See, I Told You So

One of my many thankless tasks is to criticize conservatives. In many regards, this work is more unpleasant than criticizing liberals. When I talk about people on the left, the blowback is predictable: liberals call me a partisan hack, while conservatives support me, or at least silent. But when I talk about people on the right, conservatives attack me as a turncoat, while liberals hold me up as a token to attack those they despite. Like I said, the task is thankless. At times, I feel like Cassandra: I saw troubles long ago, but others wouldn't listen. Now, they're listening.

With each passing day, Justice Barrett is demonstrating why she had no business being appointed to the Supreme Court. Indeed, she should have never been put on the "short list" before she decided a single case. And I'm not sure why she leapfrogged over so many other qualified candidates in Indiana for the Seventh Circuit seat. Justice Kavanaugh was described as the most qualified Supreme Court nominee in modern history. Justice Barrett, by that standard, would be the least qualified Supreme Court nominee in modern history. Everything is laid out here. If the goal was to give Chief Justice Roberts a wing-woman, mission accomplished.

There is a constant drumbeat urging Justice Thomas and Justice Alito to retire. I think those calls are unlikely to succeed for many reasons, but also they are misguided. Thomas and Alito are still making important jurisprudential contributions to the Court. By contrast, Justice Barrett is not. I struggle to count five Barrett opinions that are noteworthy. And when Barrett casts an important vote, her actual bottom line is murky. We saw this in the Trump immunity case, yesterday in San Francisco v. EPA, and in today's USAID ruling (more on that confusing case later). Justice Barrett tells us to read the opinion, but when we read what she writes, we are left confused.

I'll lay down the marker. I think Justice Barrett should step down. I don't think she actually enjoys this job. I can't imagine her family actually prefers the swamp over South Bend. I don't think she enjoys being the focus of the political storm. And I am fairly confident she does not like President Trump. Look at this video! Justice Alito learned his lesson about making facial expressions at the Joint Session, but Justice Barrett has not.

Maybe Amy Coney Barrett does have a soul pic.twitter.com/kICrskHf8c

— ian (@Boatstory1) March 5, 2025

The next four years will be a never-ending series of balancing acts to avoid ruling for Trump. And to what end?

And if Barrett steps down and is replaced by someone in the mold of Justice Thomas or Alito, then Chief Justice Roberts will be sidelined for the foreseeable future. His shenanigans only work when he has a fifth vote. Roberts may see fit to step down as well. I don't think he really wants to be here either. Look at how quickly he scurried away after Trump talked to him.

"Thank you again. Thank you again. Won't forget," President Trump says as he shakes the hand of Supreme Court Justice John Roberts. pic.twitter.com/uFrvem6rUj

— Tom Dreisbach (@TomDreisbach) March 5, 2025

Cue the howls. I'm used to it.

Comments

[David Nieporent]

There are some people who think Blackman doesn't read the comments. This shows how implausible that is. Now, to be sure, it shows that he doesn't understand the comments, but he is far too narcissistic not to read them.

[hobie]

Blackman is one of the most immature, priggish individuals I've encountered

[Don Nico]

Given what he wrote in this OP, you comment is actually mild praise for him.

[Frank Drackman]

don't hold back Hobie-Stank, he's a "Hill Billy"! South Texas! and just look at that Mullet!

[Sam Bankman-Fried]

Blackman is a DEI hire…for being a black man!!

[tylertusta]

...or he reads other blog posts and commentary elsewhere on the internet.

[arpiniant1]

Or, maybe traitortump is a d'bag who has no business being president, and Barrett is embarassed to have been appointed by him
MAybe, unlike Josh, she has no interest in sucking trumpski's dick

[Riva]

Not exactly exemplary behavior but I can't imagine someone with so little class or sense of decorum would have the integrity to resign. And if justices could be embarrassed into resigning, Sotomayor and Jackson would have long since left the Court.

[Noscitur a sociis]

Not exactly exemplary behavior but I can't imagine someone with so little class or sense of decorum would have the integrity to resign

What are you referring to here?

[Riva]

What could I be referring to? Are you just being obnoxious or are you really that much of an imbecile? To be honest, I'm not really sure. You probably don't even know what your alias means.

