Justice Sotomayor's Flawed History To Promote The Myth of Judicial Supremacy

She still does not understand who decides.

The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

Supreme Court opinions are not included in that list. Cooper v. Aaron, however, elevated decisions of the Court to the "supreme Law of the Land." Regrettably, three members of the Supreme Court embrace this myth of judicial supremacy.

In Whole Woman's Health v. Jackson, Justice Sotomayor wrote a partial-dissent that was joined by Justices Breyer and Kagan. She committed the cardinal sin of judicial supremacy--conflating actual federal law with a decision of the Supreme Court. Even worse, she distorted the history leading up the Civil War to perpetuate this myth. All in the span of a paragraph.

[S.B. 8] is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to "veto" or "nullif[y]" any federal law with which they disagreed. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843). Lest the parallel be lost on the Court, analogous sentiments were expressed in this case's companion: "The Supreme Court's interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions." Reply Brief for Intervenors in No. 21–50949 (CA5), p. 4.  The Nation fought a Civil War over that proposition, but Calhoun's theories were not extinguished. 

Calhoun asserted the power to nullify federal statutes--acts of Congress that are, pursuant to the Supremacy Clause, the supreme law of the land. Texas has not purported the power to nullify any federal statute. Justice Sotomayor derisively quotes from Jonathan Mitchell's brief. But this genius is emphatically correct: Roe v. Wade and related precedents are not part of the supreme law of the land. They are merely opinions of the Justices who wrote them--and lousy opinions at that.

The United States did not fight a Civil War over the theory of judicial supremacy. But judicial supremacy was a contributor to the Civil War. Of course, I speak of Dred Scott v. Sandford. Chief Justice Taney recognized a new constitutional right based on substantive due process in order to resolve a controversial social debate by placing it beyond the power of the elected branches. Sound familiar? In Casey, Justice Scalia directly equated Roe and Dred Scott.

It is no more realistic for us in this case, than it was for [Chief Justice Taney] in [Dred Scott], to think that an issue of the sort they both involved an issue involving life and death, freedom and subjugation—can be "speedily and finally settled" by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S.Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent that binds particular parties, but do not give it any more effect than the law requires.

I will repeat a refrain from my post on Dobbs. Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

Comments

[Jimmy the Dane]

Does this level of legal scholarship really surprise you coming from a liberal? These people spend their lives in an echo chamber completely separated from reality.

[Davedave]

You think Profuse Blackman is a liberal?!

[Sarcastr0]

Did you even bother to read the OP, or just saw the headline and got pretty excited to post how much you hate liberals?

[Thomas Joseph]

Jimmy the Dane you neglected to read the article. The opinions expressed within are certainly not liberal.

[GKHoffman]

I believe the liberal he refers to is Sotomayor, not Blackman.

[wolfefan]

I thought that was pretty obvious. When I read the initial responses to JTD I was quite confused.

[LawTalkingGuy]

Yes. Only liberals have problems with echo chambers.

[Intelligent Mr Toad]

Well, I'm not an expert on Dred Scott. But wasn't it overturned by amending the Constitution? If it was, than why is it relevant to the current proposal to overturn a long-standing precedent, by raw fiat-power wielded by justices who were selected and appointed principally for that purpose?

If Roe v. Wade and Casey v. PP are as wrong as you say, it should be easy to persuade enough people in the country to overturn it the Constitutional way, the Dred Scott way, by amending the Constitution. I mean, why should we have a gaggle of Justices setting national policy?

[Gandydancer]

I didn't take a Constitutional amendment to inflict Roe on us. so the demand that its foes surmount a higher barrier to rid us of it is obviously dishonest.

[Stephen Lathrop]

The power to say what the law is . . . is gone? This will be great news for would-be gun controllers.

[SimonP]

Josh likes to distinguish between rights that are "expressly" protected by the Constitution - as real rights - and rights that have only been somehow inferred from the Constitution.

While this distinction makes no sense, Kavanaugh, for one, seems to be keen on it, as when he spoke of the Constitution being "neutral" on the question of abortion. If textual "neutrality" now determines whether the Constitution protects our freedoms, we're about to lose a lot more than just abortion rights.

[Stephen Lathrop]

Or, it didn't take a constitutional amendment to inflict Heller on us, . . . etc.

[GKHoffman]

Of course it did: specifically, the Second.

