Supreme Court

Conservative Judges Chose Legal Principles Over Partisanship and Trump—But We Shouldn't Take that for Granted

Conservative judges have stymied Trump in his election challenges - and many other cases where his positions went against their legal principles. But a populist/national GOP could gradually change the nature of conservative jurisprudence.

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The Supreme Court.

 

In a recent Time column, prominent conservative legal and political commentator David French highlights how conservative judges have stymied Trump's bogus attempts to overturn the election. In so doing, they placed their legal principles above any loyalty they might feel to Trump and the GOP:

On Friday evening, the Supreme Court of the United States unanimously rejected Texas attorney general Ken Paxton's effort to invalidate the election results in Georgia, Michigan, Pennsylvania, and Wisconsin. Seven justices said Paxton had no standing to bring the case. Two justices – Clarence Thomas and Samuel Alito – would have granted Texas's motion to have its case heard, but they would have denied relief.

To put this plainly, not one justice was willing to overturn the presidential election. Each of Trump's three judicial appointees rejected the case. And with this single act, the Supreme Court dramatically exposed a fascinating division within the conservative movement. Time and again, elected officials supported quixotic and frivolous judicial challenges to the outcome (for example, Senator Ted Cruz even offered to argue election challenges at the Supreme Court) or remained silent. At the same time, the conservative legal movement—especially its members of the judicial branch—crushed Trump's fever dream of an improbable second term.

As French points out, the rejection of dubious GOP election challenges by conservative judges wasn't limited to the Supreme Court. Prominent conservative lower-court judges such as William Pryor (Eleventh Circuit) and Stephanos Bibas (Third Circuit) also issued forceful opinions to that effect. Just a couple days ago, Trump-appointed district judge Brett Ludwig ruled against the Trump campaign in a Wisconsin election case where he addressed on the merits some of the same claims that the Supreme Court rejected on procedural grounds in Texas v. Pennsylvania.

It is important to emphasize that the election cases are far from the only time the Trump administration's more dubious and dangerous positions have been stymied by conservative judges. Just a few days ago, the Supreme Court  (including all the conservative justices, with the exception of Amy Coney Barrett, who wasn't confirmed in time to participate) unanimously ruled against the administration in an important religious-liberties case allowing Muslim victims of discrimination by law-enforcement agencies to seek money damages.

Earlier this year, conservative justices provided key votes in 7-2 decisions rejecting Trump's claims that he has an absolute right to refuse to provide tax returns and other information to congressional committees and state prosecutors. In the Bostock case, Trump appointee Neil Gorsuch (joined by conservative Chief Justice John Roberts) wrote a path-breaking opinion holding that Title VII of the Civil Rights Act of 1964 bans employment discrimination on the basis of sexual orientation—a result much hated by both the Trump administration and social conservatives generally. Gorsuch has also voted against the administration in a number of important civil liberties cases.

Numerous conservative lower-court judges have voted to strike down the administration's efforts to bully and pressure sanctuary cities and states into supporting the administration's efforts to deport undocumented immigrants. In June, the Supreme Court refused to consider the Trump administration's appeal of a lower-court defeat in the California "sanctuary state" case. Attacking sanctuary jurisdictions is, of course, a major priority for Trump and other populist/nationalist conservatives.

In each of these cases, Trump administration priorities clashed with longstanding legal commitments of conservative jurists, such as textualism (Bostock), originalism (several cases), federalism (sanctuary cities), and separation of powers (sanctuary cities, Trump v. Mazars and Trump v. Vance). And, in each case, the principles won out.

Conservative judges have sometimes issued dubious decisions favoring Trump. The 2018 travel ban ruling is perhaps the most notable example. But that ruling was the result of the longstanding (though badly wrong) belief of many judicial conservatives that immigration restrictions are exempt from most normal constitutional scrutiny, not a special favor for Trump.

Why did conservative judges stick to their principles even as most GOP politicians caved to Trump? Part of the reason is the different incentives of judges relative to elected officials. Thanks to life tenure, the former have far less reason to fear political retaliation from Trump and the GOP base. David French also highlights the differing cultural and institutional settings of the two groups:

Why are conservative attorneys and jurists rejecting Trump even as so very many GOP politicians are embracing his extraordinary, dangerous, undemocratic and legally frivolous campaign to overturn the election? The short answer is that the culture, philosophy, and incentives of the conservative legal movement are all aligned against the president.

And, to be clear, the "conservative legal movement" is a distinct, elite sub-culture within the broader universe of Republican lawyers. It represents mainly the professors, judges, and elite private-practice lawyers who form the backbone of the Federalist Society (a private nonprofit network of law school student groups and lawyer chapters across the nation) build and sustain conservative public-interest legal organizations, work at white-shoe law firms, and practice the bulk of complex conservative cases in the nation's highest courts….

Of course, not every member of the Federalist Society embodies its culture and approach – especially now that membership is often seen as mandatory for political and judicial advancement in Republican administrations. But its traditions matter, especially to its most elite lawyers.