[Noscitur a sociis]

Hahaha. Keep it classy and decorous, Riva!

[Riva]

Oh I understand your confusion. Allow me to explain. Someone making anonymous obnoxious jackass replies in a comments section is not due the same respect owed to the President. In fact, when you make your little obnoxious replies, you’re due no respect at all,

[John 4]

"Someone making anonymous obnoxious jackass replies in a comments section is not due ... respect"

You got that right, jackass.

[Sarcastr0]

How embarrassing.

[ScottK]

Only to lawyers. There's a reason Josh is at a seventh tier law school.

[itsTab]

I mean,sincerely, what the hell ever loving slop is this nonsense - Prof. Blackman - "She can't be qualified because she is a LADEEE and I NEVER saw her at the Federalist Society's Annual Pig Roast."

[hobie]

Everyone knows that Josh knows that his hyperpartisan unsuitability to be a judge is precisely what will get him a Cannon-like nomination. What Blackman's brain has failed to realize is that his ridiculous, embarrassing thought processes the past few years are all permanently recorded here

[F.D. Wolf]

If Trump goes two-for-three on Supreme Court appointments, he'll be better than most GOP presidents (though the jury is still out). Many of us thought at the time Barrett was a terrible pick (and Kavanaugh too, though I would grade him as a C+ so far).

What Blackman does not mention is the party most responsible for Trump's picks: the Federalist Society. The lesson here, and I think they have learned it (the hard way) is to keep that gang of effete wimps away from judicial nominations, lest you get nothing but a bunch of Reason contributors, some good, most bad.

[MaddogEngineer]

Or maybe, just maybe, rulings on procedural issues have nothing to do with a judge's eventual decision on the merits.

Of course, that would require someone be intelligent enough to distinguish between them. Apparently that excludes Blackman.

Most of Blackman's gripes about her disappointing him have been about shadow docket stuff, where he wants his preferred party to win ASAP. But ACB has articulated her judicial hostility to prematurely deciding on the merits, so he's big mad and butt hurt.

I cannot state strongly enough, that a judicial nominee is not a failure just because s/he rules against one's political preferences. I know Blackman is not really an originalist, because actual originalists understand and even boast about that reality.

[F.D. Wolf]

Or maybe, just maybe, rulings on procedural issues have nothing to do with a judge's eventual decision on the merits.

Is that right, Professor CivPro? Yeah, a ruling on a stay has nothing to do with the merits, except requiring an evaluation of the merits to determine if the stay is warranted.

A panel of the D.C. Circuit says, "Sorry, you can't appeal a TRO." A week later, in this case, another panel says, "Sorry, you can't appeal an 'enforcement' of a TRO. You should have appealed the original TRO." D.C. judges are playing semantic games with civil procedure, and the Supreme Court is letting them get away with it.

But, sure, that's "originalism", not fecklessness or partisanship. Once these taxpayer dollars are shipped overseas, there will be getting them back. I guess at that point, the faithful originalists can just declare the case moot.

[MaddogEngineer]

Oh I'm sorry, I didn't realize I had to have passed the bar to know that Blackman is a moron.

I have no idea what the rest of your ramblings mean. "Taxpayer dollars are shipped oversees" LOL. You're doing the same thing I'm criticizing Blackman for: arguing the procedural is the merit.

I thought one of the first things they taught in law school was that not every transgression has a legal remedy. There's no "taxpayer dollar oversees" exception, no matter how much you (or Blackman) is bothered by it. Just because the District DC Circuit Courts might have gamed their orders is no justification for demanding Supreme Court justices like Barrett respond in kind. Refusing to doesn't make her a lib.

I have no idea whether she's correct. I do know that Blackman hasn't given that question any thought, because he's focused on which political side is the beneficiary of this SCOTUS decision.

[David Nieporent]

I know Blackman is not really an originalist, because actual originalists understand and even boast about that reality.

He expressly said here a year or two ago that originalism was just a vehicle to obtain his preferred outcomes, and that if it didn't deliver then it was time to abandon originalism.

[attis]

Source?

