice Thomas has presumably now caught Covid, have we started our short-lists yet of African-American candidates for SCOTUS?

      Wow, Martin. If you were trying to demonstrate exactly how unbecoming of a human being TDS can make you, job well done.

      1. Don’t be so quick, LoB.

        There was a lot of grave-dancing around here when Ginsburg died.

        1. There was a lot of grave-dancing around here when Ginsburg died.

          Interesting take, and easy enough to measure. The primary thread I’m aware of is here — I see one off-color comment from a non-regular poster against scores of sentiments like “I didn’t like her politics, but may she Rest in Peace” and “I disagreed with many of her opinions. I wish that she had lived until mid-January 2021 (or that she had retired in June 2020).”

          Inconvenient facts aside, hopefully most sentient beings can agree there’s a fundamental difference between (1) appreciating the fact that the Supreme Court had an opportunity to go a different ideological direction following the unexpected death of a justice, and (2) actively wishing death on a living justice.

          Right?

          1. Check out Blackman’s posts.

            And don’t overlook the fact that there had been many comments expressing a wish for her death.

      2. If you read my comment as wishing death or disease on Justice Thomas that probably says more about you than about me. The ability to give someone you disagree with politically the benefit of the doubt is clearly long since gone. As it happens, I rather like Justice Thomas, because he’s the one conservative justice who definitely votes against his policy preferences from time to time. He has the courage of his convictions, and doesn’t confuse law and policy.

        That said, unlike some people I could mention I understand that the mechanisms of how viruses are transmitted and how they affect people are not matters of opinion, but facts that are indifferent to our approval or disapproval. Whether we like someone or not has very little to do with whether they will get Covid, or whether they will die from it. Whether they spend a lot of time in a room full of infected people without masks and whether they are old or young, on the other hand…

        1. Ah, ok. So your original statement that “Justice Thomas has presumably now caught Covid” was grounded not in glee, but ignorant fearmongering. Thanks for clearing that up.

          1. Perhaps it derived from the facts that

            (1) the White House is populated by a bunch of virus-flouting knuckle-draggers,

            (2) the clingers’ belligerent ignorance and reckless conduct have made the White House a viral hot spot,

            (3) Republican yahoos don’t observe simply courtesy and CDC guidelines even after they learn they have been infected,

            and

            (4) Justice Thomas fraternizes with clingers in general and has now visited the White House at least a couple of times for grandstanding superspreader events.

            1. MEEEEELTING!!!1!

              Poor Artie. Only three or four stages to go!

              1. Trump is out of money, out of time, out of favor, and soon to be out of office. The Republicans can’t afford any stages at this point, after being Don-conned into political irrelevance.

                Your only hope is begging for mercy from your betters, clingers. Don’t be ashamed to grovel. It’s your natural condition.

  16. 2016
    Republican Congresspeople: We arbitrarily create a precedent that no nomination for justice will occur in an election year. The people must decide.

    Democratic Congresspeople: But that’s not a precedent, and we have a couple of hundred days bef-

    Republican Congresspeople: “Use my words against me.” Let the next president make the nomination.

    2020
    Republican Congresspeople: We arbitrarily break the precedent we just created in 2016. We, uh, actually only meant it to apply when the presidential party doesn’t control the Senate.

    Democratic Congresspeople: Wait, but you declared this precedent only four years ago, and you didn’t signal any exception then. And now we have only a little more than a month until the election. Why break your own precedent?

    Republican Congresspeople: We’re in power, we make the rules. Also, I’ll dredge up some tu quoque fallacies and suggest that you made us do it.

    Sometime in the future
    Democratic Congresspeople: *do a single thing, any thing, that redresses the precedence-setting-and-breaking of congressional Republicans*

    Republican Congresspeople: *Pikachu face*

    1. Democrats: We arbitrarily ignore that Presidents ALWAYS make nominations to fill empty Supreme court seats, regardless of how close to, or even after an election, they occur.

      We arbitrarily ignore that, if the Senate is of the same party, those nominations are almost always confirmed.

      We arbitrarily ignore that, if the Senate is of the opposing party, those nominations are almost always rejected, and usually by just ignoring them.

      But if you want to argue that Lindsey Graham is an asshole, you’ll get no argument from me.

      1. if the Senate is of the opposing party, those nominations are almost always rejected, and usually by just ignoring them.

        Objection! Assumes facts not in evidence.

        1. Assumes facts gone over in these very pages not so long ago.

          1. In the last 50 years alone, Burger, Blackmun, Powell, Rehnquist, Kennedy, Souter, and Thomas were all confirmed by opposition Senates. Haynesworth, Carswell, and Bork were voted down. Garland was the only one who was ignored. This “norm” doesn’t exist.

            1. You might even have a point if the country was 50 years old, instead of 230. Hope you’re planning on baking a pie with those cherries you’re picking.

              1. You said there was a norm: the Senate doesn’t confirm/ignores nominees from a president of the opposing party. I showed you that the last 50 years shows no evidence of that norm. You’d think, if a norm was in place, someone would have followed it in the last 50 years.

                But fine, let’s go back 150 years. Fortas and Thornberry were filibustered in 1968. Brennan, Whittaker, and Stewart were all confirmed. Rufus Peckham and Edward White were confirmed in the 1890s, and William Hornblower and Wheeler Peckham were voted down. Two nominees were confirmed by opposition Senates in the 1880s, and three more by an evenly divided Senate. Another was confirmed by an opposition Senate in 1880.

                I count two, Fortas and Thornberry, that were not taken up in the last 150 years, 4 that were rejected, and 16 that were confirmed. How do norms work in your world, Brett?

      2. Brett, what long history of nominations are you referring to that allows you to write that nominations from an opposing party are “almost always rejected”? I can find only a few instances of nominations in election years with members of different parties, and none in the 20th century. I’m left with Melville Fuller (1888) and William Burnham Woods (1880) confirmed, and Stanley Matthews (1881), John J. Crittenden (1828), and three Millard Fillmore (1852-3) nominees for a single seat lapsed or postponed. (Adding the odd duck John Tyler would add one seat filled and one seat not filled in an election year, for a total count of 3 seats filled to 4 seats not filled.) Something that rare doesn’t merit an “almost always.” That’s not precedent.

        No, Senate Republicans in 2016 made a deliberate decision to make up a precedent that benefited them at the time. They were very clear about letting the voters decide; again, “Use my words against me.” Meanwhile, they broke that precedent at the next available opportunity. If you want to argue that any Democratic response is also an abuse of power, you’ll get no argument from me, but let’s not be surprised that they’re so tempted to do so in the face of such utterly flimsy pretense.

        1. I can find only a few instances of nominations in election years with members of different parties, and none in the 20th century.

          Keith Whittington has researched/written about this a good deal — one of his more recent posts is here.

          As shown in Table 5 of his 2005 paper linked in the above article (I can’t put two URLs in a single post), in the 19th century there were 7 late-term/lame-duck vacancies caused by death of a justice. In the 20th century, there were none. That’s not terribly surprising — justices don’t die in service very often, and there’s only a 25% chance that a death will fall in an election year.

          But the aggregate statistics, sparse as they are, do indeed demonstrate Brett’s point. Table 6 of the above paper shows that 100% of late-term nominations under a divided government were not confirmed (0 out of 4). You can debate whether that’s a “precedent,” but it’s certainly a pattern.

          (Interestingly enough, only 62% of late term nominations under a unified government were confirmed (8 of 13).)

          1. Link to Whittington’s paper I referenced above.

          2. The original comment was “if the Senate is of the opposing party, those nominations are almost always rejected, and usually by just ignoring them.” [emphasis mine]

            You’ve somewhat shifted the goalposts by going from “ignoring” to “not confirming.” In fact, the article you link to mentions that while there are plenty of examples of lower court nominations being ignored, the Supreme Court had enough public attention that the Senate would not ignore them even if it chose not to confirm them.

            Can you name another supreme court nominee that similarly ignored by the Senate?

            1. You’ve somewhat shifted the goalposts by going from “ignoring” to “not confirming.”

              Sorry, _dude, but as you can see up-thread, the question I was responding to was: “Brett, what long history of nominations are you referring to that allows you to write that nominations from an opposing party are ‘almost always rejected’?”

              In fact, the article you link to mentions that while there are plenty of examples of lower court nominations being ignored, the Supreme Court had enough public attention that the Senate would not ignore them even if it chose not to confirm them.

              It’s interesting you don’t cite any actual language from the paper. I’d suggest you check out Appendix A, which lists all 27 failed Supreme Court nominations and handily lists the Senate’s action (or inaction) for each. By my count, 12 out of the 27 show “no action,” “postponed,” or “tabled.”

              1. I was going by this Wikipedia chart. Only 11 of 30 failed nominations received votes, though some of the others were not completely ignored.

                1. Yup. Some occasional differences from Whittington’s list for whatever reason, but pretty much the same story.

          3. Thank you for the reply. I read the post and consulted the tables you indicate.

            One flaw in using Whittington’s data here is that he defines a late-term appointment as one done within six months of an election (see Table 4), but Merrick Garland’s nomination was over seven months before election day, and my own survey looked at the entire election year since one of the stated justifications for the delay was not considering a nominee during an election year. Taking Whittington’s data, a non-late-term nomination should succeed most of the time (6 to 1 pre-1900, 12 to 3 post-1900), so that doesn’t explain the response to Garland.

            Again, when I looked at the list of SC nominees to find seats filled or unfilled during the entire election year, the odds are a lot better for filling a seat during a Congressional/Presidential split prior to 1900 – 3 out of 7. Melville Fuller was nominated later in the year, but still six months out from election day (4-30-1888); William Burnham Woods was a lame-duck nominee (12-15-1880) but was approved anyhow; Samuel Nelson was nominated (2-4-1845) and confirmed (2-14) the month before Tyler left office. Whittington omits the two latter examples in Table 6, perhaps because he strictly separates *lame duck* and *late-term* appointments; meanwhile he omits the first example because, like Garland, Fuller was not a late-term nominee. Including those gives a more accurate picture of judicial nominations in the last year of a presidency.

            So in short, taking a view of the larger election year, there is not a clear pattern to seats being filled. Certainly, there isn’t a clear enough pattern to say, “Those nominations are almost always rejected,” as Brett did. With the very limited data we have, the only pattern is that the president fills the SC seat in an election year with a split government *sometimes*.

            1. We may quibble about whether the majority is “almost always”, but surely the data dispense with the fiction that it’s unheard of. There’s a reason people making that claim only go back about 50 years in looking at the record, and it’s not that the US government originated 50 years ago.

  17. It appears Prof. Blackman will not conduct a FantasyEotus (election of the United States) this year at the Volokh Conspiracy.

    Perhaps I will offer one on Thursday. Here are the likely points for prediction:

    1. Winner for president?
    2. Winner’s states won?
    3. Winner’s electoral votes?
    4. Control of House?
    5. Control of Senate?
    6. Presidential victory margin >2.0?
    7. Presidential victory margin >4.0?
    8. Winner in Pennsylvania?
    9. Winner in Arizona?
    10. Winner in Florida?
    11. Winner in George?
    12. Winner in Texas?
    13. Winner in Iowa?
    14. Winner in North Carolina?
    15. Winner in Ohio?
    16. CNN calls presidency by 2 a.m.?
    17. ABC, CBS, or NBC calls presidency by 2 a.m.?
    18. Fox calls presidency by noon Nov. 4?
    19. Any state legislature selects Electoral College delegates?
    20. House of Representatives chooses President?
    21. Jorgenson >2%?
    22. Hawkins >.5%?

    I’m thinking of offering an Amazon gift card to the champion. Anyone have a better idea for a prize? (Beer shipment is costly and generates legal issues.) Or a suggestion for another point of prediction?

    1. Anyone have a better idea for a prize?

      Winner gets to punch you in the face? The response would be enormous.

      1. How’s your alleged civility standard going, Prof. Volokh? Do you still try to claim your repetitive censorship is not partisan and viewpoint-driven?

        1. Crying for Papa Eugene to protect you from someone you perceive to be a bully? You are by far the least civil contributor to these comments I have witnessed. You call others clingers and bigots and constantly engage in fallacious argument, and now you are whining that a humorous comment about a consensual contest should be censored?

          Go fuck yourself, Artie. You add nothing to the dialogue.

          1. I am not asking for anything from Prof. Volokh. I am pointing out that he is a low-grade censor and vivid hypocrite whose faux libertarian masquerade includes a ‘principled free expression champion’ costume.

            I do not advocate for any censorship here. Not even with respect to the proprietor’s repeated use of a vile racial slur.

            I am not calling for a civility standard. I am noting that Prof. Volokh’s claim to be relying on a civility standard when censoring or banning viewpoints he dislikes is intensely weak sauce that works solely among his stale, intolerant, right-wing sycophants.

            Any other questions, clingers?

            1. What do you come here for? It certainly is not to educate, as your posts consist of nothing but insults and fallacies. Did it ever occur to you that you get censored because of the ennui your tedious tirades generate in the other commenters?

              1. May the better ideas win.

                Of course, that’s easy for me to say in modern America.

        2. Consider you call everyone a bigot and routinely say “open wide” suggesting people should be forced into your extreme ideology with compliance, it is pretty fresh to call for “civility” here…

    2. Arthur, I think delivery of the prize might be tough.

      I like the beer prize, though. 🙂

      1. “delivery of the prize might be tough”

        An Amazon gift card?

        I haven’t had a problem involving the United States Postal Service in 35 years of unusually heavy use. Electronic delivery might even be possible these days?

        My beer prize is always great, as a few Conspirators can attest. But delivery can be tricky consequent to the Twenty-First Amendment. If someone runs the table, though, perhaps I could figure a way to send a single bottle of aged Mad Elf, securely packaged. Or maybe even one of my few remaining bottles of Samuel Adams Triple Bock 1994 Reserve.

        1. *delivery of the prize may be rough*

          The postal system is going to be catching up with all those “lost” ballots for at least the week after the Election.

        2. Arthur…When I win your contest, I would like to personally collect that beer. And crack one open with you. The Sam Adfams sounds pretty good.

          1. Those Samuel Adams bottles are beautiful but, these days, iffy. I haven’t opened one in several years. They were lousy at first, then became good (after a few years), then became magnificent (after a decade or so), but lately I have heard that they often have turned by now, sometimes with debris and sometimes even becoming chunky.

            Mine have been stored on the side, in the dark, in a relatively constant cool environment, but I nonetheless wouldn’t rely on their quality. No complaints, though . . . they were enjoyable for a long time as they matured and I received one of my two cases as a gift.

            1. Beer rarely ages well. Compared to wine it has more light ketones and aldehydes that undergo condensation reactions.

              1. Home brewer here. (Mead and wine, though.) Beer certainly can age well, if strictly protected from light, and sealed against oxygen. I had a friend who forgot some bottles in his basement for a decade, and was delighted with how they tasted when he found them again.

                I suspect it depends heavily on the starting beer, though.

              2. That makes a splendid 20-year-old Thomas Hardy or Triple Bock even more special.

            2. A relatively constant cool environment … like a cave…where a troll would live?

  18. I think she is lying and will quickly put he personal opinions of policy into law. And we won’t have to wait long to see.