[Stephen Lathrop]

GKHoffman, I'm pretty sure the Second said exactly the same thing pre-Heller as it does post-Heller. Perhaps you should try again, aiming for cogency.

[benji]

He was making a joke.

In any case, Heller isn't the change you think it is. Miller had already recognized an individual right (since there's no other way to properly read the Second) but qualified its scope, Heller eliminated the qualification since a plain reading of the text makes clear there's no qualification of the right.

[Intelligent Mr Toad]

No sir. A plain reading of the text makes clear that there IS a qualification of the right. As in:

"The weather being nasty, you should wear your galoshes when you go out."

The first clause obviously indicates a condition on the circumstances in which the second clause should apply: only so long as the weather remains nasty.

[Ridgeway]

More like, "The weather sometimes being nasty, the right of the people to keep and wear raincoats and galoshes shall not be infringed."

Does that mean that one cannot wear a raincoat and/or galoshes on a nice day? Or that during dry spells, the govt can take your raingear away?

[Seamus]

What are you saying? That the right of the people to keep and bear arms *can* be infringed if ever a well-regulated militia ceases to be necessary to the security of a free state?

[Stephen Lathrop]

In general, arguments in the form, "Get an amendment," are today best understood as taunts from interested parties momentarily enjoying the fruits of constitutional malfunction.

[Don Nico]

Spoken like a true partisan hack

[santamonica811]

...said critics, to 99.993% of everything Blackman has ever posted here.

[Stephen Lathrop]

Don Nico, please take care that your good manners do not deteriorate.

[bernard11]

I think it's fair to say that passing an amendment without truly overwhelming public support - probably at least 90% - is pretty close to impossible.

Note that the 20 least populous states contain just a bit more than 10% of the population of the country.

[Stephen Lathrop]

Bernard, note however that in the context of ratification the actual number of people needed to block an amendment is far, far, smaller than 10% of the national population. Those who actually matter include only those numbered among the majority in the chambers where ratification voting is done—whether state legislatures or conventions. You could throw in the losing minority members if you wanted to, and you would not come up with an appreciable fraction of 1% of the American people. With ratification done by conventions instead of by state legislatures, if convention delegates stood for election, that number might get larger, but still remain pitifully small—far below 10%.

[Brett Bellmore]

"Note that the 20 least populous states contain just a bit more than 10% of the population of the country."

Note that no failed amendment has ever, in the history of the country, failed due to the 20 least populous states, and only the 20 least populous states, refusing to ratify.

Indeed, as I once calculated, the states that ratified, and rejected, the ERA, were as close to the same fraction of the population as they were a fraction of the whole number of states, as you could reasonably ask.

And, let's suppose that the 20 smallest states, and only the 20 smallest states, rejected an amendment. We'd have to ask why that happened, when some of the small states are conservative, and some liberal. Perhaps the amendment targeted small states for some harm?

[bernard11]

Note that no failed amendment has ever, in the history of the country, failed due to the 20 least populous states, and only the 20 least populous states, refusing to ratify.

Don't be an idiot, Brett. I obviously wasn't claiming that that happened, or was likely to happen. I was just illustrating that states with small shares of the population can block an amendment.

To take a different example, the 13 states that went most heavily for Trump in 2020 have about 12% of the population.

[Number 2]

“ If it was, than why is it relevant to the current proposal to overturn a long-standing precedent, by raw fiat-power wielded by justices who were selected and appointed principally for that purpose?”

I assume you are referring to the progressive judges appointed by FDR for the express purpose of overruling long-standing precedent regarding freedom of contract, economic liberties, and substantive due process. Or was that different?

[Stepped Reckoner]

Not only are you not an expert on Dred Scott, you apparently haven't seen Steven Spielberg's little movie about these events. Before Dred Scott there were decades of debate over whether the Constitution protected slavery or banned slavery. Many, including admirable people such as Lysander Spooner, passionately argued the Constitution banned slavery, while other, almost as clever, violently-minded people like Vice President Calhoun argued the reverse. The problem was that the easiest answer seemed to be the one in the middle: the Constitution neither banned nor protected slavery.