[Sarcastr0]

https://reason.com/volokh/2021/11/14/a-message-from-a-current-3l-and-fedsoc-officer-about-dobbs/

[attis]

Isn't this just expressing a contempt for stare decisis? Rather than him being purely outcome based (i.e. deferring to precedent when there is social conservativism and originalism when there is social liberalism).

[Sarcastr0]

"There are many, many consequences for originalism, if Dobbs reaffirms Roe and Casey. Bostock was just a warning shot. Dobbs could severely wound the movement I care very deeply about, and indeed the rule of law more broadly if conservatives seek other channels for reform."

[Jack Jordan]

I might believe that Professor Blackman "cares[s] very deeply about [originalism], and indeed the rule of law" (and I might even join his defense of Justices Alito and Thomas and even join his attack on Justice Barrett for not blindly following Justices Alito and Thomas) if he could prove that Justices Alito and Thomas did not lie about our Constitution and did not knowingly violate it in Dobbs.

I could barely believe my eyes when I saw them lie in Dobbs about the Ninth Amendment and then knowingly violate the Ninth and Tenth Amendments.

The Tenth Amendment obviously emphasized that federal judges could not exercise any "powers" that were "not delegated to the United States by the Constitution." The Ninth Amendment obviously emphasized that a particular power was not delegated to federal courts.

The majority in Dobbs (twice) knowingly and absurdly misrepresented that the Ninth Amendment stated a mere "reservation of rights to the people." The Ninth Amendment clearly was not merely (or even primarily) a "reservation of rights." The Ninth Amendment clearly is what judges commonly call "a rule of construction." It expressly and emphatically commanded how "the Constitution" absolutely "shall not be construed."

The Ninth Amendment expressly and emphatically commanded judges not to do exactly what the Dobbs majority did, i.e., not construe our Constitution "to deny or [even] disparage" any right "retained by the people" on the grounds that a right was not expressly included in any "enumeration in the Constitution." That command was clearly directed especially at judges whose duty is to construe the law (say what the law is).

After the Dobbs majority lied about the meaning of the Ninth Amendment, they knowingly violated it. They deceitfully focused our attention on the obviously irrelevant fact that “[t]he Constitution makes no express reference to a right to obtain an abortion." Then, they lied again. They knowingly misrepresented the consequence (dictated by our Constitution) of the foregoing irrelevant fact: "therefore those who claim that [our Constitution] protects [any] right [at issue] must show that the right is somehow implicit in the constitutional text.”

The Dobbs majority abused the foregoing lies about the law and their violation of our Constitution to pretend to justify shifting the crucial burden of proof--from the government (when it infringed on rights) onto citizens (asserting rights). The misrepresentation of law and violation of law by the Dobbs majority was clearly barred by the plain text and plain meaning of the Ninth and Tenth Amendments. It's almost unbelievable that those judges dared to do what they did in writing.

The Dobbs majority did not--and cannot--prove that their conduct and contentions did not violate our Constitution. Amendment I especially clearly barred judges from abusing their positions and powers for the "establishment" of their own "religion" or imposing their religious viewpoints on other persons (as they did in Dobbs). Amendment XIII clearly barred judges from abusing their positions and powers to facilitate "involuntary servitude" by other persons. Compelling a woman (or a couple) to involuntarily support a fetus (for some 9 months) and then a child (for some 18 years) necessarily is involuntary servitude. Moreover, our Constitution also clearly does guarantee a woman's right to use deadly force (even against another actual person and even against a citizen) for self-defense or self-preservation. That was the emphatic point of a decision by the same SCOTUS majority separated by only one day from their Dobbs decision. See all the many references to defense (or defence) or preservation in the analysis of the meaning of Amendment II in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (and even far more so in District of Columbia v. Heller, 554 U.S. 570 (2008)).

[David Nieporent]

Not the post I was thinking of, though it was one in a series of such posts that all pointed to "If Roe isn't overturned, then originalism is a failure and we need to look elsewhere."

[MaddogEngineer]

What Blackman might or might not believe about originalism is not binding on others actually trying to follow the principles of originalism (original public meaning textualism), however imperfectly.

Yes, he has shown himself for a long time only concerned about outcomes. My entire criticism of him on this post. No principle except victory.