The conservative legal movement also has a distinct legal philosophy. Overwhelmingly, "movement" lawyers are originalist and/or textualist. Laws mean what they say on their face. Disputes about meaning are resolved by the text itself or the "public meaning" (the common understanding of the law) at the time the text was passed.

Many conservative lawyers are also institutionalists. John Roberts is a notable example. They have deep respect for the reputation of the judiciary and the integrity of the bar.

Finally, the incentive structures for the best lawyers in private practice are remarkably different than those for elected conservative politicians. While a member of Congress believes he risks his career if he doesn't embrace Trump's conspiracies, a conservative lawyer in private practice risks his professional reputation (and thus his ability to progress through the highest ranks of his profession) if he does.

 

It's worth noting that there are some parallels to this divergence between politicians and jurists on the left, as well. During the Obama administration, liberal Supreme Court justices—including Obama's own appointees—voted against the administration in several high-profile property rights and religious liberties cases where the government took highly dubious positions favored by many on the political left. Just last year, an Obama-appointed district judge forcefully ruled against a coalition of blue states that brought a lawsuit claiming it was unconstitutional for Congress to cut the SALT tax deduction in 2017. Restoring the SALT deduction is a major priority for Democratic Party politicians, but that hasn't swayed liberal judges, who recognize that the blue states' constitutional arguments in the case were extremely weak.

Conservative judges' performance in the election cases and a number of other disputes involving the Trump administration justify a measure of conservative crowing at liberals who wrongly claimed that these judges would turn out to be Trump's "pawns." Similarly, the performance of liberal judges under the Obama administration should have tempered longstanding conservative claims that the former are just rubber stamps for whatever the political left wants.

Nonetheless, David French rightly warns that this disjunction between conservative judges and Republican politicians may not continue indefinitely:

But there are storm clouds on the horizon. If the GOP continues to indulge populism, conspiracies, and cruelty, the elite-driven conservative legal movement is fated to fall. Too many state attorneys general have already capitulated. Politicians will lose patience for judges who frustrate their ambitions, and they'll look for the lawyers – like the members of Trump's legal team – who will do their bidding, as both advocates and jurists.

There are plenty of Republican lawyers who have no concern for the culture and philosophies described above. Many of them have already sought and won public office and now abuse the power and duty of their office to support Trump. The core of the conservative legal movement, however, is discarding Trump, because the law says it must.

There are Republicans who will interpret this necessary, principled stand as an act of betrayal. They will impose new pressures on conservative lawyers and create new tests for potential court nominees.

Judges enjoy a measure of autonomy from the parties and presidents who appoint them. That's partly because of institutional design—the Framers deliberately structured the judiciary as an independent institution in large part insulated from electoral politics. As French emphasizes, it's also partly the result of the cultural autonomy of the legal profession generally and the conservative legal movement in particular.

But, for reasons French notes, that autonomy is far from complete. Over time, political parties try to appoint judges who fit their bases' preferences. If the GOP continues to be a populist-nationalist party espousing the same sort of agenda introduced by Trump (perhaps minus his egregious personal behavior), they will, over time, start to appoint judges who support that agenda far more consistently than current Republican appointees do.

If current conservative legal elites refuse to do the party's bidding out of concern for legal principles, future GOP presidents—if their priorities are similar to Trump's—will look to other, less scrupulous lawyers. Or they can look for those who are sincerely committed to the Trumpist/nationalist world view and genuinely believe that its priorities are perfectly consistent with the correct interpretation of the Constitution and other relevant laws.

If current conservative legal elites reject this world view, the political right can cultivate new elites who view it more favorably, if necessary building new institutions to do so.  The next generation of conservative legal elites might include more populist/nationalist types who believe that federalism should give way to immigration crackdowns when the two conflict, religious liberties protect primarily (if not exclusively) theologically conservative Christians and Jews, civil liberties should be set aside when they become inconvenient for law enforcement or for social conservative policy priorities, the executive should have broad power to ignore congressional and judicial subpoenas, courts should indulge dubious claims of voter fraud—and so on. This approach could be justified by reinterpreting originalism to fit its parameters (a task already being pursued by a few conservative legal intellectuals), some version of Adrian Vermeule's "common good constitutonalism,"  a conservative variant of "living constitutionalism," or some combination of all three.

Early living constitutionalism was in considerable part pioneered by nineteenth century evangelical conservatives, who developed it to justify various constraints on liberty favored by what we would today call the socially conservative right. Modern right-wingers could potentially go down a similar path.

We already see possible early indications of such trends in the statements of conservative politicians like Senator Josh Hawley, a leading light in the populist/nationalist wing of the GOP, which hopes to continue Trump's policy agenda (with or without Trump himself). After the Bostock decision, Hawley made a much-quoted speech suggesting that traditional conservative legal principles are a "bad bargain" for religious social conservatives and that originalism and textualism should be rejected (or at least greatly modified) if they lead to rulings like this one.