    1. If one believes a lie must be intentional to be a lie rather than just a mistake, then I disagree with you. I don’t think she’s lying. I think she truly believes what she says. But there can be significant differences in opinion around what it means to “preserve” the “republic.” You can even have a “democratic republic” while dramatically narrowing the right to vote.

  19. But she truly did not think her own views would be relevant.

    So, are you an idiot, or are you saying she’s an idiot?

    Because even with just three years as a judge, she established herself as one of the most conservative judges in the circuit. Her views are relevant, and they will continue to be relevant. And this is pretty obvious looking at judges as a whole… if judges were any good at setting their own views aside (and the senate any good at picking such judges) then we wouldn’t have so many obviously policy-driven decisions.

    So again: are you an idiot, or are you saying she’s an idiot?

    1. How would Prof. Blackman know what Justice Barrett ‘truly thinks,’ except as a rush of fantasy?

    2. she established herself as one of the most conservative judges in the circuit

      Adherence to the language of the law and Constitution is, of course, conservative. Belief in a living Constitution that can be bent and tortured to support today’s fashionable views, is poor, activist judging. But you knew that.

      1. Area man passionate defender of what he believes the Constitution says.

  20. I guess most on this blog are of the heathen variety (which is fine by me), but her belief structure should not be that much of a surprise to anyone who has ever dealt with Christian doctrines. It matches closely to what an un-corrupted church might teach and reflects a more pure protestant understanding of the subject.

    It also wouldn’t surprise me if she ends up being on the more moderate side of the court. Her vote might be to overrule some liberal precedent, but really Roe and its ilk have no grounding in the Constitution. Those were just pure “legislating from the bench”. But on other issues I suspect she is going to fall more like Kennedy.

    1. It also wouldn’t surprise me if she ends up being on the more moderate side of the court.

      So you expect her to make a 180 from her behavior for the last three years? On what basis?

    2. It matches closely to what an un-corrupted church might teach and reflects a more pure protestant understanding of the subject.

      This is your politics leading your faith.

      Dangerous.

      1. As a Catholic, she might be offended to have her beliefs described as “pure protestant.”

  21. I’m really just happy to note her outright rejection of the “singular they.”

  22. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside.

    Isn’t it the job of a Senator to pursue policy preferences that are in line with those that their constituents favor – even considering the preferences and interests of those who did not vote for them?

    1. It’s the job of a Senator to pursue the policy preferences they ran on pursuing, which ideally are their own preferences, because otherwise they’re not likely to actually do it.

      It’s the job of the constituents to elect a Senator whose policy preferences are in line with their own.

      And, yes, a Senator should at least consider the preferences of those who didn’t vote for them, though not to the point of betraying campaign promises.

  23. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside.

    Isn’t it the job of a Senator to pursue policy preferences that are in line with those that their constituents favor – even considering the preferences and interests of those who did not vote for them?

    1. That was so 4 years ago!

      Now we threaten to withhold Federal aid during raging firestorms displacing thousands of people and a pandemic that has already consumed more than 220K American lives just because a state might have voted for She Who Shall Not Be Named (but was promised to go to jail and hasn’t yet.)

  24. Justice Barrett: “I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it.”
    “A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her.”
    I watched Barrett’s conformation hearings. I believe her. If the Republicans thought she will be an automatic vote, I think they will be disappointed.

    1. For sure. Heffalumps have their activist instincts, too.

  25. Lawyers should not be judges. The jobs are almost unrelated.

    A separate stream of education and careers should be established. Judges should attend judging school after finishing a mid career in another field that is not lawyering. For example, retired military or plumbers or any other occupation should apply to judge school. Pre-judge school should include a course in Critical Thinking, the Scientific Method, and Formal Ethics. Then attend judge school should take 3 years. The Third Year 3J should consist of judging cases under supervision, in various jurisdictions for 3 months each. The primary message of judge school should be, apply the law, do not make the law.

    Judges should have no immunity whatsoever. They may be subjected to professional standards of due care and police themselves. If they make a damaging mistake, their should have insurance to compensate their victim. Insurance companies may ask a repeatedly tortfeasing judge to step down or lose their coverage.

    Policy goals should be set by the elected legislatures, and judges should be measured against achieving them. For example, lower the crime rate in a jurisdiction. Increase business. Decrease pollution. They should get 5 years to achieve their end.

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The Timing of DNC v. Wisconsin State Legislature

The Supreme Court released its opinion about thirty minutes before now-Justice Barrett was confirmed.

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Tonight around 7:30 ET, the Supreme Court decided DNC v. Wisconsin State Legislature. Around 8:10 ET, then-Judge Barrett was confirmed. And she took the constitutional oath from Justice Thomas at the White House after 9:00 ET.  Wow! The Supreme Court usually moves at a glacial pace. But tonight, in the span of three hours, the Justices sharply fractured on a case that could affect the outcome of the election, a new Justice was confirmed, and the senior associate Justice held a late-night oath ceremony at the White House. Wow!And the Chief Justice will administer the judicial oath on Tuesday.

The timing of the confirmation and the constitutional oath were out of the Court's control.  (Query why the Chief did not administer the constitutional oath; methinks he did not want to be anywhere near the White House). But the timing of the opinion was within the Court's control.

The application to vacate the stay in this case was filed on October 14. A response was filed on October 16. And the case has been pending for nearly 10 days. Why did the opinion drop Monday evening, moments before Justice Barrett was confirmed? At first, I was a bit cynical and suspected some gamesmanship. But on further reflection, there is a far more innocuous reason.

As soon as Justice Barrett takes the judicial oath on Tuesday, she can begin to participate in the Court's business. And, she will be able to vote on any not-yet-released case. After all, a case is not final until the opinion is issued. By waiting till the last possible minute Monday evening, the Justice were able to work as hard as possible on this important case. But had they waited another day, Justice Barrett would have had to cast an immediate vote, and could have potentially altered the balance of the majority. Her colleagues spared her that initial baptism by fire.

But you better believe that Justice Barrett will have to decide how to proceed on an election case very soon.

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  1. Could a Justice cast a vote in a case where she was not present when evidence was given to the court? Certainly, in a case with oral argument, I would think that, in the case of a newcomer Justice, the court would have to (a) decide the case without the new member, or (b) have new oral argument, with the new Justice participating.

    1. . . . I do get that this was not that type of case. But I’m just asking, for if/when the court is expanded to 11 or 13 (or 23, or whatevs).

      1. I don’t know about federal courts, but at the Appellate Division in New York, if there is a short bench (only four judges) at oral argument, and the vote is 2 – 2, they give the briefs and the record to a fifth judge who casts the deciding vote.

    2. Could a Justice cast a vote in a case where she was not present when evidence was given to the court?

      Yes.

  2. (Query why the Chief did not administer the constitutional oath; methinks he did not want to be anywhere near the White House)

    Maybe she asked Thomas?

    1. I thought there was some custom that the senior justice administered the oath.

      But maybe not, and even if so, maybe Thomas is not the senior justice.

      Just guessing.

  3. Quote: “But you better believe that Justice Barrett will have to decide how to proceed on an election case very soon.”
    I think Justice Barrett will decide on the merits of the case, and if Biden wins, he wins. Unlike if it had gone to the House, where even if Trump won by 10 million votes, Biden would be found the winner.
    Obviously she is the better choice for deciding the election. But don’t think that will stop Democratic whining and violence if Biden loses.

    1. Um, you are aware that in these matters, each state gets one vote in the House, which is cast according to the majority of House members from that state?

      So what matters is not whether you have a majority of House members, but if you have a majority of members from a majority of states. Having every House member from a given state is just bouncing the rubble, gets you nothing.

      Of course, the vote is by the incoming House, so it’s at least possible that the Democrats could end up with the sort of majority that actually matters. But I don’t believe they’d prevail under the rules at the moment, assuming everyone voted by party.

      1. If Trump won the popular vote by 10 million votes, it’s almost certain that Republicans would re-take the House as well. But you’re right to point out that a Presidential election in the House would be by delegation as opposed to by member.

    2. It’s pretty impossible to imagine a scenario where Trump wins by 10 million votes but does not win the Electoral College.

      1. I’ve got a fairly vivid imagination, but I’ll grant the scenario isn’t terribly plausible. You’d basically need the swing states to go Democratic, while either the reliable ‘blue’ states didn’t bother showing up to vote, or turnout went though the roof in ‘red’ states.

        Now, I understand the Biden campaign is saturating the swing states with advertising, so that part is plausible. But hatred of Trump will be enough to guarantee Democrats turn out in ‘blue’ states.

        So you’d need an insanely high turnout in ‘red’ states for that scenario, and I don’t see how that happens and Biden still wins the swing states.

  4. Republicans are laying the foundation on which Democrats will build America’s future.

    It’s like the clingers never read any Twain.

    Half-educated has consequences.

    1. In the sense that, when you demolish a house, the rubble sits on the foundation, sure.

      Venezuela in the North will rest on a foundation built by Republicans, but it will rest there as a ruin built by Democrats.

      1. typical progressive
        Believing they can achieve the utopia of scandinavia using the policies of the USSR, Venezuela and cuba

  5. Bush v. Gore will be a precedent, in more ways than one.

  6. Consistent Roberts opinion: federal courts should not interfere in state laws during an election. Seven days left, let’s not tie up Wisconsin.

    1. They should, however, be willing to grant an injunction requiring that the ballots accepted in violation of the law be segregated from the ones in conformance of it, so that later litigation would not be futile.

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Supreme Court

Should Justice Barrett Recuse from 2020 Election Litigation? (Updated)

There's no precedent for a recusal, but there's also no precedent for the current situation.

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This evening, within hours of the Senate's party-line confirmation vote, Amy Coney Barrett was sworn in as the 103rd Associate Justice of the Supreme Court of the United States. While the Senate was preparing to vote, the Supreme Court issued yet another order in an election law case concerning state election rules. Like the Senate, the Court divided along ideological lines.

Now that Justice Barrett is on the Court, it is inevitable that she will be asked to participate in another election case. Litigation is ongoing, and more cases are likely to be filed between now and the election (and perhaps even after). Should she recuse from such cases? Here are my tentative thoughts on the matter (some of which I expressed here).

The relevant portion of the U.S. Code* provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Although this provision does not formally apply to Supreme Court justices, they have traditionally sought to comply with these rules, though erring on the side of not recusing. Unlike on lower courts, there is no one to replace a recused justice, so if one of the nine sits out a case, it is necessarily more difficult for the petitioning party to prevail. Another caveat is that each of the justices gets to make their own recusal decisions; they cannot be forced off of a case by their colleagues.

As traditionally understood, recusal is required when a judge has a financial interest in the case, is related to one of the parties, or has worked on the case prior to becoming a judge. So, for instance, Justice Alito has recused multipe times due to his financial holdings, Justice Sotomayor recused in American Electric Power v. Connecticut because the case was before the U.S. Court of Appeals for the Second Circuit while she was still a judge there, and Justice Elena Kagan recused from matters upon which she worked in the Solicitor General's Office.

Recusal is also required when a judge has expressed an opinion on the merits of the case or otherwise demonstrated bias, such as by making extrajudicial comments about one of the parties. On the other hand, recusal is not required because of a judge's prior rulings, statements about general legal matters or even relationships with government officials with matters before the Court in their official capacity.

Applying these standards, it would have been appropriate for Justice Ruth Bader Ginsburg to recuse in a 2016 election case involving Trump, due to her comments expressing her desire that Trump lose, but she had no cause to recuse in cases challenging Trump Administration policies just because she said bad things about Trump the person. Likewise, Justice Scalia may have been required to recuse in a case against Dick Cheney, the person, but he had no obligation to recuse in the case against the Vice President's energy task force (as he explained here).

As odd as it may seem to some, federal judges are under no obligation to recuse in cases involving a prior benefactor, and there is no precedent for judges or justices recusing because a case implicates the interests of the President who nominated them. Justices Gorsuch and Kavanaugh did not recuse in Trump v. Vance and Trump v. Mazars, and Justices Ginsburg and Breyer did not recuse in Clinton v. Jones. Likewise, the only one of President Nixon's appointees to recuse in United v. Nixon was William Rehnquist, who recused because of his work in the Office of Legal Counsel, not because he was a Nixon appointee.

Based upon the above, there would seem to be no basis for Justice Barrett to recuse from a 2020 election law case. But is it that simple?

During her confirmation hearings, Senate Democrats suggested Justice Barrett should recuse from election litigation, and former judge Michael Luttig wrote an op-ed arguing Justice Barrett may be obligated to recuse under the Supreme Court's decision in Caperton v. A.T. Massey Coal. Central to these arguments are not anything that Justice Barrett has said or done, but comments made by President Trump suggesting a reason to confirm a nominee prior to the election is to ensure that there are nine justices for any such dispute. Is this enough to justify recusal? I am not so sure.

Without question, Trump believes that a conservative justice is more likely to support the formalist, rule-bound arguments being raised by Republican office holders and campaigns in current election disputes, and wanted a justice confirmed for this reason. He may even think that any justice he appoints will feel indebted to him. But this tells us more about President Trump's motivations than it does about Justice Barrett's ability to adjudicate such cases fairly, and there is little precedent for judges recusing because of things litigants have said about them (as opposed to comments judges have made about litigants). Thus, President Trump could not get a judge to recuse just by disparaging his ethnicity or questioning his fairness (and this is as it should be, or litigants would be tempted to engage in manipulative behavior). Likewise recusal is never required just because a case is controversial or politically fraught.

It is also not clear that the importance of a case to a nominating president is enough to trigger recusal. Recall that when Justice Stevens retired, President Obama wanted to be sure that whomever he appointed would be able to participate in the pending ACA challenges (and not because he lacked any inclination about how such a justice would rule). He nominated his own Solicitor General, Elena Kagan, who had conveniently walled herself off from all ACA-related matters in the Justice Department and would not have to recuse in NFIB v. Sebelius. There is little question that had she not taken such actions at DOJ, she would not have been nominated (and that seems to have been the point), as President Obama was concerned about the potential outcome of the challenge to the Administration's central domestic policy initiative. Despite these facts, I was unconvinced by the arguments for Justice Kagan's recusal then, and I am not sure why the arguments for Justice Barrett's recusal are more persuasive now.

Are there reasons why Justice Barrett might still decide to recuse? Perhaps. Justice Kagan's Justice Department work was inside baseball. President Trump has repeatedly broadcast his desire to have a ninth justice who could help deal with contested ballots. Insofar as recusal rules are intended to help ensure public confidence in the courts, different conclusions may be justified where, as here, we have a President who insist upon making precisely the sorts of comments that could cause reasonable people to question a new justice's fairness. As I noted in this Washington Post story, President Trump's own norm-breaking behavior may justify a departure from the traditional norms of recusal. His repeated comments about the role of courts in the election—and the Supreme Court and his nominee in particular—are high-profile that they might create the sort of appearance problem that the recusal rules are designed to address. Simple prudence may counsel recusal in a special case like this. After all, we've never had a justice confirmed in the midst of an election before.