Which is why is criticisms of Roberts and Barrett as disappointments ring hollow. Disappointing in what way? Failures as originalist judges? No. Failures at advancing his policy preferences? Yes. Except the Federalist Society, at least 4-8 years ago, never claimed they were recommending judges who would reflexively support such preferences.

(I'm old enough to remember some lamenting Gorsuch as an originalist failure for authoring the Bostock decision.)

[hobie]

The bundestag recreation last night just reinforces the urgency of a military purge and trials of all parties, including justices. I doubt you'll live to see the Russian dystopia you crave

[F.D. Wolf]

And I doubt you'll ever not be retarded, but, as long as there are internet comments sections, you'll always have the rest of the leftist hive mind in which to find the affirmation you crave.

[Krayt]

For years, I've been stating I'm fine with the US shouldering the military burdens. The alternative is some nations that rampaged across the lands in living memory re-arm. Hopefully they've changed. Our reasons for forcing that experiment are stupid.

[David Nieporent]

Unfortunately, the MAGA clan are too stupid to understand anything beyond pure ressentiment. "It's not fair" is their sole viewport into geopolitical strategy. They don't grasp that while, yeah, we've always been happy to have our allies spend a bit more and be able to provide a bit more support, we wanted to be the (as it used to be phrased) "leader of the free world." We didn't want other countries being able to act unilaterally without us. Because with that ability on their part comes a loss of our ability to take charge.

[damikesc]

And you do not understand that the desire is gone. We no longer want it. We should seek a far more mercenary relationship with the world. Want our help? Pay us. Otherwise, act like the big boys and girls you claim to be.

NATO should be disbanded. The UN should, at least, be kicked out of NYC and we should remove ourselves from that gaggle of dictators.

[John 4]

"We no longer want it."

And unfortunately, we all have to deal with the consequences of democracy.

[David Nieporent]

And you do not understand that the desire is gone. We no longer want it.

Stupid people don't want it, because they can't see more than 2 feet in front of their faces and don't know anything about history. We went through previous cycles of "What happens in the rest of the world doesn't matter to us." It doesn't end well.

[Alpheus W Drinkwater]

Krayt, exactly right. For what we are helping to head off, the price is comparably cheap.

[MaddogEngineer]

Blackman, you're an embarrassing retard.

(Hoping he does read the comments.)

[itsTab]

How dare you sir! (Just Kidding, carry on!)

[MaddogEngineer]

"Liking" the president that appointed you is not a qualification for continued Supreme Court service, you ridiculous tool. Even if he gets re-elected after an intervening defeat.

[Stuart]

Poor poor Josh. Woe is me.

[Please, Daivd, Seek Help]

Conduct yourself with some dignity.

[Longtobefree]

Well, if I must:

HOWL! HOWL!

[SamIamnot]

It looks increasingly likely that the only hope for saving the republic from a fatal descent into authoritarianism will be Chief Justice Roberts and Justice Barrett. If they come through, history will remember them with honor, and the other four "conservatives" with justified disgust.

[wvattorney13]

I'm more worried about the authoritarianism of federal district court judges. They now have the power of the purse and the power to overrule the president in an unreviewable fashion.

Trump will be gone in 4 years. This power will remain once Trump leaves office.

[grb]

Ah, yes : The "authoritarianism" of federal district court judges who hold Congress has the constitutional power of appropriations and people should be paid for contractual work they performed.....

Will the problem remain once Trump leaves office?

[Krayt]

[Grumbler]

I'm in favor of getting rid of Barrett and Roberts. I was never embarrassed at being a lawyer until I read Roberts' legal legerdemain in the Obamacare case where a penalty was not a penalty nor a tax, depending on the house of Congress where the legislation originated.

[JudgesFed]

I can tell Blackman war crying as he wrote this. It’s truly a tragedy when judges aren’t hacks for your ideology.

[wvattorney13]

The comments in the other thread insisting that Barrett really, really WAS a conservative have aged poorly.

I fear that this will soon cause a showdown between Trump and SCOTUS. Nothing huge, but he will defy them on a insanely minor issue to make a point.

[Alpheus W Drinkwater]

And what point would that be, exactly? That because you like Trump, you believe it's okay when he violates laws and assumes powers not granted to him by the Constitution? That point?