Even if Hawley and his ilk come to dominate the GOP in the wake of Trump, change among conservative judges will come only gradually. Because of life tenure and the relative autonomy of legal elites, judicial appointments are a lagging indicator of party ideologies. Often, it takes a long time for changes in the latter to significantly impact the former. I readily admit that I overestimated the potential pace of such change when I warned in 2016 that Trump could well appoint judges who conform to his nationalist/populist agenda rather than traditional conservative legal commitments, when the two conflict.

But the fact that the process is gradual doesn't mean it will never happen. Consider the history of the political left. In the early 20th century, progressive judges and lawyers generally endorsed "judicial restraint" on both economic and social issues. They were, to a large extent, happy to uphold racially discriminatory laws, restrictions on civil liberties, forcible sterilization in the name of eugenics, and much else that is today inimical to modern liberals.

Even in the late 1950s, some progressive luminaries such as Judge Learned Hand and famed Harvard law Professor Herbert Wechsler, attacked Brown v. Board of Education as an example of judicial activism. Others, such as Justice Felix Frankfurter, continued to take a very narrow view of civil liberties. As late as 1962, Democratic President John F. Kennedy nominated Byron White to the Supreme Court—a justice who ended up voting against modern liberal positions on privacy and civil liberties, in numerous cases (though White, unlike Hand, was a relative racial liberal who supported Brown and other decisions striking down segregation laws).

Between the 1940s and the 1960s, however, the Democratic Party gradually moved towards a combination of racial liberalism and greatly increased solicitude for civil liberties (though not "economic" ones). Eventually, the likes of Hand, Wechsler, and Frankfurter became dinosaurs. By the 1970s and 80s, most loyal Democrats —including Democratic legal elites—could barely even imagine their party nominating such seeming troglodytes to the courts. As the examples noted above indicate, liberal judges do sometimes vote against the preferences of Democratic politicians and voters. But few if any are as radically at odds with those preferences as a Hand, White or Frankfurter would be in the highly unlikely event that a Democratic president were to nominate such a person today.

If the GOP continues to move in a nationalist/populist direction, conservative judges like Gorsuch might eventually seem just as outdated as Hand, Wechsler, and White did by the end of their respective careers.

Whether that actually happens depends on political and social trends. It might take several years or even longer before we can tell which way the wind will actually blow on these matters. In the meantime, we should be grateful for the relative autonomy of conservative judges, and for their commitment to principle over the current dangerous agenda of their party. But we should also remember that such autonomy doesn't last forever.

NEXT: Poetry Monday!: "Je crains pas ça tellment" by Raymond Queneau

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  1. Meanwhile, you can take it to the bank that today’s Democrat-appointed judges, and especially justices, will ignore established law and precedent in order to give Democrats what they want.

    But Somin only has enemies to the right.

    1. They’ve been doing that for 40 years. The most outrageous examples are creating “rights” to vacuum out a baby’s brain and to erupt in another man’s rear.

      1. The straightest people in the land
        Protest, methinks, too much
        For in their closets you will find
        They’re either butch or such

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      2. Aktenberg78, I suspect there are gay men who spend less time thinking about butt sex than you do.

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      3. I’m fine with activist courts finding unenumerated rights due to changing attitudes. I am not fine with expanding government control over business due to claimed changing desires of the people.

        The first is in line with concepts of freedom on which this country is based. The second is in line with dictatorship and historical worldwide corruption, the opposite of concepts of freedom on which this country was founded, where those in power can get in your way to benefit themselves or their friends, or just hurt you because you are not a (paying) friend.

        Since our government is one where, in theory, it only has powers it has been granted by The People, who in God’s name would grant government the power to regulate sexuality in the first place?

        “Poor is the man whose pleasures depend on the permission of another.”

        1. One man’s “freedom” is another man’s “control over business.” The only way to give a homosexual “couple” the “right” to get a wedding cake from a private baker is to force the baker to make it for them, and thus to control his business.

          The only way to give a person the “right” to “housing” and “health care” is to take someone else’s money to do it.

          1. Why is that? Why don’t they go to a baker who wants their business rather than a baker who does not want their business?

            Does being in business remove your rights as a free citizen??

            Positive rights always mean enslaving others or at least taking from them that which they have fairly earned and giving it to someone who has not earned it.

            Positive rights are for those who believe two wrongs can make a right!

            1. That was my point.

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        2. I’m not fine with it, because in practice the only attitudes they care about are their own. As well demonstrated by Obergefel, where the judiciary got caught up in a fad, and just rolled over every democratic effort to stop them. And the, after reversing the outcome of just about every democratic test of public opinion, congratulated themselves on implementing public opinion.

          When the public’s attitudes change, it tends to be reflected in legislation, and not need this sort of judicial intervention. Perhaps at most in outlier jurisdictions.

    2. Bingo. Funny how a perfectly reasonable attempt, backed by lots of evidence that the court wouldn’t even look at, becomes “frivolous,” “meritless,” and “quixotic” because the thoroughly corrupt big media, in lockstep with the rest of the thoroughly corrupt left, say it is.