My tentative conclusion is that Justice Barrett has no obligation to recuse, and that her colleagues would agree based upon past practice. But I think it's a close call, largely due to the President's own intemperate and inappropriate behavior combined with the unusual timing of Justice Barrett's confirmation. If any recusal motions are filed, I am curious as to what arguments they will make, and how well they distinguish the present situation from prior practice.

At her confirmation hearing, then-Judge Barrett said she would take the possibility of recusal very seriously, discuss the matter with her new colleagues on the Court, and consider their advice. Should the prospect of recusal get raised, I expect she will do so. And if, in the end, Justice Barrett decides to recuse the President will have no one to blame but himself.

UPDATE: A few updates to the post.

First, on Tuesday morning, a motion for Justice Barrett's recusal was filed in Republican Party of Pennsylvania v. Boockvar, and it cites this blog post.

Second, last night, after the Senate vote, Justice Barrett was sworn in at the White House. The event was broadcast on TV, and is already being used in promotional videos by the President and his reelection campaign. Does this change anything? Perhaps, but I am doubtful.

The strongest argument that the use of these videos counsel in favor of recusal is that the videos themselves, and Justice Barrett's willingness to participate in the event, somehow indicate that she favors the President's re-election. If such an inference could be drawn, it would support the argument for recusal, much as Justice Ginsburg's comments expressing her desire that Trump lost the 2016 election counseled for her recusal in 2016 election cases. Of course, Justice Ginsburg did not recuse when such a case came before the Court, and there is a difference between drawing an inference from a justice's own explicit conduct and drawing one from videos produced by third parties. The case for recusal in the former instance is far stronger.

Finally, a small technical matter. The relevant provisions of the U.S. Code do include "justices" in those covered, but it's generally been understood that Congress could not enforce these limits other than through impeachment. Likewise, the federal Code of Conduct for United States Judges does not formally apply to justices, though justices have generally sought to abide by the Code's requirements.

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  1. No. No heckler’s veto of justice.

  2. Uh. No. You don’t get a 6-3 court and then not use it to help you win. The Rs got their prize, they will use it.

  3. It’s upon Amy Coney Barrett, now, to save America by voting in Trump’s favor, should the election come to that. As unlikely as an expanded Supreme Court would be under a hypothetical Biden Administration, we need ACB to completely put a cap on that by affirming a Trump victory.

    1. Just not enough bigots, incels, hayseeds, religious kooks, and disaffected, uneducated clingers left in America to position Trump for another Electoral College trick shot.

      Instead . . . The reckoning.

      See you guys next week. Then again in January. After that, not so much.

      1. Just not enough bigots, incels, hayseeds, religious kooks, and disaffected, uneducated clingers left in America to position Trump for another Electoral College trick shot.

        Oh, I don’t know. Seems Anti-Fa (Fascist meaning Capitalism), BLM, the Democrat Riots, and others are positioning Trump quite well for re-election.

        See you guys next week. Then again in January. After that, not so much.

        Oh, you’re planning to leave after Trump wins re-election? Reason will be all the better afterwards.

  4. So if a president keeps the deal under the table, it’s legit, but if he speaks the truth publicly, that’s forbidden? Wonderful set of incentives.

  5. President: “I want to confirm this justice so that the Court can help me to win re-election.”

    Senate: “We want to rush through this nominee so that the Court can help us to win re-election.”

    Barrett, in hearings: “Who knows, lulz.”

    Adler: “It’s a close call, because I can’t find relevant precedent.”

    I don’t think we have to be studied idiots about this. There will be a clear question as to Barrett’s impartiality in any election dispute that reaches the Court, particularly one that could ultimately decide who wins the presidency. Trump and the Senate have placed her on the Court, on an expedited basis, precisely to help them in a close race.

    Kavanaugh and Gorsuch – no. We can dissociate them from the current mess that Trump and McConnell have created. They may not be impartial, but they won’t be any more impartial than any other judge or justice concerned about the fate of our country. But Barrett’s lack of experience, her rushed review, and repeated statements about what this is all about raise clear questions about her impartiality in any election dispute involving Trump. Don’t be ridiculous about it.

    1. Your fear is that she will rule in favor of complying with the US Constitution.

      Should Kagan , Sotomayer Breyer recuse because that would rule in favor of the democrats ?

      1. You didn’t even bother to read my comment, huh?

        1. You comment strongly suggested that ACB should recuse because of her potential bias. You singled her out.

          Why omit Kagan, Breyer or Sotomayer who have shown political bias in other cases.

  6. Barrett should recuse from all election cases this season. Otherwise she risks looking as if she is picking and choosing, during what may be a protracted process which will deliver who-knows-what to the Court. Post election chaos could deliver a participant Barret a dilemma from hell. She could find herself torn between one alternative guaranteed to deliver a powerful blow against the Court’s perceived legitimacy, and another alternative which she believes would decide the case wrongly. Barret would be wise not to put herself, the Court, or the nation in that position.

    1. “Barrett,” of course. No ed function.

    2. And you, being so neutral and bipartisan, would also have wanted RBG to recuse herself from all Trump-related cases.

      Yes?

      1. Yes. I said so at the time. I went farther, and suggested she had earned impeachment.

        I managed that without being particularly neutral or bipartisan, by the way. It sufficed to be merely an un-neutral, somewhat partisan institutionalist—with a belief that norms are indispensable.

  7. Only a jew spitting sour grapes would raise a question of recusal. Same silly argument can suggest that Kavanaugh should recuse, or maybe all christians should recuse because the anti-christ is running against Trump.

    Case Western should look at juggling its roster before the world figures out the scam.

    1. Pavel, you are the Borat of the Volokh Conspiracy blog.

  8. “Without question, Trump believes that a conservative justice is more likely to support the formalist, rule-bound arguments being raised by Republican office holders and campaigns in current election disputes, and wanted a justice confirmed for this reason.”

    I question this because it’s giving Trump way too much credit about his thought process. First of all, Trump obviously isn’t “rule-bound” because he keeps hinting that ballots counted after Nov 3rd are illegitimate. That’s obviously not the rule and never has been.

    More broadly, Trump doesn’t think about conservative jurisprudence per se, and I doubt he’s ever used the word “formalist” in his life. He just wants five votes to keep him in power no matter how outlandish his legal theory is and he expects to the justices he appointed plus Thomas and Alito to be team players on this. Given Kavanaugh’s quasi-endorsement of this bizarre “we must know on election night” principle, I can’t say that’s a bad bet for him.

    1. Ballots *counted* after November 3rd or ballots *received* after November 3rd?

  9. So the other 8 justices get a pass in acting on partisan impulses?

    Bush v. Gore was a 7-2 decision on the merits (5-4 on the remedy), and as the ballots were going in Bushes favor anyway during recount. And besides, not being able to pick and choose which districts to recount seems to be obviously correct … the point being that the case everyone points to as a “partisan” court moment … wasn’t really.

    Controversy over mail in ballots seems to be a legitimate controversy, when the election is over what happens? The answer isn’t obvious. I trust barret to act objectively in these scenarios … if that objectiveness means rule in favor of the Republicans, she isn’t doing anything different than anyone else is doing.

    And finally, we are all acting like this will actually change the election outcome … we are all looking at the same polls right? And frankly, the arguments of voter suppression cause covid don’t make a whole lot of sense given that this year record turnout is excepted. So idk what the controversy is. Recent court cases are legitimate disputes about relatively minor issues.

    1. No, the recounts had Gore winning and the justices did engage in partisan hackery because Wikipedia wasn’t around and we couldn’t simply look up the 1876 presidential election which went undecided into 1877. Btw, Kavanaugh and ACB helped Bush steal the 2000 election so they have the deaths of all the Iraqi babies Bush slaughtered along with the soldiers that unnecessarily died and were injured along with the $3 trillion flushed down the toilet…so way to use your lawyerly talents in the name of Jesus!!!

      1. Independent review found the margin of victory increased as the recount process went on. Furthermore, fundentally you cannot simply only recount the districts you want to recount.

        1. Aladdin’s Carpet : Independent review found the margin of victory increased as the recount process went on.

          As a factual matter, you’re completely wrong. The review tallied the Florida vote using different criteria and Bush won sometimes, Gore others. Take overvotes as an example : They were ballots where the vote both punched (or checked) a candidate and wrote his name as well. Technically they were spoiled votes, but by the Florida constitutional provision that ballots should be counted when the intent of the voter is clear, overvotes were one of the easier calls.

          There was a hearing scheduled before Judge Terry Lewis to resolve the question of overvotes when the conservative justices on the Supreme Court intervened to install Bush as president. If overvotes were counted (as clearly they should have been per the Florida constitution), Gore would have won – per the independent review.

          1. If I recall correctly, there was only one scenario found where Gore ended up with more votes.

      2. helped Bush steal the 2000 election

        My days of not taking you seriously are definitely coming to a middle.

      3. Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote
        By FORD FESSENDEN and JOHN M. BRODER
        “George W. Bush would have won even if the Supreme Court had allowed the statewide manual recount that the Florida court had ordered to go forward.”

        – NY Times 2000 Election Report
        https://archive.nytimes.com/www.nytimes.com/pages/politics/recount/index.html?p=041TUJ041TRg47nWF012000mXfgkXflT

    2. Aladdins comment “And besides, not being able to pick and choose which districts to recount seems to be obviously correct … the point being that the case everyone points to as a “partisan” court moment … wasn’t really.”

      the resolution to the “contest ” was required to be done at a state wide level under the Florida election code. The Florida SC was the one that only required it in selected counties (undervote v overvotes)

      It was the Florida district that got it correct.
      The US Supreme court got the right answer, though for the wrong reason.

    3. I trust barret to act objectively in these scenarios …

      Why would you do that?

      If Trump trusted her to act objectively, he wouldn’t have nominated her.
      If McConnell had trusted her to act objectively, he would have steered Trump differently.

      The top Republicans have been very forthright on their expectations: If they had any doubt that she would vote for Trump on the SCOTUS, she wouldn’t be on the SCOTUS now.

  10. Whatever happens, we can be sure it will be proclaimed illegitimate by the left unless they get exactly what they want.

    1. You don’t think we’re going to be hearing cries of illegitimacy from Trump on November 4th?

      1. Thats why she’s the judge and you’re the …

        1. She still hasn’t ruled on my motion for a bad court thingy.

          1. Nice Simpsons seque… 🙂

      2. I also heard Trump is bad for doing that sort of stuff the left does routinely.

        1. ok come on, surely the president of the United States can be held to higher standards than idiotic activists right? Did Obama bar entry of the white house from Trump?

          1. No. Double standards are bad

        2. Trump is bad because he’s a sadist who revels in the pain of others. If you can’t understand how he’s materially different from whatever image of “the left” you have in your mind, you’re either willfully blind or a sadist yourself who sees nothing wrong with his behavior. Which left wing politicians are laughing about a journalist getting shot by rubber bullets, praising US Marshalls for killing someone because they didn’t want to arrest them, or openly praising a Congressman who assaulted someone? Which left wing politicians are threatening aid to states because they don’t like their governors and thinking that’s funny to do? I wouldn’t be surprised if you are a sadist of course, lots of Trump support is motivated by sadism. I see it here all the time.

          1. I’d prefer better behavior, but we tried that and we were told Mitt Romney would bring back slavery. So bad behavior was the only choice left.

            Go ahead and name-call if you want. It’s all the left does any more. Complain, name-call, point fingers, plot vengeance for some half-remembered slight from long ago.

            A long time ago we used to hear liberals say they wanted to help people. They don’t say that any more. Now they only talk about how they can punish Americans and about why we deserve it for being chumps or deplorables.

            1. Nah, Ben_ — It’s you and the deplorables who deserve it. The chumps and other Americans deserve better.

            2. Open wider, clingers. Better Americans are about to build a better America . . . On a foundation of crushed clinger aspirations.

              1. Agreed. It will be a great day when you stop clinging to your delusional aspirations.

              2. Walking bandy-legged today after you opened wide and took that big Justice Barrett ‘L’ right in the rear last night, Rev?

            3. Ben…you can always tell when a direct hit is scored. The amount of hand-wringing and squealing (like a stuck pig) rises to a crescendo. Yeah, I’d say there is a direct hit here.

              Next up, confirmation of district court judge #163.

              For eight years, all we heard was that elections have consequences. I could not agree more. They do.

              1. We made people mad and upset hooray! The language of the sadist.

                1. You people get mad and upset about everything. If we let your childish emotions control others, we could never leave the house.

                  1. Yeah, people who think its funny when others are hurt does make me upset. I think that’s a normal reaction unless you’re a sadist who likes hurting others?

                    I decline to not be upset when someone revels in violence. I decline to be cordial to be people who would gleefully cheer as people are hurt.

                    What’s adult about liking the pain of others? Nothing. It’s just sadism and personality disorders.

                2. Crybullying doesn’t really work any more.

                  1. What is crybullying? I just pointed out that sadism is bad. Is it bullying to do that now? “Stop bullying me by pointing out that I have sadist personality traits! It makes me feel bad!”

                    If you revel in the pain of others, you’re going to be called out for it. You can’t enjoy seeing others hurt and not expect to be criticized.

            4. “So bad behavior was the only choice left.“

              “Look at what you made me do.” The classic language of the abuser.

              “Complain, name-call, point fingers, plot vengeance for some half-remembered slight from long ago.”

              Literally what Trump does at every rally. And literally part of the justifications for how SCOTUS is treated: they’re using Bork as a justification still.

              “ They don’t say that any more. Now they only talk about how they can punish Americans and about why we deserve it for being chumps or deplorables.”

              Literally have rally’s with “lock them up” chants. Literally have a President talking about “retribution.” Literally have a President who was threatening aid to a state as punishment for them having a Governor of a different party.

              Congrats Ben_, while there is possibly hope for you because you don’t openly fantasize about murder, I think you might be in the Arktenberg “I am actually just a bad and violent person and am very proud of that fact” club.

              1. You should go see a psychiatrist. They have medication to help you so you no longer have to be obsessed with Trump or suffer anxiety from your lurid fantasies.

                1. What lurid fantasies am I having? I am literally describing what Trump says and does.

              2. Also note: not a word about helping people.

                Does anyone else remember when liberals had motives that weren’t all about hate or fear of one of their numerous bogeymen?

                1. I still do. And I don’t think the emerging fascist party has any room to talk about hate and fear and bogeymen. Trump is trying to use Cory Booker as bogeyman about ruining the suburbs.

  11. There is no doubt about what she will do – if the opportunity comes, she will play her part and help Trump with the coup. The only question is what, if anything, we as a country do about it.

    1. Just like there was no question Roberts was going to kill the ACA. Or how the moment the GOP had control of the house, Senate, and POTUS in early 2000s they were going to outlaw abortion and create a literal handmaid’s tale.

      Got it.

      1. Instead they just slaughtered 600,000 Iraqis and inaugurated the modern surveillance state. Much better.

        1. Pretty amazing what Republicans can accomplish when Democrats are 110% own board with it as well

          1. I mean yeah, with a few exceptions, most Democrats suck too (and were even worse during the Bush years). Not sure how that’s a defense of the Republicans’ wrongdoing, particularly when they were leading the charge.