[whey_standard]

You know, reading your posts, it doesn't seem like you enjoy being here. Look how much you whine about the criticisms you receive. Perhaps you should just resign so the libertarians can find someone who enjoys the blog to take your place.

[David Nieporent]

I can appreciate the irony of suggesting he resign, but the notion that he doesn't like criticism is badly misplaced. He likes attention. Adulation is better than criticism, but criticism is much better than apathy.

Indeed, when his comments are met with yawns, he imagines criticism ("when I talk about people on the right, conservatives attack me as a turncoat, while liberals hold me up as a token to attack those they despite") so he can talk about himself.

[John 4]

And perhaps that replacement could actually be a libertarian, rather than a crypto-fascist in sheep's clothing!

[Armchair]

Barrett isn't going to step down. You don't take a job like this, which is the pinnacle of her profession, only to step down. Isn't going to happen.

It doesn't matter if she thinks she is a "real conservative" or not...she's not going to do it. Not for the reasons you mention.

[Brett Bellmore]

Actually, historically some Justices HAVE stepped down.

But not to make Blackman happy, that's for sure. Heck, if she reads this she might just find renewed reason to stick it out.

[Armchair]

Actually, historically some Justices HAVE stepped down.

Very few. In the last 100 years, 3 justices have stepped down (as opposed to retiring or dying in office).

Fortas (for scandal.)
Goldberg (to take the UN ambassadorship)
Bynes (to help FDR with the war effort)

So, sure... If they appoint Barrett as VP for some reason, she might resign to take that position. But not "just because".

[edbeau99]

Maybe Trump should offer her an Ambassadorship to Canada, along with a squadron of F-15's and battalion of Marines to protect her from rampaging Canadians.

[Frank Drackman]

you could take over most NATO countries with that force

[Alpheus W Drinkwater]

What is the distinction you are making between stepping down and retiring?

[LawTalkingGuy]

“At times, I feel like Cassandra: I saw troubles long ago, but others wouldn't listen.”

DUDE. You didn’t foresee shit. Other than yourself marrying her at some point:

https://reason.com/volokh/2020/10/27/justice-barrett-i-love-the-constitution-and-the-democratic-republic-that-it-establishes-and-i-will-devote-myself-to-preserving-it/

https://reason.com/volokh/2020/10/15/the-naturalness-of-acb/

https://reason.com/volokh/2020/10/15/judge-barrett-for-me-to-say-i-am-not-willing-to-undertake-it-even-though-i-think-this-is-something-important-would-be-a-little-cowardly-and-i-would-not-be-answering-a-call-to-serve-my-country/

[bernard11]

Exactly.

Blackman was practically infatuated with Barrett when she was appointed and at the start of her tenure.

But now, not having voted the Blackman would like a few times, she is awful and should resign. (He's big on calling for resignations). Possibly disliking Trump personally seems to be another strike, per Blackman.

I think it shows she's a normal person. Whatever you think of his policies, can you imagine actually liking the guy?

[y81]

Like most of the Conspirators (but intellectually a cut below most of them), Blackman seems unable even to imagine jurisprudential principles. It's instrumentalism all the way down with him. His vocabulary (not to mention his capitalization) is a little more sophisticated than Trump's, but otherwise it's basically just Trump wins: good; Trump loses: bad.

[Vryedni]

IIRC, you're a conservative. Josh should take note: this is what principled criticism of one conservative by another looks like. Not his self-fellating, "I'm a fearless truth-teller for calling out a so-called conservative for not being conservative enough." That offends exactly zero members of your tribe, Josh, you pitiable hack.

[grb]

bernard11 : "Blackman was practically infatuated with Barrett when she was appointed..."

But let's be fair : Not as much as Ilya Shapiro. When she was nominated, he gushed over her radiance, grace, and poise. Praising her "soft skills", he was pie-eyed as any tweeny girl mooning over her boy band idol. Shapiro admitted Trump said he was “saving her for Ginsburg”, but that definitely wasn't "affirmative action for Midwestern women". Perish the thought! Of course she was qualified; she had "a long record of academic writings".

https://www.cato.org/commentary/brilliance-lives-loudly-within-her#

That was in 2020. Two years later he would claim Jackson was a "lesser black women" who didn't deserve the nomination because she wasn't the most qualified candidate. That's what I recall after reading Blackman's whine over ACB's qualifications. And me? I think both women were qualified. I think both women show grace and poise. I think both were both legal and political appointments, as is typical with SCOUS seats.