So with the Civil War won by the North, if the post-war Supreme Court revisited Dred Scott what was it going to do? The argument that the Court should "overturn" Dred Scott by finding slavery unconstitutional was a stretch. Few thought the Court were sure to do it. And even if it did, that might just reverse the problem, and leave a bunch of defeated Southerners calling for decades for the shaky _new_ decision banning slavery to be overturned. (I suspect this would not actually have happened much, but hindsight is easy and at the time it was less clear.) The much more likely result was that the new Justices, if left to their own devices to revisit Dred Scott, would "overturn" Dred Scott by issuing a neutral decision returning the question of slavery to the States. Since the country had just fought a war over the issue, this was, to say the least, not welcomed as a solution. So the abolitionists who controlled the victorious Northern government successfully sponsored a constitutional amendment to settle the issue once and for all and explicitly ban (well, except for prisoners) slavery in the Constitutional text.

Needless to say, different with Roe. True, we again have a shaky, bitterly controversial, loved/hated Supreme Court decision that rules that the unwritten principles of the Constitution take a controversial issue outside the purview of the States. But we don't have an existential National crisis just ended, 600,000 adult men recently shot and blown up all over the country, a dozen State capitals in smoking ruins, a bunch of new Justices AND a bunch of newly-installed abolitionist carpetbagger governments in defeated states ready to vote for a constitutional amendment. The degree of acceptance of a "neutral" decision overturning Roe by returning the decision to the States might be very different than at the time of Dred Scott.

That's not to say such a "neutrally return it to the States" decision on abortion is a good or a bad idea, politically, or the right or the wrong decision, legally. It's just the different background facts we're facing.

[Frank Drackman]

and ironically Abortion disproportionately kills Black Babies, I mean, results in less Black Babies being born(because dead Black Babies can't be born) almost like it's a feature, not a bug!

[Eric VonSalzen]

When Roe came down I knew several "liberal" folks who approved of the decision because it would slow the growth of the "colored" population.

[Seamus]

The argument that the Court should "overturn" Dred Scott by finding slavery unconstitutional was a stretch.

Yes, because the constitution *was* neutral with regard to slavery (with certain specific exceptions, including most notably the fugitive slave clause and the provision (long obsolete by the time of the Civil War) barring Congress from prohibiting the external slave trade until 1808).

[Doug Heffernan]

It seems that the blackman kid would emphatically and enthusiastically recommend that the democrats should act without hesitation to curb judicial power and the supreme court’s claim to judicial supremacy.

The report from pcscotus has been submitted to biden. Rather than quibble about packing or term limits, just strip scotus of power instead. The blackman kid would instantly become biden's biggest fan and cheerleader, much like the blackman kid was gushing about jamelle bouie's opinion piece about this idea last year; https://archive.md/RYOzY

Then once trump regains his rightful throne in a few years, there will be nothing stopping him! How great will that be! And in the meantime, it will put the kibosh on the administrative state and allow the flourishing of 50 wonderful laboratories of subjective experimentation in intractable constitutional interpretation. That is bound to turn out just fantastic!

[Davedave]

Dear god. Just accept you're in the wrong, Josh. That's a better option than becoming a traitor, which is the road you're going down here. Arguing the rule of law is a bad thing is puerile and disgraceful from anyone, but from a law professor? It's self-deluding sophistry at best.

[Kazinski]

The rule of law means, if it means anything, is that the people through their representatives make the law, and the courts faithfully apply it.

It doesn't mean that the courts are the law and can do whatever they want. That's how the former USSR worked, and China works now, the black letter law says one thing, the courts can say the absolute opposite, and that's it.

[dwb68]

So whatever law "the people through their representatives" enact is good law? That it?

[Twindad46]

No, but if it's bad law the people can elect new representatives to amend or repeal it. We cannot say the same thing about the Supreme Court.

[dwb68]

Can they? What if the law if to kill dissenters?

[m4019597]

What shouldn’t happen is a court pretending it has the authority to stop a law that’s constitutional.

If it’s constitutional but unpopular, we the people can have a law changed, refuse to obey, or stop anyone who tries to enforce it.

But the courts are not there to stop laws. They exist solely to apply the laws and decide constitutionality. Period.

[bernard11]

What shouldn’t happen is a court pretending it has the authority to stop a law that’s constitutional.

Begging the question.

The argument is over whether a law is constitutional or not. And guess what, the fact that you are confident you know doesn't make you right.

[MatthewSlyfield]

"What shouldn’t happen is a court pretending it has the authority to stop a law that’s constitutional."