    2. You will do nothing. OK maybe throw some firecrackers and tear down a statue. Salute.

      1. Lmao yeah, you’re probably right about that. But still far better than you, who would happily lick the boots of any fascist thug with the will to power.

  12. No recusals. It is time to show the power that the conservatives hold.

    1. By doing what? Throwing out legitimate ballots using legal sophistry? Sure go ahead and show your power that way. I’m sure that won’t have any negative long term consequences.

      1. Throwing out ballots that do not meet the requirements of the law, as debated by the legislature, and signed into law by the executive.

        Last nights ruling, enforced the law as written. Unless you know the law violates some other statute, and SCOTUS missed it. Maybe quick telegram to Roberts will help him recognize his deficiencies.

        1. How dare you suggest COVID doesn’t allow judges to create new election laws to favor Democrats?

          I don’t feel safe on this board anymore.

      2. Like not throwing away the legitimate ballots getting Franken the win or Rossi the win

  13. “If any recusal motions are filed, I am curious as to what arguments they will make, and how well they distinguish the present situation from prior practice.”

    Hmmm…. The recusal motion decline that saved nine…

  14. Why, she’s loyal to W Bush and not Trump…only Justice Thomas is loyal to Trump. I heard ACB got a full on “lady boner” when W Bush did shock and awe and she was screaming at Fox News for Bush to “slaughter as many Iraqi babies as you can! Jesus and the Pope are with us in the morally just war because those Iraqi babies messed with Texas…and nobody messes with Texas!!!!”

  15. The relevant portion of the U.S. Code provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Although this provision does not formally apply to Supreme Court justices…”

    How do you figure? The statute says that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. §  45(a). How much more formal would you like Congress to make it?

    As traditionally understood, recusal is required when a judge has a financial interest in the case, is related to one of the parties, or has worked on the case prior to becoming a judge.

    I agree that it’s understood that way, but I think it has less to do with tradition than the fact that Congress has expressly demanded it. 28 U.S.C. §  455(b)(2)-(4).

    1. Is not the distinction that inferior courts are the creatures of Congress, while SCOTUS is a direct creation of the Constitution, and consequently it is of doubtful constitutionality for Congress to impose recusal requirements on SCOTUS Justices.

      Article 3 does say :

      “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make”

      so it is possible that Congress might seek to include recusal requirements as part of any regulations it might impose on SCOTUS’s exercise of its appelate jurisdiction. But without explicit mention that a regulation is seeking to regulate SCOTUS’s appelate jurisdiction, it seems unlikely that we should construe a general rule for regulating the conduct of judges as applying to SCOTUS’s appelate (but not original) jurisdiction.

      For, er, noscitur a sociis type reasons.

      1. I have trouble seeing how

        1. Congress’s authority to regulate recusal would vary between Supreme Court and lower court judges;

        2. Congress’s authority to regulate recusal in the Supreme Court would vary depending on the type of case involved;

        3. The latter distinction is so obvious that it should be inferred when the statute is silent about it; and

        4. The latter analysis would implicate the noscitue a social canon.

        If you have any authority in support of any of those points, I’d be legitimately fascinated To read it. To my knowledge, every Supreme Court justice considering refusal has taken it as a given that § 455 applied to them.

        I think what probably happened is that Prof. Adler confused the recusal statute with the Code of Conduct for United States Judges, which does not purport to apply to the Supreme Court.

        1. Where in the Constitution do you find Congress’s authority to regulate the behavior of judges ?

          I find possible authority as regards inferior courts in the words “and in such inferior courts as the Congress may from time to time ordain and establish” in Article 3, where the ordaining and estabishing might be taken to include regulating; and in Article 1 “To constitute tribunals inferior to the Supreme Court” – but these apply only to inferior courts, not SCOTUS.

          And I find the part of Article 3 that I mentioned in my comment above, which might perhaps be taken as a power to regulate SCOTUS judges in the exercise of their appelate jurisdiction.

          But where do you discover any such Congressional power to regulate SCOTUS judges in the exercise of their original jurisdiction ?

  16. It would be playing into the narrative that people like you and Ilya are trying to create that a routine exercise of proper Constitutionally provided power from a duly elected government is somehow illegitimate so no…

  17. “Simple prudence may counsel recusal in a special case like this. After all, we’ve never had a justice confirmed in the midst of an election before.”

    I don’t know what you meant by “in the midst of an election,” but between 1789 and 2020 there have six occurrences of a vacancy arising on the Supreme Court during an election year (and before the election itself), a nomination being made, and a Senate majority belonging to the same political party as the President confirming the nominee. Justice Barrett’s confirmation marks the seventh such time this has occurred.

    1. And the first time since the McConnell rule was instituted, in violation of it.

      1. The current President is in the same party as the Senate majority. Anyone comparing the situation in 2020 with that in 2016 is either confused or deliberately misleading others.

  18. What’s the point of a Supreme Court justice if not to rule on cases? She should do her job.

  19. Smug and self-assured. And now appointed for life. God help us.
    “She would not say, for instance, whether it’s a crime to vote twice, or whether Article II allows Trump to ‘do whatever I want,’ or whether a judge’s ethnic or racial heritage constitutes bias. She wouldn’t answer questions about whether women seeking to terminate their pregnancies could face capital punishment.
    The refusal to answer even the simplest yes/no questions about what black letter law means, and who it binds, has the effect — intentional or not — of unsettling what was once widely accepted and understood. It’s the judicial equivalent of ‘flooding the zone with shit’ and the result is the same when it’s done in law as it is when it’s done in media — it renders all that was known to be certain as indeterminate and up for grabs. It puts us all at the mercy of powerful deciders and consolidates the power to decide those newly open questions in an authority figure. It recalibrates both truth and power as emanating from someone else.”

    1. Kafantaris, were you quoting from someone? If so, you picked a good quote.

  20. Isn’t recusal for personal interest or involvement in a case? What is her involvement in the election, except as a voter, like everyone else?

  21. It is telling that Senate Democrats voted unanimously against ACB, not on the grounds that she was unqualified, or even on the grounds that they didn’t want a conservative, but as revenge for Garland.

    And yet now they cackle that she needs to recuse herself because she is beholden to Trump.

    The only justice I know of who was so political as to require recusal was RBG.

    1. Her swearing in was a campaign event and now it’s a campaign ad.

      1. Why shouldn’t Trump tout one of his major accomplishments in a campaign ad?

        Court appointments are a major reason I voted for him, and his success at making good appointments and getting them confirmed is a major reason I am voting for him again.

  22. I think Justice Barrett will decide on the merits of the case, and if Biden wins, he wins. Unlike if it had gone to the House, where even if Trump won by 10 million votes, Biden would be found the winner.
    Obviously she is the better choice for deciding the election. But don’t think that will stop Democratic whining and violence if Biden loses.

    1. I thought state legislatures decided elections for President that failed to get electors seated.

    2. Unlike if it had gone to the House, where even if Trump won by 10 million votes, Biden would be found the winner.

      If a Presidential election “goes to the House”, the House is obliged t vote “immediately” with one vote for each State delegation. We do not know which, if any, party will control the majority of State delegations after 3 January. It’s likely to be fairly close – I think that even after a good shellacking for the GOP in 2018, State delegations were 26 R, 22 D and 2 even.

      Nancy might try to prevent a vote, using her actual majority of members, but I doubt she’d get away with it.

      It’s also unlikely that either side could block a quorum. The quorum for this is set at one member from two thirds of the States, and each party currently has a member in 41 States. So if it goes to the House, the Rs have a bit of an edge now, but as of Jan 3rd that could flip.

      1. All state electoral votes are (by various state laws) to be certified by 12/8 at the latest. If the House is to vote immediately in the lack of an electoral majority they will have to vote with the current delegations, not the ones that will take office on 1/3

        1. No. The Electoral College votes in December, in each State. I believe this year it’s 14 December. The votes are then transmitted to Congress, where they are opened and counted on 6 January. The new Congress with new members starts on 3 January.

          On 6 January, the Joint Session of Congress counts the EVs. If they fail to count up a majority for any candidate, then the House gets to do its thing of voting by State delegations. So it’s definitely the new Congress that chooses the President. In January.

  23. I would have expected some conservatives to be self-aware enough to recognize the situation they are about to confront.

    The reckoning is nigh.

    Racists, religious kooks, gun nuts, anti-abortion absolutists, Blackman, gay-bathers, incels, xenophobes, aspies, misogynists, red-pillars, backwater rubes, and white male clinger blogs hardest hit.

    1. What do you have against gays who bathe?

  24. Professor Adler….Really looking forward to your blog post that will explain just how much Chinese money that Case Western accepted and failed to report for a dozen years. I am sure that blog post will be illuminating.

  25. ” Justice Elena Kagan recused from matters upon which she worked in the Solicitor General’s Office.”

    Didn’t Kagan not recuse on an ACA case that she had worked on as SG?

  26. Except for academic discussion, this topic needs no consideration. The odds against recusal are too great. When you add in her appearance last night at yet another Trump campaign event at the White House, it’s unlikely the thought would ever even cross her mind.

  27. Prof. Adler, you rightly note “President Trump’s own norm-breaking behavior” (obligatory disclosure – I didn’t/won’t vote for Trump), but are silent on the Judiciary Committee Democrats equally norm-breaking behavior. Many of these partisans either begged ACB for her vote on many different cases (mostly the ACA litigation, but also all election-related cases) or begged her to recuse. There should be Senate rules that would disqualify them from voting on a nominee if they engage in such behavior. But, perhaps that’s why none of them voted on the nomination (in Committee). This was shameful lobbying – very inappropriate. The attorneys who engaged in this should be disbarred.

  28. “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

    Reason has long-since left the building. Impartiality, then, won’t ever be *reasonably* questioned.

  29. Not so sure I agree about Justice Ginsburg. True, she need not have recused herself in all cases involving Trump Administration policies. But the immigration ban cases involved a charge that Trump himself was biased and that that bias motivated the bans. It strikes me that one could reasonably question the objectivity of an avowed Trump-hater on that question.

    1. It strikes me that one could reasonably question the objectivity of anyone that hedges on whether Trump is biased.

  30. I would say no, simply because the election cases are too important to risk a series of 4-4 decisions leaving conflicting circuit court decisions intact

    This also conveniently works as a reason that Barrett needed to be confirmed rapidly, before the election.

  31. The problem with Adler’s argument is that deciding a Presidential election is more momentous than the typical SCOTUS case, eve most of the more prominent ones.

    Imagine this. Biden wins the popular vote by a healthy margin, but the EC is close, and the race will be decided by the outcome in PA. It appears Biden has carried PA, but there is, inevitably, litigation that reaches the Supreme Court. The Court, by a 5-4 margin, with Barrett in the majority, gives Trump PA’s votes, and the Presidency.

    Sound attractive?

  32. having a 9th justice is important to avoid ties, not to rule one way or the other. This is critical when time is of the essence, such as in election cases involving the presidency.

    And the standard isn’t whether reasonable people might question the judge’s fairness, but whether the judge’s fairness may be reasonably questioned. None of the arguments presented here to argue for recusal are reasonable precisely because they evidently only would apply to Barrett rather than some or all of the other justices.

    Should Kagan and Sotomayor recuse because they celebrated their confirmations at the Obama-Biden White House? Don’t they feel indebted to Obama/Biden?

    And all presidential candidates stress the importance of the court to their election. Why would such a fact only cause Barrett to recuse rather than all justices?

    there is no standard set out here other than Unique Threat to Democracy (TM).

    1. I don’t recall Kagan or Sotomayer facing any cases that would install Obama as president.

      1. That’s the cool thing about sui generis rules — you don’t have to mess around with pesky principled distinctions and line drawing between the target behavior and other stuff you don’t find problematic.

    2. “having a 9th justice is important to avoid ties, not to rule one way or the other. This is critical when time is of the essence, such as in election cases involving the presidency.”

      Yes, I remember how important it was to solve this problem back in 2016.

  33. If Barrett declines to recuse herself from any cases pertaining to the 2020 election, she will have proven herself to be as dishonest and ethically-bankrupt as she appeared to be while being unprecedentedly evasive during the Senate hearings.

Please to post comments

Supreme Court

Supreme Court Affirms Stay of District Court Injunction Against Wisconsin Election Law

This time, the justices explain themselves.

|

This evening, while the Senate was preparing to vote on the nomination of Amy Coney Barrett to be the 103rd Associate Justice, the Supreme Court affirmed a stay of a district court order enjoining enforcement of Wisconsin election laws. The vote was 5-3 along ideological lines.

Unlike with other recent election-related order, the Justices explained themselves. The Chief Justice, Justice Gorsuch and Justice Kavanaugh each wrote opinions concurring in the denial of the application to vacate the stay. Justice Kagan dissented, joined by Justices Breyer and Sotomayor.

The Chief Justice's opinion is particularly interesting, because it explains why he voted to affirm a stay here, but refused to vote for a stay of an order of the Pennsylvania Supreme Court, leading to a 4-4 split. At the time, I suggested the Chief joined the liberals in that case "because he does not like judicial intervention or the unnecessary granting of stays." His opinion in Democratic National Committee v. Wisconsin State Legislature suggests I was correct:

In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State's laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar and Republican Party of Pennsylvania v. Boockvar. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.

The Chief Justice is not a fan of preliminary injunctions as a general matter, and has sought to curtail their use by federal district courts in a range of contexts. In the case of elections, he has embraced a strong form of the Purcell principle, which counsels that, as elections approach, federal courts should err on the side of non-intervention. As the Supreme Court oversees the lower federal courts, the Chief Justice is ready to enforce this principle against federal district courts. When state courts, state agencies, or state legislatures intervene late in the process, however, the Chief Justice does not think this is his concern. Thus the burden to convince the Chief to overturn a state-level decision is much higher.

There are serious arguments for and against the Chief Justice's approach. Whatever the underlying merits, there is a method to the Chief Justice's madness.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’m surprised Roberts didn’t stab the Constitution in the back since this was a swing state. Like he did in PA.

    1. The Constitution says that state supreme courts can’t make rulings based on state constitutions that don’t present a federal issue?

      1. Federal elections aren’t a federal issue?

        1. There has never been a federal election.

        2. Not when there is no relevant federal legislation or federal right at issue and the question involves a state court interpreting a state statute that empowers a state executive officer to make rules in this area.

          1. “the question involves a state court interpreting a state statute that empowers a state executive officer to make rules in this area.”

            That’s the case for state and local offices. For federal offices, the federal constitution empowers the state legislature to make rules in this area, so the federal judiciary is perfectly entitled to ask if the rest of the state government is actually following those rules.

            1. Pretty sure reading judicial review out of the legislative power is unprecedented.

              1. It’s not reading out judicial review. It’s just that, for federal elections, the state courts aren’t guaranteed the last word, because the state legislature is exercising a federal, not state, power.

                If we were talking state or local offices, the state supreme court could get away with just about any BS ruling they wanted, as long as they didn’t violate some specific federal right.