And I think Shapiro is a weasely little troll who was servicing the worst racial instincts of his audience with the Jackson tweets. Not surprisingly, he's been leeching off his 15mins of fame ever since. Georgetown dodged a bullet.

[QuantumBoxCat]

Josh's concluding paragraph in the first post you link to:

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

I can't wait till she gets started."

Contrast that with Josh's statement in this post:

"With each passing day, Justice Barrett is demonstrating why she had no business being appointed to the Supreme Court. Indeed, she should have never been put on the "short list" before she decided a single case. And I'm not sure why she leapfrogged over so many other qualified candidates in Indiana for the Seventh Circuit seat. Justice Kavanaugh was described as the most qualified Supreme Court nominee in modern history. Justice Barrett, by that standard, would be the least qualified Supreme Court nominee in modern history."

[John 4]

This Blackman fellow seems like a clown.

[Don Nico]

By the way, Josh B. Get an editor or learn to write correct prose.

[Alpheus W Drinkwater]

Thank you! Second that.

[Jeff M]

Editors @ Reason / Volokh:
Do you need to engage in ridiculous click-bait / outrage journalism? This piece is the poorly-considered rantings of a self-styled firebrand ("Cue the howls."), as opposed to any carefully... reasoned... critique of current events. I find it hard to believe this passed any sort of editorial review. Please reconsider publishing columns like this in the future.
Dismayed, Jeff M

[circleglider]

The pygmies are out in force tonight...

[MollyGodiva]

Replacing Barrett with even a bigger partisan hack won't make things better.

[Josh R]

You are not a partisan hack. You are a "judges should rule consistent with my preferred policy" hack.

[MaddogEngineer]

The Venn diagram of those overlap almost exactly for Blackman.

[SRG2]

Barrett was great as long as she went along with Blackman. Now she appears to be Souterising and Josh is gutted.

[JoeFromtheBronx]

I noted on the previous thread that Barrett, a few times not voting along with the most conservative wing of the Court, didn't make her O'Connor. Her doing so here doesn't either.

Steve Vladeck found four (in over four years) times when there was a 5-4 vote with Roberts/Barrett and the three liberals providing a moderate result. All involved the shadow docket. Repeatedly, it didn't do much.

For instance, one involved allowing the N.Y. judge to sentence Trump to an unconditional discharge. As noted at the time, the judge didn't have the discretion to remove certain burdens that came with a conviction. Still, it was not that serious of a result, as we can see. Barrett doing that was not a resign-worthy offense.

The same here. As Chris Geidner notes, after multiple orders by the district court judge, the money still has not been provided. Just to be clear through JB's drivel. The net result here, a bare minimum of reasonableness, is a delaying action.

Anyway, JB's job seems to be to embarrass himself. Even many Trump supporters (not all; the usual suspects are known by their words) find him tedious.

I guess I'm feeding the troll, though hopefully along the way add a bit extra (even if some think me clueless) in the collision with error.

[Drewski]

I think Josh is actually thinking a few moves ahead here, as painful as that is to say. It's not about reliability, it's about radicalism. The current Senate would confirm a much more extreme nominee - someone with the "jurisprudence" of Thomas, Alito, or Ho but younger. Even if the Court is otherwise static, that would let them pen sweeping opinions unwinding a century of law.

That goes double if we lose Soto. Then imagine Thomas, Alito, and Soto all get replaced and the Court is majority MAGA for a generation. Josh isn't worried about this vote or that vote here, he's looking at a bigger picture.

[JoeFromtheBronx]

I don't begrudge talk about "the bigger picture."

I don't think it clashes with my specific comment. It covers somewhat different ground.

"It's not about reliability, it's about radicalism."

This would be strange. So, if they radically go against Trump, it's very good? Blackman wants reliability of some sort here.