When has any US federal court done such a thing?

Cite specific cases.

And no, the court saying a law is unconstitutional when you think it is does not mean that the court is "pretending it has the authority to stop a law that’s constitutional."

[m4019597]

You’re of the mistaken notion that cases decide facts and that precedent should matter. It should not.

[MatthewSlyfield]

Whether precedent should matter or not is not relevant to your claim about the courts "pretending" they have the power to overturn constitutional laws.

Of course cases decide facts, at least when the fact at issue is something about how the courts decide cases.

[Sarcastr0]

You appear to have left off judicial review and the bill of rights from your laying out what the law is.

[benji]

I don't think the courts in China, or the former Soviet Union, do much establishing of what the law is like you say. That's pretty much up to the upper echelons of The Party.

Though I would also note that in both cases they do the fig leaf legitimacy of having an "elected" legislature enact the laws.

[Adabsurdum]

Maybe at the South Texas College of Law this passes as scholarship. Wasn't he previously at the Scalia School of Law? This garbage wouldn't pass at my school. Mention Lincoln, Slavery, Dredd Scott, and then use that to insult a liberal justice. Try to say how substantive due process securing a right is similar to the (long overruled) requirement have slaves returned to a Confederate. And then bam, perfect for publication on crazy right wing Twitter. All shock and no substance.

Should someone tell this blogger that Dredd Scott was decided before the 14th amendment and the substantive due process doctrine? It was based upon the takings clause in light of the Missouri Compromise. 14th amendment was made in response to the deprivation (not granting) of rights of African Americans.

[Ridgeway]

Unlike the more famous Judge Dredd of Stallone fame, Dred Scott of Supreme Court fame had only two Ds in his name, and they weren't in a row.

Prof. Blackman is very easy to criticize. Making yourself out to be a not-very-bright law student makes it quite a bit harder.

[Seamus]

Actually, Dred Scott was one of the first judicial decisions (if not the very first) grounded on substantive due process.

[dwb68]

The law of the land is whatever 5 or more Justices say it it. They write, and lower courts follow. That's not a myth, thats reality. Today and for the last 40 years abortion is been a right because the Supreme Court said so. In July it still may be, or maybe not. We will see. Lots of wrong decisions and incorrect interpretations are still the law. The list is long, seemingly endless. You may not like any of these things, but its reality, and if I violate these laws I get prosecuted and sent to jail. And when nominees to the Supreme Court seek to correct flaws, they are changing the law. Even the notion of changing the law by overruling opinions relies on the notion of Judicial Supremacy, the Supreme Court deciding the law. You can deny it, dislike it, rail against it, but thats how the system has worked for 250 years. Now, perhaps you object that the Supreme COurt is not the only decider of the law. That is correct - three branches of government each get a vote as to what the law is. But if Congress passes a "law," say to put me in jail for seditious writings on 8chan, the DOJ prosecutes me, and the Supreme Court decides it does not violate the First Amendment, I am in jail for life while the academic pinheads rail against Judicial Supremacy.

[dwb68]

Side note: Sotomayor's opinion was over the top and sharks were definitely jumped. I am putting her on resignation watch. Shes become the crazy cat lady at Thanksgiving that no one listens to

[Don Nico]

"Shes become the crazy cat lady at Thanksgiving that no one listens to"
Love that comment. Bravo!

[Rev. Arthur L. Kirkland]

What causes you to prefer a gay-bashing, nonsense-drenched handmaiden, Don Nico? Is it your conservative bigotry, your gullibility, your disaffectedness, or something else?

The answer does not affect the predictable fate of your intolerant, stale, superstitious preferences in the reality-based world, of course.

[Sarcastr0]

Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

LOL.

[loki13]

JB is a typical republican.

Happy to invoke Lincoln for everything.

Well, happy to invoke him to own the libs. Really unhappy for starting "the war against the states" and that whole "freeing the blacks." He even did it without compensation! Such a commie.

[Kleppe]

Nah, you're a liar. Josh has never said anything remotely close to that.

[Frank Drackman]

"Emancipation Proclamation" didn;t free a single black, asl General Grant's Slave(s)

[bernard11]

"Emancipation Proclamation" didn;t free a single black

Actually, it did.

As for Grant, it didn't free Grant's one slave, because Grant himself freed the man before the war.