                But this is about federal offices, and for federal offices, the state courts aren’t immune to federal review. If they order that the legislature’s election laws be violated, (As they did in PA.) the federal courts can over-rule them.

                1. ” If they order that the legislature’s election laws be violated, (As they did in PA.) the federal courts can over-rule them.”

                  Whether the state legislature is suppressing voting rights or not, saith the Republican.

                  1. Yes, you may engage in wild fantasies that not changing election laws whenever Democrats demand it is “suppressing voting rights”. Those fantasies won’t deprive the federal judiciary of jurisidiction.

                2. Exactly.

                  “When state courts, state agencies, or state legislatures intervene late in the process, however, the Chief Justice does not think this is his concern. ”

                  And this is precisely where the Chief Justice goes wrong. If and when state courts or agencies, deploying the state constitution, or any other charm or token to override the State legislature’s prescribed manner for choosing Electors, or for conducting elections to Congress*, it’s the duty of the federal courts to set them right.

                  Because this is a federal question.

                  * in the case of elections to Congress, state and federal courts may also consult Congressional statutes modifying the manner prescribed by the State legislatures.

        3. Excellent question!

          See my thread on Bush v. Palm Beach County, which unanimously turned presidential elections into a federal issue:

          https://twitter.com/dilanesper/status/1320889337739841536

          1. Contrary to you, I was not the least surprised by Bush v. Palm Beach County, and not much surprised at it being unanimous.

            The thing here is that the state court wasn’t just wrong. They were egregiously wrong. They were wrong to the point where even the ‘liberal’ justices found what they’d done offensive.

            If they’d just been a little wrong, they might have gotten away with it.

            The PA case is eerily like Bush v Palm Beach. Another case of a state supreme court relying on a vague provision of a state constitution to over-ride crystal clear statutory language in a federal election.

            1. They had this crazy idea that the election isn’t over until all the votes have been counted, and demanding that a winner be certified prior to that is contrary to public policy. Those crazy motherfuckers.

              1. They had this crazy idea that they were in charge of making the rules for selecting Electors, not the legislature. And that, if they didn’t like the rules the legislature originated, they could change them.

      2. Federal law sets election day for federal officials as the first Tuesday after the first Monday in November. If states are effectively allowing people to vote after the statutory deadline, I would say that very much presents a federal issue.

        1. Because allowing the post office to disenfranchise people by simply forgetting to deliver their ballots to the elections office isn’t any kind of infringement on the right to vote.

          1. No, it isn’t, any more than it’s an infringement of the right to vote if you have a car accident on the way to the polls.

            1. Are you familiar with the meaning of the word “accident?”

            2. Actually, it is.

              It’s a deliberate act, like stealing ballots out of the mailbox.

  2. Just as a correction, Republican appointed justice do not decide cases “along ideological lines.” Ideologies include values, and Republican justices divest themselves of all values when deciding cases. Justices appointed by Democrats make decisions only based on values, thus their rulings fall along ideological lines.

  3. Even if we accept that Roberts has principles, it won’t matter cause ACB will vote with the other 4 to give the Rs whatever election advantage they want. The PA case is coming up again and we will know for sure then.

    1. Doesn’t matter if they piss off enough voters that they can’t suppress them all.

  4. Roberts is the lone justice to apply the principle that the states get to decide for themselves.

    Of course there could be cases where the states disenfranchise in a way that clearly violates federal statute or the Constitution. But, the logic of the liberals goes beyond that possibility to a more nebulous burden on the right to vote.

    On the other hand, the conservative justices other than Roberts require that state legislatures must explicitly approve any changes, rejecting any changes from the state executive or judicial branches, even though its the judicial branch that interprets what the legislature approved.

    If Barrett joins the other conservatives, then all matter of regulations making it easier to vote will be rejected, and I believe in the case where state authority has approved such changes, naked partisanship will have prevailed.

    1. Don’t be silly. I’m sure that when the Democrats sue to stop the GOP from ballot harvesting by using boxes, the liberal justices will jump to support the Democrats.

      1. They might and the conservative justices might flip-flop as well. Perhaps we would be better served if all followed Roberts.

    2. Josh R : On the other hand, the conservative justices other than Roberts require that state legislatures must explicitly approve any changes, rejecting any changes from the state executive or judicial branches, even though its the judicial branch that interprets what the legislature approved.

      As you imply, the Roberts position of leaving it to the States is, in the view of “conservative justices” (and indeed all competent readers) simply and obviously wrong as a matter of the constitutional text. Which Roberts himself well understood in his ringing dissent in the Arizona redistricting case. The “manner” of conducting elections to Congress is not reserved to the States, it is assigned to the State legislatures, explicitly in the text of the Constitution.

      There is nothing at all to prevent State legislatures, in exercising this federal grant of power, providing, within that manner, that the State executive may make various adjustments within constrained limits . Because such adjustments are, by virtue of being authorised by the prescribed manner, themselves within the manner prescribed. Nor is there anything preventing the State legislature from granting the State judiciary a role in adjudicating disputes, within such limits as the State legislature specifies in its manner.

      But in the Pennsylvania case, the Pennsylvania Supreme Court acknowledged that its remedies were nowhere to be found in the State legislature’s prescribed manner. They had plucked them from the state constitution (or so they said.) But the State constitution is granted no deference at all in Articles 1 and 2, where the federal power is granted to the State legislature.

      And since the question of whether the election is, or is not, being conducted in the manner prescribed by the State legislature is ineluctably a federal question, for it hangs on the text of the federal Constitution, the federal courts are entitled to, indeed have a duty to, correct the state court’s error.

      Of course there could be cases where the states disenfranchise in a way that clearly violates federal statute or the Constitution.

      And so, you understand the principle. The federal Constitution wins. So where’s the difficulty in acknowledging that the federal Constitution still wins whether it has to do with unconstitutional disenfranchisement of voters, or unconstitutional usurpation of the State legislature’s power ?

      1. When a statute is vague or ambiguous, and authorizes an executive branch member to enforce the statute, it makes no sense that the executive and judicial branches of a state should have no power to weigh in. For example the decision being appealed from Pennsylvania that Barrett may hear was whether statute required or authorized signature matching verification. The PA courts held it does not based on a reading of the statute, not the PA constitution.

        1. I am unfamiliar with the “makes no sense” theory of statutory interpretation. It looks very like the “I prefer this, thanks” theory of statutory interpretation, of which I am not a fan.

          At least one of the items being appealed to SCOTUS is on a matter that the Pennsylvania Supreme Court acknowledged was unambiguous in the statute, and where they deployed (a particularly airy phrase from) the State constitution to trump the statute.

          And in any case, even if the state court reaches an opinion based on statutory interpretation, the federal courts still have every right to disagree, because the state court’s opinion may be (a) incorrect and (b) usurping of the State legislature’s power under the federal Constitution.

          If a state court ruled that a provision of the state’s election law was perfectly OK under the 14th Amendment, disappointing plaintiffs who had argued otherwise, is it your view that the state court’s opinion must be decisive and that no claim could be advanced in federal court ?

          1. Of course the 14th Amendment takes precedence. But you are begging the question of what “shall be prescribed in each State by the Legislature” means in Article One. It seems to me the correct reading is at least statutes as interpreted by the state judiciary. Otherwise, there is no way to resolve ambiguous statutes and (sorry) that doesn’t make sense.

            You hypothesize that SCOTUS has jurisdiction to interpret state statutes. But, I don’t see how “shall be prescribed in each State by the legislature” grants such a power.

            As far as the judiciary ruling based on the state constitution, perhaps you have a better argument. However, what if the constitution clearly says ballots will be accepted up to three days after the election but the state legislature never approved? I believe your position requires the federal courts to step in and forbid such ballots from being counted. That sounds wrong to me.

            1. It seems to me the correct reading is at least statutes as interpreted by the state judiciary. Otherwise, there is no way to resolve ambiguous statutes and (sorry) that doesn’t make sense.

              I agree that passing a state statute would be the usual way of establishing the manner of elections. But I don’t think it would be the only way. So, a State constitution might, like the federal Constitution, require a Bill passed by the Legislature to be presented to and approved by the Governor before it took effect. That would mean that the Governor’s approval would be a necessary condition of passing state legislation. Fine, and so it would be.

              But what if the State legislature passed a Bill prescribing the manner of Congressional elections under the Article 1 power granted to the State legislature, but the Governor refused to sign it ? What would be its status ? Well it certainly wouldn’t be a state law. But I see no diificulty in accepting that it has binding force by virtue of the federal Constitution, which makes no mention of any role for the State Governor. So a Bill of this nature would not be state law but it would be still be legally binding.

              As for resolving ambiguous statutes, there would be no bar on the State legislature offering a role for the State judiciary in its prescribed manner. But even if it didn’t, such matters would be resolvable through the federal courts because an aggrieved voter or candidate would have a federal cause of action – whether the treatment meted out to the litigant was within or without the prescribed manner.

              Which is the answer to :

              “You hypothesize that SCOTUS has jurisdiction to interpret state statutes. But, I don’t see how “shall be prescribed in each State by the legislature” grants such a power.”

              It’s not just a state statute. It’s a state statute that exercises a federal power granted to a particular State actor. If some other State actor usurps that federal power, under color of state law, that is a breach of the federal Constitution.

              what if the constitution clearly says ballots will be accepted up to three days after the election but the state legislature never approved? I believe your position requires the federal courts to step in and forbid such ballots from being counted. That sounds wrong to me.

              What if the state constitution said that the votes of women were to count half, even though the State legislature had provided that they were to count whole ? Yup, my position is that the federal courts could happily step in and insist that the votes of women must count whole, and nuts to the state constitution.

              Because, as mentioned previously, the federal Constitution wins.

              1. I would think prescribing the manner of elections requires a legally binding instrument such as a statute that must be signed by the governor. Is there precedent to the contrary?

                I agree that if another state actor usurps the legislative power to prescribe the manner of elections, SCOTUS can step in. But, that power doesn’t include the ability to second guess the state judiciary’s interpretation of an ambiguous statute.

                Of course the federal constitution is superior and counting women’s vote as half would violate the federal constitution. But, the only clause that might be violated in the federal constitution for ignoring a state constitution’s mandate that ballots be counted if they arrive up to three days after election day, is Article I, Section 4. And it is downright silly in my view to argue “prescribed by the Legislature” permits ignoring the state constitution.

  5. So there is a secret switch? Federalism on/federalism off. We just dont know when equal protection kicks in?

    1. It is all partisan now, that tells you who likes federalism and when.

    2. Not secret.

      Federalism has always been mostly an argument of convenience.

  6. Kavanaugh says that “[s]tates want to avoid the
    chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” Kagan correctly notes that, “there are no results to “flip” until all valid votes are counted. And nothing could be more “suspicio[us]” or “improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

    So much of the conservative approach to voting flies in the face of basic logistics. There are going to be closer to 150 million people voting in this election. They obviously can’t all go and vote in a 12 hour window on a Tuesday. And they obviously can’t all be counted within an 8 hour window after that. But the recent Trumpian framing of elections, like the one Kavanaugh for some reason has adopted, expects exactly that! And since it makes no logistical sense whatsoever, the only reason they would want it to be like this is so that less votes are counted overall. The possibility that a voters vote goes uncounted does not seem to phase them in any way shape or form. But a lot of people in this country and around the world have sacrificed immensely, been subject to violence, and even died for the right for their vote to be counted. Yet they don’t care. It’s pretty gross.

    1. Yes, I agree, but it was a bad move of the legislators to say it is OK to mail ballots on election day, but not say it is OK to count them if they arrive after.

      1. As a policy matter, you can argue with it, but they were acting within their reasonable discretion: The election ends at the end of election day.

        They didn’t have to allow mail in ballots AT ALL. They didn’t have to allow absentee ballots, early voting, or any of that. They would be entirely within their rights to say, “You want to vote? Show up in person on election day, and that’s it.”

        1. The election ends at the end of election day.

          Lots of states count ballots received after election day.

          1. On the theory that they originated before election day. But that’s nothing they’re obligated to suppose.

            1. Unless, I suspect, Brett thought there was a partisan advantage for his preferred brand of politician from counting them (say, ballots returned by servicepeople serving overseas, who tend to pick “correctly”, ie, the same as Brett does.)

            2. But that’s nothing they’re obligated to suppose.

              Unless their state Constitution says otherwise, as interpreted by their Supreme Court.

              1. Nope. The power to prescribe the manner of Congressional elections in the State is granted to the State legislature (not any other organs of the State) by the federal Constitution, not by the State constititution.

                It is a federal question.

            3. You don’t have to suppose it. First, you can accept postmarked ballots. Second you can logically assume, despite your objection, that a ballot that arrives in the mail on Wednesday was mailed no later than Tuesday.

              The thing you overlook, Brett, is that there is a Constitutional right not to have a substantial burden placed on your right to vote. What is not a burden normally is one under present circumstances.

              I suggest you read Kagan’s dissent. It thoroughly eviscerates Kavanaugh’s concurrence.

              But what is “reasonable” in one set of circumstances may become unreasonable in another. And when that switch occurs, a constitutional problem arises. So it matters not that Wisconsin could apply its ballot-receipt deadline when ballots moved rapidly through the mails and people could safely vote in person. At this time, neither con-dition holds—again, according to the district court’s emi-nently believable findings. Today, mail ballots often travel at a snail’s pace, and the elderly and ill put themselves in peril if they go to the polls. So citizens—thousands and thousands of them—who have followed all the State’s rules. still cannot cast a successful vote. And because that is true, the ballot-receipt deadline that once survived constitutional review no longer does.

              That deadline, contrary to JUSTICE KAVANAUGH’s view, now disenfranchises Wisconsin citizens—however much he objects to applying that term here.

              There’s more. Read it. It’s only ten pages, and I read Kavanaugh’s concurrence.

        2. “As a policy matter, you can argue with it, but they were acting within their reasonable discretion: The election ends at the end of election day.”

          Nonsense. The election ends when the last vote is counted.

          1. So all you have to do is hide a ballot, and the election never ends? Cool!

    2. Would you accept a decision by any district court judge in any state who rules that to avoid disenfranchisement, voting must be allowed for “x days after the state deadline” or counting permitted for “y days after the state deadline” AND the ruling applies to every state i. e. national injunction? If not, let us know who gets to review such decision, what standards are used, whether states have any say over their voting rules or one federal judge decides voting rights for the country.

      1. Ruqt, you misunderstand, even if it is misunderstanding bolstered by overwhelming majority agreement. You are all wrong together.

        We are not talking about voting rights, which, if they existed, judges would be empowered to adjudicate this way or that. We are talking instead about the exercise by voting of the sovereign constitutive power. That, judges are not properly empowered to adjudicate, but only to one-sidedly defend. Judges are obliged to support the nation’s sovereign People, in the jealous preservation of their power, and tailor decisions to chastise governments which presume to interfere. When it comes to voting, the only question properly before any court is whether a particular government action or policy furthers sovereign power, or threatens to impede it.