      The plain fact that the media insist on drowning in a flood of lies is that Trump is about the only non-corrupt politician in Washington. You can tell that by a simple test, which Democrat Harry Truman gave us: if a politician becomes a millionaire while in office, he is corrupt, otherwise “it cannot be done.” Trump has LOST money while in office. Q.E.D.

      1. Trump has LOST money while in office. Q.E.D.

        Have you seen his personal financial statements?

        1. If Trump lost money while president it’s only because he’s a bad business man, to the extent that he’s a business man at all. Imagine how much he would have lost if he hadn’t been president and interest rates hadn’t been lowered to crazy levels and he hadn’t gotten that massive tax cut.

          1. Which one was it:

            A) He wasn’t paying any taxes
            B) He gave himself a tax cut

            Because “both” doesn’t make sense

      2. There wasn’t any evidence. The cases kept getting thrown out for lack of evidence.

        1. Yeah, the idea that the media, craven and evil as it is, convinced conservative judges to throw out good evidence is utterly retarded.

          There is no evidence. At least no evidence that can withstand even the low level of scrutiny required to get past the complaint stage.

    3. Once I assume bad faith on the part of Democrats, anything I want to do is perfectly justifiable!

      1. No assumptions required, only looking at rather obvious, and previously reported, data. The blog requires moderation for a comment that links to just two independent reports, but you too can search for “Supreme Court voting blocs”. The “liberal” (meaning leftist orthodox) wing votes as a bloc quote a bit more often than the conservative wing, especially after one subtracts unanimous decisions of the Court.

      2. It mostly just saves time. Anyone who doesn’t automatically assume bad faith gets heckled mercilessly by people for a long time, and then the hecklers are proven right: Democrats were acting in bad faith, of course. Keeps happening over and over and over and over.

        Being a fool and getting fooled over and over isn’t a virtue.

  2. And yet Progressive judges rubber stamped Progressive politicians from the 1880s anti-trust and regulation to FDR’s New Deal.

    After that, everybody took the hint, so the Wars on poverty, drugs, crypto, and everything else were just business as per the new usual.

    1. Wow… progressive judges were able to completely swing conservatives to their cause! Amazing. If it weren’t for those darn progressive judges, solid conservatives like Reagan and the Bushes would never have supported the “War on Drugs” and tried to weaken the availability of crypto!

      1. Clinton and his Clipper chip were the ones who really tried to weaken crypto.

        1. And try to force you to have an overt ID card to get onto the Internet so government could track you.

          As it turned out that was unnecessary as inconceivable amounts of money have been spent recording, tracking, and collating information flying around.

      2. Maybe you should look at Congressional voting records before opening your piehole. Both parties supported the stupid war on drugs, and the current war on trafficking, to include the schmuck about to take the Oval Office.

        1. That is what he wrote, you bigoted, worthless imbecile.

          Did you enjoy the Electoral College proceedings today? I did. Because I like watching clingers lose — in the culture war, in the Electoral College, in just about any context.

          Carry on, clingers. And open wider!

          1. Democrats only win by cheating. Cheaters.

            1. We’re still waiting for proof of the cheating, David. Tomorrow, maybe? And we’re looking forward to having you explain why you waited until it was too late for anyone to do anything about about it.

  3. Somin and French both understand that the claim of symmetry between right and left leaning judges is bogus.

    The left vote as a bloc on any political topic. The right divide into at least two principled groups, and the left wins the big ones.

    Tell us, Somin and French about the symmetry involved in Obergefell.

    Tell us about the symmetry which rescued Obamacare.

    There is precious little principle on the left when politics are involved. That gives them a powerful advantage, and fuels the desire to counter that on the right by actually being symmetric.

    1. The left’s principles are limited to “The ends justify the means.” Every time.

      1. Oh no, mob terrorism is a big part of this. ACB is worried about the safety of her children, etc.

    2. The liberals all of a sudden finding some limitations to the administrative state in the DACA case (among other immigration cases) also comes to mind.

  4. Didn’t read, but also don’t forget about all the widespread election fraud, shutting out observers, ballot harvesting, etc.

    If you don’t do election reform to protect vote integrity (in-person voting for the secrecy of the ballot, citizenship verification, audit-trail paper) then people will quickly (and correctly) conclude that niceties like the rule of law aren’t very important and don’t really exist in practice, other than in a one-sided pretextual way.

    1. The “rule of law,” “norms,” and “civility” are bludgeons to be used against conservatives, only.

  5. Not conservative principles. Just the Deep State running its con.

    1. Republicans should imitate all the Democrat methods of stealing elections, and by double.

      1. Trust me, Roberts and Kavanaugh and ACB will have no problem stealing an election to make George P Bush president.

        1. SC,
          That is a stupid retort … and you know it.

          1. DN,
            That’s a stupid retort…and you know it…because Republican justices stole an election for his uncle.

            1. Yes, recounting only three counties in a state instead of ALL of them sounds totes legit.

              Bush won, mind you.

              Just for people laughing at Trump supporters here, Gore supporters STILL think he had his election stolen 20 yrs ago.