But tell us again about what a noble fellow Lee was.

[J Norton 2]

"Roe v. Wade and related precedents are not part of the supreme law of the land. They are merely opinions of the Justices who wrote them--and lousy opinions at that."

Prof. Blackman, do I understand you correctly to be claiming that a decision of the Supreme Court interpreting the U.S. Constitution is not the law of the land? That it is merely an opinion which the states are free to ignore if they consider it "lousy"? That is not my understanding of the meaning Marbury v. Madison as it has been applied since 1803.

Or are you suggesting that Supreme Court constitutional precedent need not be overruled by the Supreme Court? That it and lower courts can simply ignore it?

Both of these appear to me to be very lawless approaches.

[JoeM64]

"Prof. Blackman, do I understand you correctly to be claiming that a decision of the Supreme Court interpreting the U.S. Constitution is not the law of the land? That it is merely an opinion which the states are free to ignore if they consider it "lousy"? That is not my understanding of the meaning Marbury v. Madison as it has been applied since 1803."

Yes you understand him correctly. Roe v. Wade interprets the constitution to find the right in the constitution. Not in the opinion. SCOTUS, in Roe v. Wade, said "we find this right in the constitution".

Opponents of Roe v. Wade say that the court incorrectly interpreted the constitution.

[bernard11]

Opponents of Roe v. Wade say that the court incorrectly interpreted the constitution.

It's one thing to say that. It's another to say it's not the law.

Congress gets things wrong all the time. That doesn't invalidate properly passed legislation.

[Seamus]

<blockquote?Prof. Blackman, do I understand you correctly to be claiming that a decision of the Supreme Court interpreting the U.S. Constitution is not the law of the land? That it is merely an opinion which the states are free to ignore if they consider it "lousy"?

The answer to this question can be found in Lincoln's First Inaugural Address:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

IOW, Dred Scott has not gained his freedom, because the Supreme Court ruled against him in specific litigation involving him. But Congress and the president are free to (and should) act as if the Missouri Compromise *did* in fact abolish slavery in the territories north of the 36°30' line, and to recognize black Ameicans as citizens, notwithstanding the Court's decision in that case.

[eyeroller]

Roe v. Wade and related precedents are not part of the supreme law of the land.

OK, but they state what the supreme law of the land is.

What a goofball.

[Rev. Arthur L. Kirkland]

" What a goofball. "

Is that any way to refer to the future of conservative legal academia; Prof. Volokh's hand-picked choice to lead a White, male, right-wing blog into a new generation; a man with a 133-page resume; and the most prominent member of one of the worst law faculties in all of America?

(Another from Keith and Willie, demonstrating that country music need not be the drawlin', twangin', downscale wasteland it has become.)

[m4019597]

This is the kind of stupid article that comes out in the middle of the night.

Obviously, Sotomayor didn’t write the opinion. She’s too stupid.

Ever hear her speak? She’s the kind of fraud who failed upward based on race and gender.

This opinion was written by one of her affirmative action hires and then she signed it. It is the work product of a younger lawyer than Sotomayor, reflective of the trendy anti-American mythos that pervades law schools today.

[Rev. Arthur L. Kirkland]

These are your peeps, Conspirators.

This is why mainstream law schools regret hiring you and should attempt to avoid recurrence of that mistake.

[SimonP]

Josh - this is yet another example of where your lack of any rigorous theory of law or legal philosophical training gets you into trouble. You make this tired, polemical distinction between "federal law" and "whatever some number of justices held [in a binding judicial precedent interpreting federal law," but it falls apart upon any kind of serious consideration.

Where does, "judge's don't decide, the legislature/constitutional drafters do" get us, with respect to the whole SB 8 strategy? How many Supreme Court precedents do you have to rely on, in order to conclude that no one can bring a pre-enforcement challenge to the law? We're talking about a whole series of decisions glossing on the nature of the judicial power, inferences drawn from our constitutional structure, and even prudential doctrines with zero basis in the Constitution or any legislative enactment.

Once one understands that the whole SB 8 scheme succeeds only because of the supremacy of Supreme Court decisions - which the Supreme Court has just affirmed - your whole complaint about Sotomayor collapses to just another juvenile rant for the VC's most oblivious troll.