  7. It’s reasoning like this that makes me hate lawyers and the law schools that produce them.

    There is nothing objectionable, in itself, in saying that state legislatures ought to be the ones deciding how their elections are to be run. Having federal district courts jumping in, citing poorly-defined constitutional principles, and making precise judgments about how those elections are to be run, is obviously a recipe for chaos and inconsistencies from state to state, circuit to circuit.

    But it is also true that Republican legislatures are very intentionally sabotaging the process, in order to serve their own electoral purposes. You have legislatures on one side, refusing to make even moderately reasonable accommodations for voters who fear showing up in person during a pandemic, and then political appointees gumming up the works at the USPS, sowing their own confusion and logistical headaches. The purpose of all of this is to disqualify tens of thousands, maybe hundreds of thousands, of ballots – by fully legal, registered voters. That’s the reality. And every judge and justice knows this.

    But all of our stolid legal training teaches us to ignore – well, all of that. That the calm application of a rule of law plays to the advantage of a party that seeks to abuse it to usurp the will of the governed is just – y’know, too bad. Better luck next time. Vote for better people, if they let you?

    This is just an extension of the disastrous abdication of any judicial role in constraining partisan gerrymandering. The conservative Court will continue to place its thumb on the scales against the will of the people, ensuring that an even smaller minority can set the agenda of the country. They thereby undermine their own legitimacy and threaten the stability of our country.

    And for the “own the libz” crowd – don’t forget that this is going to cut against you, as well. A government that is not responsive to the opposition is going to be no less responsive to your own interests, when they cut against the political establishment’s. You think Trump or McConnell isn’t willing to throw your job, your family, your safety, into the mulch bin, if it gets in the way of their own agenda? A system that insulates them from Democrats also insulates them from insurgent Republicans. No one wins in this future.

    1. That the calm application of a rule of law plays to the advantage of a party that seeks to abuse it to usurp the will of the governed is just – y’know, too bad.

      It’s more striking than that, and worse. When we are talking about citizens in the act of voting, they are not in their role as subjects of government, or, “the governed.” They are in their role as the joint sovereign of this nation. The sovereign People constrain government, not vice versa.

      SimonP, I suggest that you actually do understand the distinction, which is why you speak, justifiably, of threats to the stability of the country. If the government, which owes allegiance and obedience to the sovereign, instead attempts to hamper the sovereign in its exercise of its most important power, that is indeed destabilizing, and dangerous to the nation.

      In cases such as these, a wise court would tailor decisions to chastise governments which practice attempted constraints on sovereign power—and make delivering that chastisement the ordering principle guiding its decisions.

      1. The question, for me, is not even one of political philosophy. The destabilization of democracies has happened often enough in recent memory that we essentially have empirical evidence of how it happens. Warping the judiciary to favor one party in virtually any dispute leads, inexorably, to further corruption, autocracy, oppression, and ultimately violent revolt.

        1. I tend to agree that a practical analysis can be more persuasive than a philosophical one. But when speaking to so many would-be originalists, it is worth noting that among the founders analysis based on prerogatives of sovereignty WAS regarded as practical analysis. Madison, James Wilson, and probably others among the founders, thought history showed that a national government without a separate sovereign above it was an impossibility.

        2. SimonP, by the way, your comments have been excellent.

      2. Is it really necessary to reply to dozens of comments with this same strange point of yours?

    2. Excellent comment.

      I guess if DeJoy simply closed all post offices between now and election day it wouldn’t trouble Roberts at all.

    3. The will of the governed is expressed through the votes of their duly elected representatives, who will always have a stronger claim on expressing the will of the governed than the unelected judiciary.

      People can always say, “But the legislature isn’t really effectuating the will of the people who elected them!”, and often they’ll be right. But nobody else in the government has a better claim to be doing so than the elected representatives, and certainly not a superior enough claim to just rule by fiat in the name of the people.

      1. The will of the governed is expressed through the votes of their duly elected representatives, who will always have a stronger claim on expressing the will of the governed than the unelected judiciary.

        But these cases are not about “the will of the people.” They are about the rights of the people, specifically, voting rights, and there legislatures are more often mischief-makers than defenders of those rights.

        Again, Kagan,

        And if there is one area where deference to legislators should not shade into acquiescence, it is election law. For in that field politi-cians’ incentives often conflict with voters’ interests—that is, whenever suppressing votes benefits the lawmakers who make the rules.

    4. “But it is also true that Democrats are very intentionally sabotaging the process, in order to serve their own electoral purposes.”

      FTFY

    5. “There is nothing objectionable, in itself, in saying that state legislatures ought to be the ones deciding how their elections are to be run.”

      Depends entirely on who sees partisan advantage in making changes.

      Since 1868, the federal government has acted as the guarantor of voting rights. Republicans would now like to dismantle this, as they control many state houses.

  8. In the case of elections, he has embraced a strong form of the Purcell principle, which counsels that, as elections approach, federal courts should err on the side of non-intervention.

    Which raises a question. Should federal courts err also on the side of reversing state interventions which occur too close to an election. I don’t understand why the Purcell principle, in this case, precludes federal action, but not the state action. Anyone inclined to come back to tell me, “But that’s a state court, and Roberts thinks the Purcell principle should not apply to it,” is now asked to explain on what basis that kind of thinking is justified, and how they know Roberts relied on any such basis.

    It’s a little easier for me to imagine Roberts is just trying to divvy up the results evenly until the storm blows over.

    1. One of those rare shafts of Lathropian sunlight.

    2. But the Purcell principle was based on the fear that changes could confuse voters. Simply extending the deadline for receipt of ballots doesn’t carry that risk.

      By the way, in 2000, weren’t the Republicans, Roberts, Kavanaugh, and Barrett among them, arguing vigorously for counting absentee ballots received after election day?

  9. If one wanted to make voting a fundamental right; could that be done via Congress (ie, as a “regular” law)? Or would it take a Const. amendment?

    1. Voting is not a fundamental right. It is better than that. It is a sovereign power. As such, it ought not be subject to any constraint by government at all.

      1. Voting is NOT a fundamental right. Fundamental rights are rights you can exercise in a state of nature, when and where and how you want. Freedom of speech, freedom of religion, things like that.

        Not fundamental: Right to trial by jury, voting, and so forth. Rights that only exist because there’s government, and in the context of government.

        If you had a fundamental right to vote, you could vote on Supreme court justices. You could vote next year. You could vote in the next county over, without moving first.

        But, no, it’s not fundamental. It’s very, very limited: One place, one time, only for offices that are voted on, with identifying yourself being a natural consequence of these limits.

        Ironically, the right to vote, though not fundamental, IS routinely violated. But it’s not violated by voter ID, or requiring that you properly fill out the ballot and get it to your polling place before the election is over.

        It’s violated by ballot access laws. Jungle primaries. Prohibitions on write in votes. Because, while it’s very limited in context, it IS a right to vote for whoever you damned well please.

      2. So then everybody living in an area should be able to vote. Also, if I own two homes, I should be able to vote in both locations. Also, children should be able to vote. Why not if you own a business in a location, you get to vote there too?

    2. It took a Constitutional amendment.

  10. It’s interesting that Roberts and Kavanaugh took the opposite position in Bush v. Gore.

    And no crap about how they didn’t really believe it and were just representing…

    1. Assuming they have a consistent judicial philosophy is probably at least partly a mistake.

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Digital Dunkirk

Episode 335 of the Cyberlaw Podcast

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In this episode, I interview Rob Knake, Senior Fellow at the Council on Foreign Relations, about his recent report, "Weaponizing Digital Trade—Creating a Digital Trade Zone to Promote Online Freedom and Cybersecurity." The theme of the report is what the US can salvage from the wreckage of the 1990s Magaziner Consensus about the democratizing and beneficent influence of an unregulated Silicon Valley. I suggest that, when you're retreating from global ambition to a battered band of democratic nations, talking about "weaponization"  is delusional; what the paper really proposes is a kind of "Digital Dunkirk." Rob and I proceed to disagree about the details but not the broad outlines of his proposal.

In the news roundup, we finally have a Google antitrust complaint to pore over, and I bring Steptoe's Michael Weiner on to explain what the complaint means. Bottom line: it's a minimalist stub of a case, unlikely to frighten Google or produce structural changes in the market—unless a new administration (or a newly incentivized Trump Justice Department) keeps adding to the charges as the investigation wears on.

Speaking of Justice Department filings that serve up less than meets the eye, DOJ has indicted GRU hackers for practically every bad thing that has happened on the internet in the last five years, other than the DNC hack. (In fact, I lost an unsaved Word document in 2017 that I'm hoping will be added to the charges soon.) The problem, of course, is that filing the charges is the easy part; bringing these state hackers to justice is so hard as to be more or less inconceivable.  So one wonders (along with Jack Goldsmith) whether a policy that requires a stream of indictments for all the cyberattacks on the US and its allies is a wise use of resources. Maury Shenk thinks it might be, at least as a way of demonstrating US attribution capabilities, which are indeed impressively showcased in the indictment.

While we're on the subject of questionably effective US retaliation for cyberattacks, Maury notes that the Treasury Department has imposed sanctions on the unpronounceable Russian institute, TsNIIKhM, that seems to have developed the industrial control malware that caused massive outages in Saudi Arabia and that may still be planted in US energy systems as well. Again, no one doubts that heavy penalties should be imposed; the question is whether these penalties will actually ever reach TsNIIKhM.

In another law enforcement action against cyberattacks, Nick Weaver celebrates the German government's dawn raid on spyware exporter, FinFisher. And Maury expresses modest hope for Facebook's Oversight Board now that it has started reviewing content moderation cases. Color me skeptical.

Now that we've seen the actual complaint, Nick has his doubts about Microsoft's legal attack on Trickbot. It may be working, he says, but why is Microsoft doing something that the FBI could have done? I pile on, raising questions about the most recent legal theory Microsoft has rolled out in support of its proposed remedies.

Finally, in quick hits:  I hum a few bars from "John Henry" in response to a Bloomberg story suggesting that CEOs are successfully beating the AI engines parsing their analyst calls and trading on the results. Maury then debunks the parts of the story that made it fun, but not before I've asked whether Spinal Tap was decades ahead of its time in repackaging failure for AI consumption. Maury notes what I predict will be ho-hum Judiciary Committee testimony of Twitter and Facebook CEOs about their suppression of the New York Post "laptop from hell" Hunter Biden story.  I'm much more interested in the Commerce Committee's subpoenaing of contacts between the campaigns and those companies.  Because you just know the campaigns have a whole strategy for working the speech referees of Silicon Valley, and it would be an education to see how they do it.  Nick and I congratulate Edward Snowden on the confirmation that he'll be in Russia forever. And I mock the Portland City Council as well as all the journalists who tried to make face recognition toxic – until it turned out that face recognition might help antifa dox the police.  Suddenly we can't expect to stop the march of technology.

Download the 335th Episode (mp3)

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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  1. The assets of these tech billionaires should be seized in civil forfeiture for the billions of internet crimes committed on their platforms. Then auction them off like the Ferrari of a drug dealer. Many millions of those crimes were committed by the platform itself, such as inflated viewerships to defraud advertisers. When you advertise, you do not even know if anyone saw your ad. You can fail to ever see it yourself. Great business model.

    Anti-trust actions are a great lawyer rent seeking scam, taking decades, and costing $millions in fees on both sides. It is unclear if anti-trust law is even constitutional, being totally vague, subjective, and economically destructive. If a monopolist is ripping people off, start your own competitive service and get all his business at less cost. That is the proper remedy to monopoly power.

    1. “The assets of these tech billionaires should be seized in civil forfeiture for the billions of internet crimes committed on their platforms.”

      Start with Larry Ellison.

  2. “DOJ has indicted GRU hackers for practically every bad thing that has happened on the internet in the last five years, other than the DNC hack. (In fact, I lost an unsaved Word document in 2017 that I’m hoping will be added to the charges soon.) The problem, of course, is that filing the charges is the easy part; bringing these state hackers to justice is so hard as to be more or less inconceivable. So one wonders (along with Jack Goldsmith) whether a policy that requires a stream of indictments for all the cyberattacks on the US and its allies is a wise use of resources. ”

    It took a while to get bin Laden, too.

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Supreme Court

Associate Justice Amy Coney Barrett

The 103rd Associate Justice has been confirmed.

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This evening, by a vote of 52-48, the U.S. Senate approved the nomination of Judge Amy Coney Barrett to be the 103rd Associate Justice of the Supreme Court of the United States. He confirmation comes only thirty days after her nomination by President Trump, and only eight days before the election.

Justice Barrett's confirmation is the closest before a Presidential election in our nation's history.  It is not, however, the quickest confirmation. Not close. Multiple justices within our nation's history have been confirmed within a day of being nominated, though no justice has been confirmed that quickly in nearly 80 years; James Byrne was confirmed the day he was nominated in 1941. (There's a handy list on pp. 9-11 of the Appendix to Ilya Shapiro's Supreme Disorder.)

As Adam Feldman notes, the confirmation of Justice Barrett is the quickest confirmation since that of Associate Justice John Paul Stevens in 1975, who was confirmed in only 19 days. Justice Blackmun was confirmed within 27 days in 1970, and Sandra Day O'Connor was confirmed in 33 days in 1981. Jsutice Ruth Bader Ginsburg, who Justice Barrett replaces, was confirmed 42 days after her nomination in 1993.

Since the mid-1970s, it's typical for nominations to take 70 days or so. Of sitting justices, Clarence Thomas took the longest to confirm. He was confirmed 99 days after his nomination in 1991. Justice Brett Kavanaugh was confirmed in 88 days.

Setting aside justices who were never confirmed because the Senate failed to act on their nomination, as happened with Merrick Garland, the longest confirmation was for Associate Justice Louis Brandeis. The Senate took 125 days to confirm Brandeis in 1916. Justice Potter Stewart comes in second, as it took the Senate 108 days to confirm him in 1958.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

    1. ACB

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  1. Wonder if the Twits on Twatter are still so gung-ho about starting a civil war now?

  2. Whew! now there’s no chance that the outcome of an election might accidentally affect the makeup of the Court. That should improve public perception of the Court!

  3. Now we just need the Court to mandate gay divorces and reverse abortions. Then American will be Great Again!

    1. If you can tell us how to do a reverse abortion, I’ll bet a lot of people would like their feti resurrected.

      1. You mandate it and arrest the people who don’t do what they’re mandated to do.

      2. “If you can tell us how to do a reverse abortion”

        Easy. You just replace the surgical vacuum with a leaf blower.

  4. I’ll bite: which would-be justice waited the longest before getting a vote and being rejected? I’ll go out on a limb and guess Bork.

    1. No, it was Garland. No wait is longer than eternity.

      1. Yep both Bork and Garland were unacceptable to the Senate at the time they were nominated.

        Sometimes, the answer is no.

        1. How do we know whether Garland was or was not acceptable to the Senate? He never received a hearing or a vote.

          1. He was specifically picked because Republican Senators would have preferred him to Sotomayor or Kagan.

          2. Well, the Senate gets to make its rules, and Garland was not deemed acceptable under the rules. So he was unacceptable.

            1. He would have been confirmed. That’s why McConnell did not allow a vote or even a hearing.

            2. “Well, the Senate gets to make its rules, and Garland was not deemed acceptable under the rules.”