      2. Anything times zero is still zero, you fool.

  6. David French is an hysterical ninny. Natuarally Somin agrees with him. Sucks for him that he is a fossil but no need to pay him any attention either, he speaks for the politically dead.

    Trump’s suits would be rejected by just about any judge but this generation of judges needs to start delivering victories to conservatives. Or the are going to get steamrolled.

    1. I’d love to see a nationwide smackdown of “may issue” and “assault weapons bans,” just to watch leftists pee their pants.

  7. First off shouldn’t you be apologizing for accusing Trump appointed judges of just waiting to play fast and loose with the law? And shouldn’t the media be doing a whole theme of stories about how those predictions were wrong?

    And then are we going to hold “resistance” judges to the same laudatory standards? I expect to hear condemnation from the Left when one of those judges enters a national injunction designed to help “run out the clock” on a new regulation. Or when a judge enters a stay of execution last minute not because there is legal merit, but because they disagree with the politics behind the death penalty.

    Of course these expectations will not become reality because what we are seeing is the blatant application of two sets of rules. And the left wonders why the right won’t play the game like this anymore…

  8. Indeed, it is imperative for right-leaning justices to admit that the left’s judicial philosophy of a “living” constitution has won the interpretation wars and they should immediately start pushing that life to the right by making things up just like Democrat judges.

    So many emanations, so little time.

    PS: Come the revolution, I plead with the revolutionaries to please provide a blindfold and take Mr. French last — he’s such a sensitive soul!

    1. None of that will work unless we can retroactively strip of citizenship the people who were given it improperly in the first place.

    2. A good penumbra of the constitution would be a constitution right to self defense. I think the courts could also interpret that into the right of an unborn too. Abortion is an act of violence against a vulnerable human being (perhaps one of the most vulnerable in existence) and I don’t think it is a far hop to say you can’t subject a human to a summary, legally recognized, immune from prosecution execution.

      Same would go for an original interpretation of the 14th Amendment. Strip everyone of “birth right” citizenship and set up a court supervised process to regulate that (sort of like how courts managed desegregation).

      I’m sure there are many other avenues the court could explore in religious liberty and renewing federalism. I don’t see why the right should shy away from these fights.

      1. Thanks for providing an excellent illustration of the sort of thing the post is warning about.

    3. This “can’t beat ’em so might as well join ’em” schtick is defeatist nonsense.

      Two wrongs make a right? Is that really the argument I’m hearing from conservatives now? Grow up people.

      Just because our guy lost one election doesn’t mean we abandon our principles.

      1. They abandoned them at least 4 years ago already.

        It was confirmed when they held a show trial for impeachment, for an act that clearly happened, and let the president off without so much as getting testimony from him and his cabinet.

        1. That’s funny. Now do the Clinton impeachment. He was impeached over acts that very clearly happened. Ergo every Senator who voted against removal must have treated it as a show trial.

      2. If it was truly just about this election, you’re more of a deluded Eloi than I thought.

  9. I’d worry about the side that actively chooses partisanship over legal principles today and already has judges on the Court rather than the side that might hypothetically turn tomorrow but I don’t have Ilya’s ‘genius’ mind.

    1. Seriously, this.

    2. People on the left get nervous when the Republicans, playing the long game of activist Supreme Court control, as started and used by the other side for 60 years, near the finish line after 40 years.

      I’m more concerned about freedom of speech, in which case the Roe defenders switch to the wrong side breezily, because they’ve found political purchase in easy stimulation of the masses to use government to silence others.

      Granted, there is no historical precedence for politicians stimulating the masses for dictatorial powers they can use against their opponents.

  10. I have to hand it to Prof. Somin, he sure knows how to set off the loonies.

    1. This is the most fun I’ve had reading comments on a legal blog since NFIB v. Sebelius.

    2. You represent them well, Drinkwater.

      1. Thank you! My election to the position only involved a minimal amount of fraud.

    3. Kind of like the slow kid who ‘wins’ by pouring a bag of feces over his head. He sure got everyone’s attention.

    4. “I have to hand it to Prof. Somin, he sure knows how to set off the loonies.”

      The clinger Conspirators attract and lather them, then Prof. Somin’s libertarian content infuriates them.

      1. The lack of an Oxford comma caused you to misunderstand that sentence about “the libertarians, Ilya Somin and Benito Mussolini”.

  11. People are reading an awful lot into the current Court’s recent big decision not to engage in monumental stupidity.

    I mean is not really so hard to recognize that even if you don’t agree with a given judge’s personal political ideology or bias you can still give them credit for not wanting to smear themselves with dishonor and taint their personal legacy?

  12. In Arizona a group of those righteous conservatives noted in many of the above posts tried to send in counterfeit electoral votes. Of course they failed because they are so inept.

    “Copies of the documents obtained by The Arizona Republic show a group that claimed to represent the “sovereign citizens of the Great State of Arizona” submitted signed papers casting votes for what they want: a second term for Trump and Vice President Mike Pence.

