"Reviewing The Three Trump Appointees: Ex Ante and Ex Post"

My new essay will be published in the inaugural issue of the Texas A&M Journal of Law & Civil Governance.

In July, I published a series of posts evaluating Justices Gorsuch, Kavanaugh, and Barrett. I've expanded those posts into an essay, which will be published in the inaugural issue of the Texas A&M Journal of Law & Civil Governance. My article is titled, Reviewing The Three Trump Appointees: Ex Ante and Ex Post. I am honored to serve on the Board of Advisors for this exciting new journal.

Here is the abstract:

Justice Neil Gorsuch has now been on the Supreme Court for six years; Justice Brett Kavanaugh for five years; and Justice Amy Coney Barrett for three years. By virtually any measure, today's Supreme Court is the most conservative bench in modern history. But it could have been far, far worse for progressives if President Trump had actually nominated Justices in the mold of Justices Scalia, Thomas, and Alito.

This essay, written for the inaugural issue of the Texas A&M Journal of Law & Civil Governance, provides a prospective and retrospective analysis of the three Trump appointees. Part I begins with cases on the Supreme Court's merits docket. Part II turns to the Supreme Court's emergency docket. Part III considers what could have been: denials of petitions for writs of certiorari. Part IV will revisit the records of these three justices ex ante and ex post. Very little has surprised me about the Supreme Court over the past several years.

I had to make a few last-minute changes in light of the Dobbs bombshell. More on that story shortly.

Comments

[Rev. Arthur L. Kirkland]

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Texas A&M Journal of Law & Civil Governance

Another separatist, partisan publication by and for legal academia's disaffected right-wing fringe, the culture war's losers and rejects, and conservatives on the wrong side of history?

[Scooter]

LOL Meat.

An advocate for the party that believes men can become women by uttering magic phrases has no business referring to their Betters as a "Culture War Loser".

LMFAO.

[Rev. Arthur L. Kirkland]

I generally prefer culture war casualties as a descriptor of conservatives. It has a better ring to it.

[AmosArch]

"today's Supreme Court is the most conservative bench in modern history"

I'm sure the Taft Court was raring at the bit to institute transgender bathrooms and unlimited 100% government funded abortion clinics every block until birth.

[Dr. Ed 2]

What would happened if Robert Bork had been confirmed?

And would there have been 51 votes under the rules of today?
Kavanaugh would have been defeated under the old rules...

[Sam Bankman-Fried]

McConnell appointees. Trump appointed Tillerson, Rodentstain, Wray, and Bolton.

[Brett Bellmore]

Trump nominated people from a short list generated by the Federalist society. And the federalist society wasn't interested in fire breathing conservatives.

But I really, seriously doubt that Trump would have come up with better nominees working outside that list.

[David Nieporent]

Leonard Leo is not the Federalist Society, and Leonard Leo and the Federalist Society are fine with conservative justices. What they weren't looking for was politicians rather than judges.

[Josh R]

Apparently, a conservative justice is one who advances conservative policy preferences. Blackman wants justices to legislate from the bench.

[Rev. Arthur L. Kirkland]

Blackman wants a lot of things.

In the long run, I expect him to get none of them. Getting routed in a culture war has consequences.

[CommentMonkey]

The article suffers from the same inaccuracies as the posts from which it was apparently drawn. He claims that in 2009, then-Judge Gorsuch "joined an unpublished Ninth Circuit panel decision that ruled for a transgender plaintiff." That is flat-out false. The case (Kastl) involved summary judgment, entered against a transgender plaintiff, and affirmed by the panel in a three-page unpublished decision. The transgender plaintiff lost. Prof. Blackman's apparent quarrel with Gorsuch is that, as an out-of-circuit district judge sitting by designation, he didn't dissent from the panel's interpretation of a previous Ninth Circuit case, even though the issue would not have changed the outcome of the case they decided. If any lower court judge sitting by designation has ever written separately to scold the panel majority about its interpretation of prior Circuit law in dicta, I would love to see it. Perhaps it's not too late to add a footnote to the article citing such a case.

Likewise, he repeats a mischaracterization of St. Joan Antida High School Inc. v. Milwaukee Public School District, decided by then-Judge Barrett when she was on the Seventh Circuit. Contra Prof. Blackman, the case involved whether private schools were being discriminated against vis-a-vis public schools regarding publicly-subsidized bussing. The plaintiff happened to be a Catholic school, but no one, including dissenting Judge Sykes, alleged that religious animus was at play in the school district's policy of treating public and private schools differently. Nonetheless, the article opines that by joining an opinion favoring the defendant, Barrett "favored hesitancy in the face of alleged religious discrimination." That is objectively false.

Even if there was some value in these retrospective ideological purity tests for sitting Supreme Court Justices (there isn't), at least strive for some level of accuracy.