              That’s an interesting interpretation of “Mitch wasn’t feeling it.”

      2. Or it was one of the 26 nominees before him that never received a vote – you know, since that is the most common way for a Supreme Court nomination to fail?

    2. For Bork, a period of 108 days passed between when his nomination was received in the Senate and final action on the nomination by the Senate. The time period was 100 days for Homer Thornberry, and 92 days for Clement Haynsworth.

  5. Speaking of unexpected court openings, RIP to Judge Torruella on CA1.

    I hadn’t realized (although others might have been paying more attention), but Judge T. never bothered to go senior, so that finally opens up a spot on CA1 that Trump could potentially fill.

    Assuming the Rs move ahead on an appointment, any thought as to the leading candidates? I wonder if they might go for DMass USA Lelling given that his tenure could potentially be up soon anyway.

    Of note, Judge T. was on the panel that heard argument in SFFA v. Harvard.

    If CA1 in fact receives an appointee, does that leave CAFC as the only circuit court not affected by Trump so far? We may never get to see his take on patent cases (putting aside Judge Albright in WDTX).

  6. Where’s the Reverend?

    I need some salt for my dinner.

    1. I applaud this development. It will make 2021 all the sweeter. What’s one handmaid against elimination of the filibuster, a new voting rights act, universal health care, and some new Supreme Court justices? Add admission of two or three states, enlargement of the Electoral College, and a few purely gratuitous zingers for clingers, and 2021 could be a momentous year for modern, educated, reasoning, accomplished, decent America.

      See you a in a week, clingers. Then again in three months. After that, I doubt better Americans will be much interested in seeing or hearing conservatives.

      Unless Trump is right, of course, and the Republicans take the House . . . .and the White House. Good luck with that, clingers.

      1. Open wider, Rev.

        1. Why?

          Are conservative no longer the losers of our culture war?

          Are the red-state backwaters suddenly going to prosper at the expense of our modern, educated, skilled blue-state communities?

          Are the Volokh Conspirators now respected and mainstream members of legal academia, no longer misfits at the fringe?

          Is a comeback for racism, gay-bashing, misogyny, and other forms of right-wing bigotry underway in America? Has organized, old-timely superstition miraculously ended its decline in America, because one tongues-speaking handmaid got 52 Senate votes? Has the tide of the culture war been reversed . . . Another miracle, evoking the parting of the Red Sea?

          Keep counting on miracles . . . It suits you.

          1. Roughly translated: “I’m MEEEELTING! Melting away….”

            1. I’m sure SOMEBODY, SOMEWHERE will miss you…

      2. RALK @ 9:33 pm

        “What’s one handmaid against elimination of the filibuster, a new voting rights act, universal health care, and some new Supreme Court justices?”

        Says the foamer who can’t get past his bigotry of women.

        I’m trying to consider why you are like this – did a girl in 4th grade get more votes for hall monitor and you never quite got over it?

        “Then again in three months.”

        I am counting on there being court enlargement, more Senators, more Representatives, more states. Go big or go broke RALK! Drive it all home.

        Until then, close your eyes, tilt your head back and accept the sweet liquid of liberty. Swallow the goodness and wash away your bigotry.

  7. Like Gorsuch, with whom she will always be paired, the whiff of illegitimacy will always cling to her.

    1. Do you think that whiff will change the outcomes of any rulings?

      Because if not…

      1. That depends, among other things, on whether Justice Barrett does the honorable thing and recuses from any presidential election dispute that may reach SCOTUS.

        1. Why should she do that? Generally a judge has an ethical obligation to participate in a case, unless there is a conflict or some other ethical issue. Why should Barrett in particular recuse?

          1. Because one of the parties in interest appointed her while the litigation was imminent.

            1. Imminent? The basis for the litigation has not even happened. There is no “controversy” in the Article III sense, and federal courts lack jurisdiction to decide any such question, which currently is hypothetical and speculative.

              Indeed even more so than the usual run-of-the-mill advisory opinion. What issues of law will the Supreme Court be called upon to decide in connection with any “presidential election dispute?” No one knows as of now.

              1. There are plenty of ongoing conflicts regarding whether or not ballots count involving people who have already cast theirs. The party of “we don’t want to count all the ballots, because our candidats aren’t chosen on most of them” is still trying to disenfranchise non-Republican voters.

        2. Sorta like how Ginsberg and Breyer “did the honorable thing” and recused from Clinton v. Jones?

          Or were you shooting for more of a sui generis standard?

          1. Paula Hound Dog filed her lawsuit long after Ginsburg and Breyer were appointed. Here post-election litigation is threatened and imminent. That is the difference between Barrett and Gorsuch and Kavanaugh.

            1. Ooooh… “litigation is threatened and imminent.” That knocks out your Caperton gambit — see my comment below.

              Face it, my friend — it’s just not possible to slice baloney that thinly.

              1. Election litigation is presently ongoing regarding whether and when votes will be counted, and lawsuits regarding stays of lower court decisions are presently before SCOTUS.

                Pay attention.

                1. Oh, I’m paying quite exquisite attention to your original demand for recusal from “any presidential election dispute that may reach SCOTUS.”

                  You’re out of lilypads.

    2. You liberals think anyone who doesn’t kowtow to the homosexual agenda has a whiff of illegitimacy.

      1. It wouldn’t be the Volokh Conspiracy — a white, male, right-wing blog — without the bigots.

        1. And thus you showed up to fulfill the prophecy.

      2. I missed the meeting and never got my copy of the agenda. What’s on it?

    3. Is a “whiff” anything like a penumbra? An emanation?

      1. In this case, it’s more of an overpowering stench.

    4. Mmmm, delicious.

  8. Man, did Mitch get cut off from his adrenachrome supply? Dude looks like absolute shit.

    1. Karma’s a bitch, and then you die.

  9. I have seen little discussion of Judge Luttig´s proposition that due process requires Justice Barrett´s recusal from any post-election challenge to the result of the presidential election. The Supreme Court in Caperton v. Massey (2009) opined that ¨Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.¨

    1. Catchy quote, yo, but Caperton involved influence of an appellate judgeship in the court that would ultimately hear the appeal of a jury verdict that had already been issued at the time of the influence.

      If that’s all you have, I think we can sleep soundly tonight.

      1. The conflict is even greater here. Don Blankenship (of Massey Coal Company) spent money to influence the election, but he was not the appointing authority.

        No reasonable person can have confidence in any pro-Trump ruling by Justice Barrett.

        1. Do you want Kavanaugh and Gorsuch to also recuse themselves?

          Let’s get the anti-Trump liberals to also recuse themselves. Their bias is palpable. That leaves it, what, 2-0 Trump?

          Get real.

          1. Justice Ginsberg was very pointed in her pre-election criticism of Mr. Trump. Her vote will not be counted in any election dispute involving the Trump candidacy.

      2. “If that’s all you have, I think we can sleep soundly tonight.”

        You sound like the coach who complained that the referees were calling the game fairly. “All I want is my fair advantage”.

  10. Justice Barrett will serve this country with honor, and distinction.
    Glad that this part of the on-going judiciary battle is over. I hope Justice Barrett does indeed do everything in her power to preserve our Republic, as she said in her remarks.

    Next, her 7th Circuit replacement (already named) needs a hearing. There are another dozen and a half nominations to district courts on the executive calendar that need votes on the Senate floor.

    1. ” I hope Justice Barrett does indeed do everything in her power to preserve our Republic, as she said in her remarks.”

      So she’s an anti-Trumper, now, too?

  11. Schumer said the confirmation “will go down as one of the darkest days in the 231-year history of the United States Senate.”

    If you want to understand what’s wrong with American government, look at that quote versus the reality of ACB. She is well qualified and obviously capable — to say the least.

    If ACB is darkness to you, that reflects extremely badly on you. You might want to fundamentally re-examine your life.

    1. ACB isn’t dark necessarily, although her character leaves something to be desired by accepting this nomination. The process is exceptionally dark though. Extremely morally transgressive. If you don’t see that, it reflects badly on you too.

      Ted Cruz said we could have eight justices in a contentious election year and possibly longer. Then four years later he said we must have a nine member court because of an election year. The hypocrisy is astounding.

      Lindsey Graham gave his word that there would not be another confirmation in similar circumstances. He was on tape. Then he went back on it and lied about the reason (he made that statement after Kavanaugh was already confirmed).

      Finally, Mitch McConnell and everyone who said the American people deserving a voice in 2016 lied. They were lying. We know they were lying because they put out statements within one hour of Ginsburg’s death, and six weeks before an election, that they would fill the seat. If they weren’t lying in 2016 and truly believed that Americans should have a voice, there at least would have been a pause, or a debate, or some recalcitrant Republicans. There were none. Because they were lying.

      Lying to the American people about their worth to the system is incredibly dark, offensive, and degrading. Remember: he lied to you too. You probably defended blocking Garland by saying Americans should vote on it. He degraded you, he degraded, the Senate, he degraded all Americans with this lie. Like Immanuel Kant believed: lying is the worst moral transgression because it deprives people of rational choice. In this case, they literally lied about choice itself!

      This is dark stuff from incredibly dark and nihilistic people. You should fundamentally re-examine your life if you think this process was remotely okay.

      1. Who would have thought politicians might not live up to (a possibly misleading recounting of) what they said? Have politicians ever acted that way before?

        1. 1. It’s not misleading, that’s what he and others said. If historical precedent and party control dynamics were the only reasons they did what they did, they wouldn’t have needed to say anything about the role of the American people in the process in 2016. But they did and it was a lie. They actually didn’t believe Americans deserved a voice. Again, if they believed what they said in 2016, we wouldn’t be having this conversation. They don’t think you deserve one either. You’re a victim of the lie too.

          2. The rest of your statement is the tired justifications of a cynic and nihilist. Just because politicians may often behave dishonestly doesn’t mean they don’t deserve to be called out and held accountable for it. Lying is bad. Lying about our worth as participants in the political system is particularly egregious.

          I decline to just accept unfairness on the grounds that life is unfair. It would be less unfair if people stopped using that as an excuse.

          1. All you people out there who don’t take every passing utterance of politicians as the equivalent of a blood oath: you are all proclaimed cynics and nihilists and bringers of darkness.

            1. “A passing utterance?” Really? The Senate Majority Leader on the Senate Floor explaining his reasons for blocking a Supreme Court confirmation for over 200 days, that everyone in his caucus parroted is just a “passing utterance?”

              At least try to justify hypocrisy and lying on utilitarian grounds, don’t give me
              some bad faith bullshit.

              1. Justification: they changed their minds.

                1. They didn’t. They never believed it in the first place. They lied in 2016. Stop defending them, it makes you look like you endorse lying as a matter of course. I’m sure you try to avoid lying in your personal life, no?

                  1. I’ve been wrong before. Changed my mind. Decided something I thought was one way and was important actually wasn’t that way. Or that it was, but something else was more important.

                    You can call it lying if you want. Or learning from mistakes. Or being wrong about a thing I told someone. Or whatever. It doesn’t matter what some random internet dude names it.

                    Unlike politicians, I don’t make speeches all day and have guys like you pretending that you’re owed some very specific future performance years later based on a half sentence out of a million sentences.

                    And that’s owed to you for … what? For the thing you did? For the help you gave? For all the kindnesses and generosity you and guys like you showed? When did you earn this future return on these carefully picked phrases from years ago?

                    You didn’t earn it and you weren’t entitled to it. You can complain about not getting what you never tried to earn. Not sure why anyone should take those sorts of complaints seriously. Or even pretend to.

                    1. “I’ve been wrong before. Changed my mind. Decided something I thought was one way and was important actually wasn’t that way. Or that it was, but something else was more important. You can call it lying if you want. Or learning from mistakes. Or being wrong about a thing I told someone. Or whatever. It doesn’t matter what some random internet dude names it.”

                      What mistake did they make in 2016? They shouldn’t have said the American people deserved a voice? They were wrong about that? Getting power was more important than this apparently important belief? Why did they change their mind suddenly on a dime if they ever believed what they said in 2016?

                      “ And that’s owed to you for … what? For the thing you did? For the help you gave”

                      “ You didn’t earn it and you weren’t entitled to it. You can complain about not getting what you never tried to earn.”

                      What the actual fuck? Do you think that being told the truth is the something that people need to earn and are entitled to because of the things they did? Is your worldview really that transactional? Do you regularly lie to people who you think don’t “deserve” the truth so you can get what you want?

                    2. You’re still complaining about someone not giving you something you never had coming. You can whine but Daddy, you promised!!!!. Whine as much as you want.

                      People who do what Democrats did to Brett Kavanaugh don’t deserve rewards. Be less terrible.

                    3. The truth is not a reward to be earned. It is a moral obligation. Thinking it is something you earn is actually terrible. You have extremely bad ethics. I may have anxiety about Trump, but you are apparently a sociopathic sadist who views moral obligations as transactional and revels in the pain of others. I would suggest you see a therapist, but I don’t think there is much you can do about personality disorders.

                  2. + 1 to all your comments here, LTG.

                    1. It’s incredible how with each post Ben_ goes further and further in demonstrating his bad ethics. It’s gone from the simple cynicism of “all politicians lie” to “some people deserve to be lied to and you have to earn the truth from others.” In another thread he thinks it is “crybullying” to call out sadism. The Trump-era really has exposed some extreme darkness in a lot of people.

                    2. Ben_ thinks all liberals are immoral and don’t care about the costs of their proposed policies.

                      He also believes maintaining the status quo definitionally has no cost.

                      He’s too dumb even to idealogue right, so he makes up for it with spitefulness.

                      I am not a fan.

      2. Don’t despair about the darkness. The light of reason will overcome the darkness. That’s the American way.

      3. Lying to the American people about their worth to the system is incredibly dark, offensive, and degrading.

        Existential doom and gloom aside: how incredibly lucky are we, to live in a country in which we can punish “lying” through simply visiting the poll booth or bubbling a few forms from the comfort of your home!

        1. We’re talking about the Senate here, an anti democratic institution which was created to ensure the primacy of the White race, and still serves that function.

      4. It must really hurt to have your childhood heroes, the Super Critters of Congress, revealed to be full of shit and duplicitous flipfloppers to boot.

    2. “If you want to understand what’s wrong with American government, look at that quote versus the reality of ACB. She is well qualified and obviously capable — to say the least.”

      The problem was less the candidate than the path to confirmation. Mitch is not “well-qualified and obviously capable”, to say the least.

  12. It’s true that, as Adler points out, Stevens, O’Conner, Blackmun, and Ginsburg were confirmed in roughly the same number of days as Barrett. But three of those justices were confirmed by a unanimous vote and the fourth had only 3 negative votes. I suspect that a confirmation process of this rapidity when, as here, there is significant opposition to the appointment is unprecedented. I am not expressing a view on whether Barrett belongs on the court. I am suggesting that the Democrats have a point when they complain that the confirmation process was rushed.

    1. But three of those justices were confirmed by a unanimous vote and the fourth had only 3 negative votes.

      It’s almost as though those justices were nominated back in the day when the votes were about the senators’ perceptions of the qualifications of the candidates. Had that been the case today, I suspect you’d have seen close to a unanimous vote here as well.