    Mesa resident Lori Osiecki, 62, helped created a facsimile of the “certificate of ascertainment” that is submitted to formally cast each state’s electoral votes as part of an effort to prevent what she views as the fraudulent theft of the election.

    “We seated before the legislators here. We already turned it in. We beat them to the game,” she said”

    How is this not a crime? How is it these people are not being prosecuted? How is it that these people are even American citizens? And how is it that the hypocrisy of this magnitude is not condemned by the Republican party?

    1. How is it any different from any random loon barking at the moon? Or, somebody trying to rob a bank using a foam finger as a weapon?
      Or, Cleavon Little holding himself hostage?

    2. Careful, lest they sign out an arrest warrant for anyone sent to arrest them.

  13. You forgot to mention that the arguments pressed by Trump’s lawyers were otherworldly ridiculous and sua sponte should have been Rule 11’d. Any judge who accepted them would be in violation of judicial ethics. So no, this is not a mirror image of something on the left. I am still of the belief that Trump-selected judges are mostly judicial hacks and nothing they have done in the past month has convinced me otherwise.

  14. The reason why Somin’s concern trolling is so ridiculous is that Trump entire methodology was to outsource the selection of judges to the Federalist Society. Since the whole mission of the Federalist Society is adherence to an original intent or meaning of the Constitution and laws then it makes the dangers Somin is blathering about very remote.

    The overall quality of judges Trump has picked has been very high as evidenced by the boilerplate post we’ve seen many times on this blog from Kerr, Adler, EV, etc, perhaps even Somin: “I don’t support Trump but _________ sure will make a fine judge.”

    1. Of course that’s only true if that actually were the “whole mission of the Federalist Society.” Or if originalism actually were in service to anything besides justifying conservative ideological outcomes.

      1. lol… except for all the outcomes it doesn’t.

        I’m always amused when people on the Left discover that in fact we conservatives have beliefs that transcend the petty politics that liberals live and die by everyday. The result is typically disbelief and denial, but what can you expect from the folks that are so used to doing the 180 on issues that I can’t even keep track any more… free speech/hate speech, protections for the accused (if a cop and/or white Hispanic), executive authority (DACA), foreign relations (Russia good, Russia bad; China good, China bad, rinse & repeat), and now federalism, etc.

        1. Of course conservatives have long-standing beliefs. But how many Republicans today are conservatives?

          1. The only way to call conservatives conservatives (and liberals liberals) is in a circular manner: conservatives believe position x on a subject, and people who believe position x are therefore conservative.

            Long gone is the idea conservatives held high value in “established tradition as hard-wrought wisdom”, and liberals those who wanted large-scale overturning of such, to save society from itself.

        2. “lol… except for all the outcomes it doesn’t.”

          lol… name a few. As for the rest of your comment, yawn.

      2. They have a funny way to go about it then, since they don’t take any position on any public policy position.

        I do approve of the Federalist Society, but I am not as enthusiastic as Elena Kagen: “I love the Federalist Society”.

        1. That was my point, at least the first one. You said their whole mission was adherence to original intent. I don’t think that’s their whole mission. I’m not even sure it’s their mission at all. But even if it were…never mind, that was the second point.

    2. Original intent has nothing to do with the FedSoc.

  15. Activist Court for the left, none for the right. And you agree with this.
    Useful idiot, personified.
    The left wants one person, one vote, one time. And if they lose an election, then the Supreme Court enacts their policies through judicial fiat.
    And you agree with this.
    The Law must be equal to be legitimate. Yet you concede the inequality as a feature, not a bug.
    This is how a Republic dies, from the inside out.

    1. I agree that if our new model is for each side to do their best to outmatch the perceived worst offenses of their adversaries, we’re in for some trouble.

      1. It’s enough to get us in trouble if we feel free to fall just short of the perceived worst offenses of our adversaries, given the human tendency to exaggerate our adversaries’ offenses, and play down our own.

        In fact, that’s the exact dynamic which has created the downward spiral we’re trapped in.

        I also think it’s why the left is so fond of claiming its own adversaries are utter monsters. What can’t you do, and feel good about yourself, if you’re fighting Literally Hitler for the very survival of the nation?

        1. I also think it’s why the left is so fond of claiming its own adversaries are utter monsters.

          Brett, do you read the comments on this blog?

  16. In rule of law news, the open borders lobby is pushing for

    (a) executive order amnesty for 11-22+ million illegals,

    (b) returning of deported illegals back to the US,

    (c) a return to the open borders policy of freeing apprehended illegal border crossers into the interior of the US (usually never to be seen again) as long as they say the magic word asylum.

    Obama admitted that DACA was unconstitutional but then said he had to do it anyway under the “Congress failed to act” exception. Then, we had supposedly “conservative” judges struggling to defend it for years, even going so far as to block Trump from reversing a prior executive action (even though at the time, the primary argument used to defend DACA was that a future administration could reverse it at any time).