[Justice Barrett]

Bingo

[bernard11]

Josh quotes Scalia:

Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

Huh? So never mind the Constitution. If an issue arouses "deep passions" it must be decided according to "regional differences?"

How would that have worked with civil rights?

I'm not sure this is something Scalia's admirers ought to be quoting.

[Ghost of Patrick Henry]

Civil Rights were decided by Congress, through legislation, over great kicking and screaming of the Democrat party. It was the Supreme Court that caused the Civil War with Dred Scott.

[bernard11]

Brown? Bailey v. Patterson, Loving?, Griggs vs. Duke Power?

And even when Congress passed a civil rights law, it was an "imposition of a rigid national rule instead of allowing for regional differences," which Scalia professes to hate.

[David Nieporent]

Scalia was of course not saying "Never mind the Constitution." He didn't think the Constitution says anything at about abortion. He was just responding to an argument by the plurality that the Court speaking had resolved the national debate.

[LawTalkingGuy]

Again, Josh Blackman is a prominent supporter of cases, ideas, and people who advocate for judicial intervention in a wide swath of both state and federal policy, including extremely traditional areas of state policy making, like public health.

He was a key proponent of a lawsuit that tried to destroy a democratically enacted law. This lawsuit was only thought up when it was clear Congress didn’t have the votes to repeal it. He’s a judicial supremacist to the maximum extent possible.

[Jason Cavanaugh]

For a fun thought experiment: Imagine our country somehow still exists in 20 years, and Blackman is sitting before Congress awaiting a confirmation hearing for his lusted-after SCOTUS appointment.

Then imagine someone reading Josh's idiot manifesto to him in court and asking him to explain himself.

Sadly that will never happen, because nobody would be dumb enough to hire Josh to arbitrate a dispute over the price of pancakes at a Denny's, let alone to a position where he'd issue actual legal opinions.

[LawTalkingGuy]

Unfortunately I disagree with the last thought. Josh is the perfect candidate to become an Article III district court judge whose sole function is to permit legally dubious Republican policies to proceed and to issue injunctions against anything the is even vaguely progressive. The kind of guy who’d issue a nationwide injunction on the thinnest of pretexts against Medicare without a second thought.

[Titus PUllo]

Getting rid of Medicare would be a good first step in lowering the cost of healthcare for all

[Frank Drackman]

Egad! Obama-(don't) care has made afordable Health insurance available to everyone! You can even keep your doctor if you like him(he doesn;t have to keep you)

[David Nieporent]

I cannot fathom that Prof. Blackman would have the slightest scintilla of interest in a a district judgeship. He's not really a detail guy; he's a bomb thrower. District court judges spend the vast majority of their time resolving petty discovery disputes about mundane contractual issues.

[LawTalkingGuy]

Lack of true interest or ability to be a district court judge has not stopped many ambitious people in the past (give or take a Matthew Peterson or Brett Talley).

[David Nieporent]

Peterson and Talley were attorneys, not professors. A lifetime judicial appointment is almost always a good deal for an attorney in private practice (unless the sole concern is money, and even then, for most attorneys a federal judgeship is a step up). The same calculus does not apply to a professor. Even at South Texas College of Law.

[Ridgeway]

I don't buy this at all. True, Prof B would not want to be a District Court judge, but not because of discovery disputes and other mundane issues. He would avoid it, because it entails actually knowing and understanding sophisticated legal principles and applying them to complex facts.

[Stephen Lathrop]

You know, if you are the general manager running a right-trending legal blog, and you trade Orin Kerr for Josh Blackman, it could have a bad effect on your place in the standings.

[Titus PUllo]

Wait didn't Jefferson Davis point out nullification was being used by the Northern States as a rational for leaving? I don't get the left's distortion of the idea of nullification. Well I do but that isn't the point.

When both the authors of the Declaration of Independence and the Constitution argue that States have a right to nullify or perhaps more mildly interpose to stop the Federal Govt from acting outside it's legal authority, why is it debated. The SC is part of the Federal Govt, having the umpire on one team doesn't make sense. Judicial Review was always a very shaky concept and should be replaced by a super majority of States acting through their State legislatures to determine if a Federal law or SC decision is law or not.

[J Norton 2]

Aren't you sorry you weren't around in 1787? You could have tried to persuade the delegates to the convention to include your language in the Constitution. You weren't and they didn't.