      1. Or 2016, which is why McConnell had to block Garland.

      2. How many Republican votes to did Harriet Miers get??

        1. Harriet Ellan Miers (born August 10, 1945) is an American lawyer who served as White House Counsel to President George W. Bush from 2005 to 2007. A member of the Republican Party since 1988, she previously served as White House Staff Secretary from 2001 to 2003 and White House Deputy Chief of Staff for Policy from 2003 until 2005. In 2005, Miers was nominated by Bush to be an Associate Justice of the Supreme Court of the United States to replace retiring Justice Sandra Day O’Connor,
          “but—in the face of bipartisan opposition—asked Bush to withdraw her nomination.”

  13. Start now earning extra $16,750 to $19,000 per month by doing an easy home based job in part time only. Last month i have got my 3rd paycheck of $17652 by giving this job only 3 hrs a day online on my Mobile. Every person can now get this today and makes extra cash by follow details her==► Read More  

    1. And all I have to do is write fake emails implicating various Bidens in corruption and then pretend to “find” them on a laptop?

  14. There’s a handy list on pp. 9-11 of the Appendix to Ilya Shapiro’s Supreme Disorder.

    There’s a pretty good list on Wikipedia too:
    https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States

Please to post comments

The Seventh Rule of Court Packing Is To Rule Out Term Limits for Supreme Court Justices

Biden: "It's a lifetime appointment. I'm not going to attempt to change that at all... But I have made no judgment, my word."

|

The first rule of Court packing is you do not talk about Court packing.

The second rule of Court packing is you do not talk about Court packing.

The third rule of Court packing is you only talk about Court packing after the election.

The fourth rule of Court packing is accuse the Republicans of Court packing.

The fifth rule of Court packing depends how Republicans handle it.

The sixth rule of Court packing is appoint a commission to recommend court packing.

The seventh rule of Court packing is to rule out term limits for Supreme Court Justices.

Today Vice President was asked if he would be open to a recommendation from the Garland Commission for term limits. Biden emphatically rejected that position, but then insisted that he had not yet made a judgment.

"No. No. No. No. There is a question about whether or not–It's a lifetime appointment. I'm not going to attempt to change that at all. There's some literature among constitutional scholars about the possibility of going from one court to another court, not just always staying the whole time on the Supreme Court. But I have made no judgment, my word. My word is I have made no judgment. There is just a group of serious constitutional scholars who have a number of ideas how we should proceed from this point on. That's what we are going to be doing. We are going give them 180 days, G-d willing if I am elected, from the time I am sworn in, to be able to make such a recommendation."

First, I think Biden was about to say there is a question whether term limits could be imposed by statute. But he stopped himself. I agree. Among the various proposals, adding term limits by statute is subject to the strongest constitutional challenge.

Second, Biden is sending the marching order pretty clearly. He doesn't want term limits. The benefits of term limits would only pay dividends in 18 years. No politician would ever rely on such a long time horizon. He wants the ability to rotate Supreme Court Justice to the lower courts and promote certain Circuit Justices to the Supreme Court. And of course, Biden will pick progressive jurists for that role.

Third, Biden seems to suggest this group of scholars has already been selected. Who are they? Identify yourselves! How many of the people who criticized my Garland commission post are already on the short list of the Garland commission?

Fourth, the conclusion is foregone. The members of the commission will just be going through the motions. Once, I was a member of an organization that asked me to sit on a committee to make a recommendation. It turned out that my recommendation would serve no purpose. The leadership had already made its decision. My work would be meaningless. At that point, I refused to participate in the meaningless process. And my abstention deprived the committee of a quorum. As a result, the committee could not make any recommendation, and the entire process was held up. I was able to hold out, and persuade the full organization to modify the rules of proceeding. Now, it was clear that the leadership, and not the committee, was actually making the recommendation. In that fashion, accountability was clearly laid at the feet of leadership. Ultimately, I agreed with leadership's decision, and was proud that the process was meaningful.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Having a position for/against term limits has no hold on a position for/against court packing, I don’t see the conflation here Blackman.

    1. I kind of lost the thread after the second rule.

    2. Here’s how the logic works.

      1. Appoint a “commission” on judicial reform measures. This way the “commission” can recommend the choice you want to make. It’ll look neutral and apolitical that way.
      2. But apriori rule out all the potential reform measures except the pre-existing decision that you wanted to make anyway.

      1. Sorry whoever I accidentally flagged on my phone.

    3. The fundamental question of court packing is never “should we put more justices on the court”, but always “how do we fill the court with people who agree with us”. Most of the rules are then derived from concerns about how to do that without losing the election that you think will enable the measures you want to take.

  2. Volokh specializes in interesting first amendment cases on this blog.

    Soymin does immigration.

    Mr. Blackman does political bs. This form of content is kinda getting annoying. You have interesting legal stuff to say, why not say that? 4 months ago you complained endlessly of “blue june” and how the conservatism legal movement is dead and now apparently there is another thing and another … very few people still care about this political back and forth at this point. Or at least those who do should really get another hobby.

    1. You don’t have to respond. Blackman does plenty of other pieces.

      1. Blackman does plenty of other pieces.

        Yes, that’s the problem.

        1. About a variety of subjects.

          Personally, I find the concept of destroying the independence of the SCOTUS, and merely turning it into a rubber stamp for Congress a horrible idea, that will undermine individual rights throughout the country. But that’s just me.

          1. It also so happens that the “don’t be a rubber stamp” will only apply to Democratic policy initiatives.

            1. Oh, that’s just naive…

              Court Packing turns the court into a rubber stamp for whoever has control of Congress.

          2. You don’t like Court enlargement?

            Let’s see how long your opinion is relevant in Congress and the White House.

  3. The first rule of Neverending and Relentless Bad Faith is that you assume that everyone else is also acting in bad faith at all times.

  4. “The benefits of term limits would only pay dividends in 18 years. No politician would ever rely on such a long time horizon.”

    This makes one wonder if Professor Blackman has bothered to do the minimal due diligence of reading Calabresi’s proposal on SCOTUS term limits, since that proposal randomly assigns existing justices terms of between two and sixteen years.

    1. Still too long and chancy for Biden. Biden’s got 2, maybe 4 years. He needs immediate dividends.

      1. I’m not trying to argue for or against the merits of the proposal in this case, just pointing out that it’s one of the most talked-about implementations of Supreme Court term limits and Josh doesn’t seem to have bothered to have read it before forming an opinion on the matter.

    2. “randomly”

      The worst way. You could get old man Breyer with the 18 and Amy or Kagan with the two years.

  5. In a previous post, where Blackman provided incorrect information on Associate Justice John Blair’s date of death, I predicted he would post more court-packing pieces. I am constantly impressed with how prescient my writing is (pat on my back).

    Told you so.

    1. I predicted this morning that I would eat dinner this evening. Darn I am good.

  6. Funny how only the democrats(jews) go bonkers when they don’t get their way. RBG was put on SCOTUS by Clinton because Judith Kaye of NY declined, the country lived with RBG well beyond her usefulness, what is the big deal with replacing the jew with a Catholic? Will the country be better under Talmud law or Church law….not that the Constitution matters anymore.

    1. Funny how only bigots find Jews to be unwelcome unsavory characters.

      What else do you hate? People minding their own business? Choice? Sanity?

      I suppose if hating Jews was my primary activity all day, I’d hate myself too, because I’d be convinced that only Jews could be as despicable as I am.

    2. There is no prouder nationality than Jewish. Read up on it sometime.

  7. Second, Biden is sending the marching order pretty clearly.

    In a rambly statement in a random interview that most people aren’t going to notice?

    That’s a grotesque version of “clearly” you got there.

    1. Well, it’s that or another of Blackman’s fawning posts over ACB.

      These are tiring, but those ones are just gross.

      1. Fair point—the floor vote started almost 20 minutes ago, and yet it’s crickets. Hope Prof. Blackman didn’t have an accident or take ill.

      2. Yeah let’s have the tidal wave of fawning over RGB instead!

      3. “Well, it’s that or another of Blackman’s fawning posts over ACB.”

        Legal commentators are entitled to “fawn” over whoever suits their fancy, be it Amy Coney Barrett or Masha Gessen.

        1. Everyone is entitled to say whatever they want, whether or not they are a legal commentator. And everyone is also entitled to make fun of someone for excessive fawning.

          1. You’re tellin’ me?

        2. Entitled? Sure.

          Still gross the way Blackman does it.

  8. I’m not going to do what I can’t do. Wow what a sacrifice!

  9. There’s only one rule. It goes like this:

    Republicans appoint judges who will generally (not always) support their policy goals. So do Democrats.

    Republicans like the current SCOTUS because it is very likely to support their policy goals. That’s why Democrats dislike it.

    Republicans have done everything constitutionally in their power to get to a 6-3 majority on the Court because they believe that doing so will further their policy goals. Democrats are perfectly entitled to do everything constitutionally in their power to gain a majority of Democratic appointees on the Court in order to further their policy goals.

    Period. The end. The rest is, if not noise, surely hypocrisy.

    1. Republicans put on the bench young hard-right conservatives.

      Democrats put on the bench older center-left moderates.

      There are not two sides to this.

      1. The worst part is that they do this with district court nominations. Kathryn Mizelle has only been a lawyer for 8 years, has spent half of that time clerking and is obviously getting the gig in part due to political connections with the White House. And now she’s supposed to be interacting with litigants and parties on a day-to-day basis and sentencing people. I’d rather they put her on acircuit court where she can write self-indulgent concurrences instead of interacting with litigants. I think Justin Walker showed he had no business being a trial court judge in his two high profile cases. Trial court judges need to be experienced, thoughtful, and practical. They don’t need to be ideologically pure one way or the other. The higher courts will deal with the politically important cases how they see fit no matter what the district court does. So putting these types of people there is really a waste of everyone’s time.

        1. Tell me about Alison Nathan next

          1. She shouldn’t have been given a district court spot until she had a few more years of legal experience. What do you expect me to say?

            1. Nothing about how she “just got the gig due to her political connections”?

              Tell me about Jesse Furman next.

              1. Here’s another good story…

                The Democrats lost the Senate in the November elections in 2014.

                They then proceeded to ram through over 25 district court nominees in the lame duck period in November 2014 and December 2014, before the GOP would take the Senate…

                1. Okay. What’s your point?

                  1. Don’t bitch too much if Team R rams through ~40 judges, post election. I think that is the point.

      2. So, my favorite chart is that liberal/conservative drift on the SCOTUS bit they put out…

        And you see Kagan and Sotomayor drift substantially more liberal, while Kav and Gor are….fairly moderate.

        Then you realize Kagan was nominated at right around 50 years of age…

  10. Judge Barrett just became Justice Barrett. She will be a fine justice.

    1. Who will in part be remembered as someone who profited immensely off of the lies, hypocrisy, and bad faith dealing of others while casting herself into a martyr. Off to a great start.

      1. She may be remembered as the precipitate for Democrats politically bombing Republicans back to the Stone Age, all but eliminating the system’s structural amplification of yahoo votes.

  11. *cough*hack*cough*

  12. What exactly is the reform of SCOTUS supposed to address? What is the issue(s) of contention? For decades SCOTUS was left of center, and there was never a problem. That means ideological balance is not the issue.

    1. It’s a response to Cocaine Mitch’s dishonesty/hypocrisy re: Garland and ACB.

    2. iowantwo : What exactly is the reform of SCOTUS supposed to address?

      It’s pretty simple : Barrett after Garland requires a response from the Democratic Party. Everyone knew that, particularly the GOP. They knew it well before they rammed Barrett’s nomination thru just days before an election.

      All the Right-type commenters here mewling about court expansion knew it as well. They were well aware of the potential consequences of the hypocrisy & power politics they applauded. They didn’t have to cheer; McConnell could have waited a few more days. They made their choices and should be prepared to live with the result.

  13. Josh, you can keep sitting by that phone waiting for the Dems to call and ask for you to set their agenda as long as you’d like. I assume your ego demands it. But you will not be setting any democratic agenda pertaining to the USSC, or anything else.

  14. TO continue to dishonestly maintain that a legitimate legislative prerogative is ‘wrong’ because it conflicts with your political views is nakedly transparent

    and unconvincing

    The ways to stop Biden from increasing the size of the court and ending the tyranny of the minority

    Win the Senate
    Win the Presidency

    Or the way it was solved the last time it came up:

    One or more of the sitting [conservative] justices resigns, dies, or has a drastic change in outlook

    Radical right wingers out of step with the long term wishes of the people populate the court.
    This is not tenable long term

    court packing may save the reputation of the court

    the next step, statehood for PR, and the expansion of the house to better reflect the population of the country and prevent another loser like trumpski from being elected

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Immigration

Study Finds Sanctuary City Policies Reduce Deportations Without Increasing Crime

The much-publicized result is ocnsistent with previous studies on the impact of sanctuary city

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Over the last decade or so, many state and local governments have adopted "sanctuary" policies that restrict their law enforcement agencies' cooperation with federal efforts to deport undocumented immigrants. Critics, including the Trump administration, claim that sanctuary policies increase crime. Trump has adopted a range of policies designed to coerce sanctuary jurisdictions into doing the bidding ICE, which in turn has led to numerous court decisions striking down the administration's policies.

A recent widely publicized study by Stanford University political science research fellow David Hausman finds that sanctuary city policies result in a reduction in deportations, but no accompanying increase in crime. Here is the abstract summarizing the findings:

The US government maintains that local sanctuary policies prevent deportations of violent criminals and increase crime. This report tests those claims by combining Immigration and Customs Enforcement (ICE) deportation data and Federal Bureau of Investigation (FBI) crime data with data on the implementation dates of sanctuary policies between 2010 and 2015. Sanctuary policies reduced deportations of people who were fingerprinted by states or counties by about one-third. Those policies also changed the composition of deportations, reducing deportations of people with no criminal convictions by half—without affecting deportations of people with violent convictions. Sanctuary policies also had no detectable effect on crime rates. These findings suggest that sanctuary policies, although effective at reducing deportations, do not threaten public safety.

The article is, unfortunately, gated, so it may not be easy for readers without university or research institute affiliations to get free access. But this Washington Post article has a good summary of the results,as does the Hill. Hausman's findings are consistent with those of previous academic research on the subject, which consistently also concludes that sanctuary city policies do not result in increased crime rates, and may even reduce them. In Chapter 6 of my recent book, Free to Move, I use this and related evidence to make the point that we can better combat violent and property crime by redirecting resources currently used for deportation efforts to conventional policing. For example, I estimate that  zeroing out ICE immigration enforcement programs would free up enough funds to pay the salaries of over 60,000 new police officers. And unlike ICE's current activities, extensive evidence indicates that having more conventional cops on the street really does reduce crime—though it is also important to do more to curb police abuses against civilians, including racial profiling.

I do not suggest that hiring more cops is the best possible use of resources currently devoted to deportation efforts. But, if the goal is reducing crime rates—particularly when it comes to violent and property crimes that actually harm people, it would be a major improvement over the status quo.