    1. Filling America with tens of millions of low IQ mestizos is a priority for leftists.

      1. And the Bush family…because the heir to the Bush dynasty is Mexican.

        1. Yeah, well I don’t approve of Jeb Bush, or of race mixing in general.

        2. SC,
          Your racism shows out

          1. I’m a Republican and I voted for Rubio.

      2. Millions of examples of your racist (seriously, fuck you) stereotypes would still be preferable to you existing at all.

        1. No, fuck you you worthless paddy. Your people have been part of the problem since the 1800s.

          1. Who do you think “my people” are?

            Please share with us your complete and utter ignorance. Let’s pretend that 2020 hasn’t had enough of you twats thinking that you have a place in society aside from being the town fuckup and the family member whom nobody speaks of because you’ve been disowned by every rational person in your life.

            You are a despicable, racist bigot.

            1. “You are a despicable, racist bigot.”

              If it wasn’t for the bigots who are so easily lathered by “god, gays, and guns” content, this blog would have scant reason to exist.

      3. All illegals will be voting for the Democrat Party, to make our nation a permanent one party state, as California is. They took the California act national.

        1. That’s the plan. They can’t convince Americans to go along with their traitorous beliefs, so they replace Americans with worthless, genetically defective third worlders.

          1. Importing immigrants hand over fist, not because this is a great, free nation, or because it benefits a free nation to have more workers, but so you can win elections is indeed a concern.

            But we cannot have a rational discussion of that because racists instantly bring up follow-on statements like this. It’s so bad I often wonder if these are actually trolls poisoning the well deliberately, for that purpose.

            1. Also, it’s not a concern. Immigration activists are part of the Dem coalition, and they have persuaded the party that immigration and immigrants are good. We know this because they say this, often.

              There is no evidence for the motives you put forth other than your own spiteful speculation.

              1. No evidence except the continual crowing about “inevitable demographic victory”, where the demographic change is very conspicuously driven by exactly that immigration they’re so determined to protect.

                1. That’s not evidence of Importing immigrants hand over fist, not because this is a great, free nation, or because it benefits a free nation to have more workers, but so you can win elections is indeed a concern.

                  Also not clearly true, based on the 2018 election demographics.

                  1. You’re a liar and a moron.

            2. Perhaps conservatives such as Krayt will someday recognize the issue presented by ‘I wish all of the bigots weren’t on my side . . . . gee, I wonder why all of the bigots are on my side?”

              1. You realize that without the white men you hate, America collapses, right?

                1. “One of these men might save your life one of these days.”

                  “Then again, maybe one of us won’t.”

            3. Krayt, with all due respect, any discussion of immigration without an acknowledgement that intelligence, ability to assimilate, and propensity for crime and disorder is *not* evenly distributed among the races is a waste of time.

  17. ol·i·gar·chy
    noun
    a small group of people having control of a country, organization, or institution.

    1. Like the Supreme Court deciding to invalidate the vote and give the Presidency to who they want?

  18. Just look at the incompetents and crazies that Trump has nominated for the Federal Open Markets Committee in recent years, and imagine the lawyer-equivalents getting appointed to the Federal bench. In both cases, that didn’t happen because of Mitch McConnell of all people. Things could get a lot worse…

    1. Is the Shelton nomination dead?

    2. Yeah, Janet Yellen is SO much better. Because obviously, the way to fix America’s economic problems is to print trillions for Jewish bankers on Wall Street.

      1. Jewish bankers

        Only a matter of time before your racism and sexism included everyone’s favorite bigotry.

        1. At the Volokh Conspiracy, the bigotry is never very far from the surface.

          ‘Don’t blame us for the popularly of our movement conservative blog among racists, gay-bashers, Muslim-haters, misogynists, immigrant-bashers, disaffected clingers, Proud Boys . . . ‘

        2. Mnuchin, Bernanke, Greenspan, Yellen. Notice a pattern here? Why is this 2% minority constantly in power in these positions?

  19. David French highlights how conservative judges have stymied Trump’s bogus attempts to overturn the election

    Bogus? I thought they were real attempts.

    1. It’s far from clear to me that Trump actually wants to remain in office for another four years.

    2. If you recognize them as serious attempts, then you’re faced with the simple fact that President Trump attempted/is attempting a coup, and that the vast majority of elected Republicans showed no problem with standing to the side and letting that happen, when they didn’t outright help him.

      If you don’t recognize them as serious attempts, you can avoid with that realization, and don’t have to own-up to your elected officials being chill with a coup attempt.

  20. Principles, schminciples. If you want a chance to win a bad call from the ump, you have to at least look like you beat the throw to second. As everyone has seen, Trump looks like the throw beat him, by at least two steps. That’s why not even right wing judges buy into outlandish claims that Trump beat the throw. Principles have nothing to do with it.

  21. I feel relieved that the Republican Party’s judges will never indeed become a partisan voting block. Because if David French is warning it might happen, then certainly it has almost 0% chance of happening.