And, long term, it is somewhat of a fool's game since the law is too complex, with changing concerns, to hold up too well. At the very least, if you choose multiple justices, it will be hard for them all to be reliable over time. So, Thomas and Alito are generally reliable, but Gorsuch will go his own way on certain issues.

[Drewski]

"So, if they radically go against Trump, it's very good? Blackman wants reliability of some sort here."

Let me try to phrase that more clearly: Josh is not worried about the reliability of Roberts and Barrett, he just thinks they aren't radical enough.

[QuantumBoxCat]

...

[Noscitur a sociis]

There is a constant drumbeat urging Justice Thomas and Justice Alito to retire. I think those calls are unlikely to succeed for many reasons, but also they are misguided. Thomas and Alito are still making important jurisprudential contributions to the Court.

Surely not even Prof. Blackman thinks this is why people want them to retire?

[Vryedni]

Don't call him Surely.

[Katall]

We should get rid of the DEI-selected justices. They're is only one. Of course it is Thomas.

[Kords]

Justice Barrett should resign because . . . she was appointed by a Republican but rules in ways that you don't like. I get that you might *want* her to step down and think it would be good for various reasons, but those aren't reasons that she *should* step down. At least, such reasons aren't any more compelling than a liberal's suggestion that Justice Thomas retire under a Democratic president so that he can be replaced by a new liberal justice.

I am no fan of Justice Barrett (although I prefer her over the rest of the Court's conservative wing). But she hasn't demonstrated any moral or professional failing that warrant calls for her to step down for anything other than purely partisan reasons.

In short, this is sad. Even for you.

[Savagely Average]

Aooooooo!!!

Ow! Ow! Aooooooo!!!!

[Estragon]

One question for Josh. Why the surprise?

I know you claim to not read comments but to their credit (?) several of the more maximalist political commenters on these very boards predicted that Barrett would end up being unsatisfactory (in a political sense) in the lead up to her confirmation.

Of course, the stated basis for that prediction was certain attributes of one of the children she chose to adopt— but I suppose that is neither here nor there at this point.

[Estragon]

And here we have it, from below:

“I knew Barrett was trouble when I saw a picture of her family.”

To be fair, this is one of the same people from back then, albeit multiple screen names ago. Still— prescient!

And just think: if you had been bold enough to put your name to that particular prediction and underlying logic years ago perhaps your career arc could have trended in a more positive direction!

The mistake here was to hitch your wagon to the Federalist society types— it would have been more profitable to go full Don Jr. Steve Calabresi tried it for a few months but didn’t have the heart to stick with it. I think we all know you can do better.

[Randal]

hol Josh!

while liberals hold me up as a token to attack those they despite [sic]

No liberal has ever held you up as anything, not even a token.

[Dr. Ed 2]

Marc Levin put it best -- the Constitution would never have been ratified if the states had thought it would allow a Federal District Judge to force the spending of Federal money, let alone to a foreign power.

[SRG2]

Does Mark Levin have a Ouija board to ask the FFs?

And as usual you need to reframe it. Does the Executive have the power to go against Congress's allocation of funds? Obviously not. So on who does it lie to tell the Executive, you can't do that?

[Noscitur a sociis]

Marc

Dude.

[David Nieporent]

Mark Levin put it stupidly. The Constitution would never have been ratified if the people — the states didn't ratify — thought it would allow the executive to ignore the laws passed by the legislature, regardless of what those laws provided.

[edbeau99]

I guess we can conclude that Barrett was Trump's diversity hire.

[ReaderY]

There was one and only one reason for Justice Barrett: Dobbs.

At the time, Trump was in a much weaker position and the Senate was controlled by McConnell and other opponents of his general approach, and there were several moderate republicans who would not have voted for another Thomas. He had to pick a Justice that could get a majority. A Justice Eastman or a Justice Giuliani simply wouldn’t have flown at the time.

The situation was completely different from today. Nowadays, Trump can get a ham sandwich confirmed by the Senate if he wants to.

[attis]

Barrett made a frowny face, and Roberts walked away too fast. This is disqualifying behavior for a justice. Here's 10 reasons why we should replace them with real originalists like Adrian Vermeule.