[benji]

James Madison isn't the author of the Constitution.

[benji]

I mean, I like Madison. He was right about a lot of stuff, maybe even nullification. But he didn't write the Constitution by himself and he isn't the sole authority on everything it says.

[J Norton 2]

Idle conversations about such things as nullification can be amusing. Titus observes, "didn't Jefferson Davis point out nullification was being used by the Northern States as a rational for leaving?" I don't think Jefferson Davis had a reputation for being an expert on much of anything, but particularly constitutional law. But beyond this, northern states could not have used nullification "as a rational for leaving" since they never left the Union. Some people in some states in the north suggested this, but it was never acted on by any of them.

But the states of the Confederacy chose nullification and left the Union. The principle constitutional issues of the Civil War were slavery and nullification. These issues were resolved four years and 750,000 American deaths later, not in the Supreme Court, but on the battlefield.

We seem to have a very activist Supreme Court today, but I doubt that they will be inclined to overrule this precedent.

[ReaderY]

Exactly what you are saying exists. It’s called a constitutional amendment. A super-majority of states can clarify the constitutional text to overrule a specific Supreme Court ruling. The 11th Amendment did this.

[ReaderY]

One of Professor Blackman’s classic strategems is to conflate arguments - simply pretending that an argument about one thing is instead an argument about an entirely different thing that he finds it easier to defend. Have, in his own mind, drawn his enemy into his prefered territory, he then, in his own mind, swoops in for the kill.

This is a classic example. The two things Professor Blackman is conflating here is whether the Supreme Court gets to simply make up what it declares the constitution says, on the one hand, and whether it has the power to enforce the things that are in the constitution, on the other.

This case is entirely about the second thing. It’s about whether the Supreme Court gets to enforce what’s in the constitution against other branches and forms of government. It does. If a state reinstates slavery, for example, the Supreme Court has the power to overrule it, completely regardless of whatever machinations the state may come up with to keep ots slavery system out of federal court. If a state comes up with an airtight slavery system that under current precedent federal courts can’t touch, the Supreme Court gets to overrule current precedent to come up with a way to get rid of it. It absolutely has the power to do it.

I in general agree with Professor Blackman that the Supreme Court can’t simply make up rights on its own. And while I might disagree with him about certain matters, the text is by no means unambiguous, I agree that it doesn’t contain anything like what Roe says it contains.

But that’s totally besides the point here. The Supreme Court’s recent decisions are increasingly coming in the form of hypotheticals - if A is true, then B follows. Justice Roberts may have started the trend, but other Justices have increasingly taken to it. And the current decision is entirely about the first point, not at all about the second. If something, in this case Roe, is a constitutional right, can a state come up with a way to enable a scheme to evade it to avoid federal review? The answer to that, once again, is no. And it has to be no.

Both propositions, of course, can plausibly be labeled “Judicial Supremacy.” And this is what drives Professor Blackmaan’s sleight-of-hand. By arguing against the second proposition, and using the same phrase to describe both, Professor Blackman proceeds to conclude that he has defeated the first proposition. A can plausibly be called “Judicial Supremacy.” B can also plausibly be called “Judical Supremacy.” B is false. Therefore “Judicial Supremacy” is false. Therefore A is false. That’s pretty much Professor Blackman’s logic in a nutshell.

Most of me is terribly aghast at all this. It’s just so totally bogus. What are we, serious adults, doing sitting here on a blog that has in the past contained some very serious legal scholars making some very serious legal arguments on very serious legal issues of the day, and having to field and comment on arguments that are just this stupid?

But sadly, perhaps there is a reason why these sorts of arguments are here, and not just in the common thread. The main value as I see it is that arguments like this tend to reflect a certain kind of thinkimg that seems to be becoming increasingly prevalent and which we probably dare not ignore. It is an essentially authoritarian kind of thinking. If one knows one is right, the point is to win, and it doesn’t really matter very much what one says; the kind of intellectual argument where it’s possible for people to concede they’re wrong is for losers. The vigor of intellectual debate suffers well before the concentration camps start getting erected.

Perhaps this kind of argument is a sort of canary in the coal mine that that kind of thinking is among us.

So I will try to present an opposite tendency. Even if I agree with you on the ultimate policy on something for different reasons, if you use a really stupid argument to advance it, I will do my best to call you out on its stupidity.