  22. Three of seven Wisconsin Supreme Court justices seemed ready to throw out thousands of ballots cast in good-faith reliance on officials’ guidance, and to do so just in two Democratic-leaning counties while keeping similarly-cast ballots elsewhere. So this praise of conservative judges seems premature…

    1. For both sides, which pick and choose the level of respect they give for these principles, depending on election year, state, or even county:

      1. Changing the rules of counting after the election, to help your guy.

      2. Changing same right before it.

      3. Changing it through courts, even though the state legislature had time to ponder those changes, and consciously rejected them.

      And the grand daddy of them all: All votes of The People must be counted.

    2. The actual ruling.

      It seems unambiguous that more than one county election official directed citizens to perjure themselves on election documents, and to fail to comply with election requirements.

      This ruling fits well with the general principle I’ve anticipated: Trump can only prevail in these challenges where he gets no meaningful remedy.

      But at least the ruling should foreclose this particular abuse going forward, and prevent the fraudulent assertions of indefinite confinement from resulting in automatic, ID free absentee voting going forward.

      1. Brett, you’re doing it again, where you autistically pretend that laws (including constitutional provisions) have one exact meaning that just happens to be the one you prefer, and therefore anyone who interprets it differently meaning is acting in bad faith. Nobody directed anyone to perjure himself.

        Two county clerks posted online an interpretation of one provision of a statute. Within a week, the court ruled that this interpretation was incorrect, and that announcement was removed and corrected. (This was all in March, and had nothing to do with the general election.) Trump did not “prevail” on this challenge at all; it was unanimously rejected.

    3. “and to do so just in two Democratic-leaning counties while keeping similarly-cast ballots elsewhere.”

      Well, that was because the two Democratic leaning county officials directed people to break the law, and officials in other counties… didn’t.

  23. Man, it must suck to be a conservative.

    When’s the last time you guys were happy, 1860?

    1. Actually, I’m happy most of the time.

      Just not about politics.

      1. Dude, you can’t be in proximity to gay people without flipping out, and seeing as we’re everywhere…

        1. I’m just hoping that one day a more virulent strain appears that PrEP doesn’t work against

          1. Unless Aktenberg78 is Brett’s sock pocket, this response seems misplaced.

  24. Ilya’s not so closet no-Trump allegiance is showing again. Endorsing David French.

  25. If there is one thing the fans of a faux libertarian blog can’t abide, it’s a libertarian Conspirator.

    Luckily for them, Conspiracy fans don’t have to worry about anyone other than Prof. Somin.

  26. Well, this post of Ilya’s has really aged well:

    The big picture on Trump and the Courts: Why constitutional originalists should be #NeverTrump all the way

    He might want to add an after-note.

    1. A few more restrictions here, a few more there, and it’ll be just like at home for Ilya.

      1. So often people flee a problem, and then, in utter incomprehension of the actual cause of the problem, recreate it in their refuge. It’s so common it has become a cliche.

        1. Yes. Witness Arizona, Georgia, North Carolina, Florida, Texas, Colorado, Nevada, et al.

  27. Conservative judges, as expected, chose to judge on principles. Lefties clutching their pearls after much speculation that conservative judges will behave like lefty judges, and choose principals over principles, absolutely mystified.

    Dog bites man, news at 11.

    1. Conservatives call conservative judges traitors after judges judge IAW law and not on psychotic theories.

      But that’s not news anymore.

  28. ” In the Bostock case, Trump appointee Neil Gorsuch ..wrote a path-breaking opinion holding that Title VII of the Civil Rights Act of 1964 bans employment discrimination on the basis of sexual orientation—a result much hated by both the Trump administration and social conservatives generally. ”

    You can be a An-Cap like me and despise that decision. Gorsuch rewrote the law to support modern sensibilities that the Legislature that actually wrote the statute never had. Better SCOTUS ruled that the proper place to change the law is Congress, whether it cares to or not…

  29. The election was blatantly fraudulent. It’s in keeping with the nature of ‘Reason” that the “libertarian’ writers here would throw in their lot with with fascists and communists.

    Here is a document by an international body laying out some guidelines for establishing whether elections are free and fair. Very every las tone was violated in the recent US “election”, which resembled nothing so much as an election in the old Soviet Union.

    https://www.ipu.org/our-impact/strong-parliaments/setting-standards/declaration-criteria-free-and-fair-elections

    Everyone individually and together with others has the right:

    To express political opinions without interference;
    To seek, receive and impart information and to make an informed choice;
    To move freely within the country in order to campaign for election;
    To campaign on an equal basis with other political parties, including the party forming the existing government.

    Every candidate for election and every political party shall have an equal opportunity of access to the media, particularly the mass communications media, in order to put forward their political views.

    States should take all necessary and appropriate measures to ensure that the principle of the secret ballot is respected, and that voters are able to cast their ballots freely, without fear or intimidation.

    Furthermore, State authorities should ensure that the ballot is conducted so as to avoid fraud or other illegality, that the security and the integrity of the process is maintained, and that ballot counting is undertaken by trained personnel, subject to monitoring and/or impartial verification.

    States should take all necessary and appropriate measures to ensure the transparency of the entire electoral process including, for example, through the presence of party agents and duly accredited observers.

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