[Frank Drackman]

She helped to stem the Feticide that's killed over 50,000,000 babies since 1973, some of them "Babies of Color" and maybe even a few might have been (or were?) "LGBTQ*"
It's like complaining that Hey-Zeus had a temper, Lincoln didn't shave, or Tom Brady couldn't throw well running to his right

Frank

[Thought about __ all my life]

I am disappointed in Barrett She is not the lazy and stupid Kagan, Sotomayor or Brown type, she just doesn't have the connection between what she knows is right and what the law says
so on the aid decision
ALITO has common sense and the law on his side :

"Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned. "

[Don Nico]

As soon as you call Kagan stupid, I know that your opinion is worthless.

[myself]

This is beyond hilarious.

Blackman is mad that Justice Barrett, put on the court weeks before the election so the GOP would have a female voting to kill Roe v Wade, is more moderate than expected.

So he's what, seriously arguing that she should step down because she's not the Trumpy rubber he dreamed of? Like she'll be so sad at disappointing Trump, that instead of changing her rulings she'll just resign??

I feel like Blackman is just throwing an adolescent fit out here for everyone to read.

[DixieTune]

Conservatives are tired of these "surprises" from Republican picks. The Democrats never get surprises. Their picks are always reliable liberals, on every point.

I knew Barrett was trouble when I saw a picture of her family.

[MaddogEngineer]

Yes, it's quite the mystery why some on the right get accused of racism. When people say moronic things like this.

Seeing pictures of Barrett's family exactly explains her vote in Dobbs v Jackon, so perhaps you are unintentionally correct.

I only learned recently that Antonin Scalia was an only child. A bit surprising for an Italian American family of that era. Perhaps his childhood made him want to enjoy the blessings of a large family.

[DixieTune]

The only reason white families adopt non-white babies is to virtue signal, full stop.

[myself]

Wait you're serious?!?!

Holy crap, I was sure you were satire!!!

[DixieTune]

Notice how non-white parents never adopt babies that are not their own race. Why is that?

[myself]

You either don't understand what virtue signalling is or you don't understand what parenting is.

Virtue signalling is sending a "signal" (act or statement) that's relatively low cost/effort, but is primarily meant to signal your virtue to other people.

There's no way in hell that raising a child is low cost/effort.

People adopt for two reasons.

1) To raise a child that looks as similar to themselves as possible.
or
2) To share their privilege with a child that would otherwise experience hardship. Typically from a disadvantaged minority, preferably from a poor country.

For #1 both white and minority people they adopt a child of a similar ethnicity.

For #2 the minority parents can again match their ethnicity. But the white person often goes to the minority child.

The racial dynamics are a bit uncomfortable and arguably paternalistic. But virtue signalling they are not.

[Sam Bankman-Fried]

What about the Jerk??

[John 4]

Josh Blackman really brings out the best crowd. Doesn't he, folks?

[Hugh]

When I saw the title of this post, I thought that Professor Blackman was seeing the folly of nationwide injunctions now that they are being wielded by left wing judges, or something like that. But no, all we have is a vicious attack on a supreme Court justice who doesn't agree with his quasi-fascist doctrine of executive branch power.

[M L]

You guys are the quasi-fascist socialists. Seems the problem is Barrett agrees too much with you.

[John 4]

You freaks are having a meltdown because the judiciary won't let the executive do whatever it wants, and somehow anyone who isn't on board is a quasi-fascist. Help me understand that.

[M L]

From the tweet:

"“Thank you again. Thank you again. Won’t forget,” President Trump says as he shakes the hand of Supreme Court Justice John Roberts."

Actually looks like it was as he was shaking the hand of Kagan.

[Sam Bankman-Fried]

It could be his penis??

[Alpheus W Drinkwater]

Criticizing Leonard Leo's work is not a good way to secure that federal judgeship, Prof. Blackman. Loyalty is all to this President.

[Doug Herbert]

Reason Magazine should not be publishing the ravings of an American authoritarian. The Volokh Conspiracy needs to get rid of Josh Blackman or the Volokh Conspiracy needs to find a new, anti-libertarian home.

[vampire flames]

Josh Blackman does a journeyman's job in pointing out some hard facts. This is a good example. He is a credit to his profession and legal scholarship.

[someguyiguess]

it's called checks and balances for a reason goofhead.