The Practical Difference Justice Amy Could Make

John O. McGinnis, a law professor at Northwestern University, writes today that the SCOTUS is now the "Barrett Court." In an admirably lucid article he argues that "the newest justice will change the dynamic among her colleagues." And, interestingly, we may see what McGinnis means by a 'changed dynamic' very soon--in the Pennsylvania election law case.

The way this changed dynamic works is actually quite simple. Chief Justice Roberts has been able in quite a few cases to shape the Court's decisions in ways that he prefers. He has been able to do this by alternately siding with either the four conservative justices or with the four liberal justices. Whichever side he takes in a 5-4 decision, as CJ he gets to either write the decision himself or choose who will write it. He also is able to influence the shape of the decision with the understanding that if the others don't go along with him, he can always go the other way.

With the solidly conservative Justice Amy now confirmed, that entire dynamic is changed--or, will change, as long as the five conservative justices are in basic agreement. The reason is that the five conservatives won't need Roberts' vote, and if he sides with the three liberals it won't make any difference. If he goes with the five conservatives with the intention of shaping the decision, that approach becomes much more difficult because they don't need him and can simply decline to join with him. Further, Justice Thomas could play a much larger role, by virtue of being the senior justice on the Court:

if [Roberts] is not in the majority when the rest of the conservatives are, the right to assign the opinion will then pass to Thomas. Thomas remains the most committed originalist on the Court and can use the opinion assignment to put the law on his own preferred trajectory. The diminishment of Roberts’s power thus shifts authority to Thomas. Look for him to write more originalist opinions for the Court. Thomas can also assign opinions to the other strong originalists, including Barrett.

This is why I was so excited to see Thomas at the White House ceremony for Justice Amy. I took it as a signal that the two are of similar judicial philosophies. Of course, in any given case things could get more complicated than this, but the tendency seems clear:

The strengthening of the originalist camp leads directly to more originalist opinions. A justice assigned an opinion has some leeway to write it the way he or she wants, and more originalists will enjoy the drafting pen. Moreover, justices can move the law with powerful concurrences and even dissents, and we will see more such originalist efforts with more justices joining them.

Roberts' Pennsylvania decision was a 4-4 case. With Justice Amy now on board, this 'changed dynamic' could play out in her first major decision. If Justice Amy sides with the four conservatives, if they hold together--and the concurrences by Gorsuch and Kavanaugh in the Wisconsin case suggest that they will--then Roberts will find himself either in the minority or compelled to execute and embarrassing public volte face.

ADDENDUM: There's something about this photo I really like:

Justice Amy's First Big Case Coming Up?

Last week, in a 4-4 decision written by CJ Roberts, the SCOTUS let the Pennsylvania Supreme Court's outrageous election meddling stand. That was followed by a Roberts smackdown of a federal court meddling in Wisconsin's election. The difference? Here, per Bench Memos, Roberts explains himself:

While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.

It sounds like a salutary exercise in federalism, but there is a fly in that ointment--the US Constitution.

Justices Gorsuch and Kavanaugh were having none of Roberts' rehashing of the Pennsylvania case, and sharply disagreed--once again. Ed Whelan explains:

Judge Amy Makes A Statement?

As you've probably heard, Judge Amy will become Justice Amy by being sworn in by ... Justice Clarence Thomas. No, not Chief Justice John Roberts, as is normally the case.

I haven't read any explanation for this. Is it possible that Judge Amy is sending a message, making a statement? Of solidarity with the solidly conservative judicial hero Clarence Thomas? Giving us an idea of what to expect? I hope so.

Or maybe this is--at least in part--a campaign photo op: Orange Man, Black Man, Suburban Mom? I like that, and if that's the case I like that Judge Amy was willing to go along with that idea.

But most of all, perhaps, I'm really happy for Clarence Thomas getting this moment in the spotlight. This guy has paid his dues. He's paid his dues but he has also given back--not only in his written opinions but also by hiring and mentoring really solid law clerks who have gone on to serve in influential positions, whether on the federal bench or elsewhere in public service. In that respect, Thomas is regarded as one of the most influential justices ever, and he deserves recognition for his contributions to the conservative cause, at the price of years of vilification by despicable people.

Judge Amy Update: While Awaiting Confirmation She Adopts A Troubled Youth

His name is Hunter:

Heartwarming: Amy Coney Barrett Just Adopted A Local Troubled Youngster Named Hunter https://t.co/PCM6qQoHyx

— The Babylon Bee (@TheBabylonBee) October 19, 2020

Patrick Deneen On Amy Coney Barrett

Will Justice Amy be the second coming of Clarence Thomas--only as a white female? I sure hope so! And Patrick Deneen offers some hope in that regard in this teaser. What a concept, hey? America as a project to secure the common good. The point is, for that to be the case there needs to be some basic agreement on just what the common good is. Says Deneen:

So the constitution is not merely a non-aggression pact, as I think it has been increasingly interpreted, for people to do as they wish.

 

In other words, at the time of the founding there was a basic agreement as to the substantive content underlying the notion of a common good. We need to recover that to Make America Great Again. I believe AG Bill Barr is very much on board with that project--of recovering a substantive notion of the common good--and Deneen contends that Justice Amy will be, too. I'm all for it.

"America is a political project to secure the common good."@PatrickDeneen on natural law, the common good, the U.S. Constitution, and Amy Coney Barrett.

Full interview coming soon on @NatConTalk . pic.twitter.com/iLGu4lDXTK

— Yoram Hazony (@yhazony) September 29, 2020

OMG! ACB Is Sunk!

 Sorry, I couldn't resist this:

CNN Reports Amy Coney Barrett Attended Bizarre Ceremony Where She Ate Flesh, Drank Blood Of Jewish Guy

September 28th, 2020

SOUTH BEND, IN—In a disturbing new report, CNN has revealed the bizarre practices of the strange cult Amy Coney Berrett belongs to. Known to some as "Christendom," it features many ancient rituals that were recorded by undercover CNN journalists at a strange stone building on Sunday where the ceremonies were held. 

"I've never seen anything like this," said CNN's investigative reporter from the scene. "This is really, really sick stuff. It's never been more clear to me that Amy Coney Barrett is an existential threat to our civil liberties, in addition to being a major weirdo." 

According to sources, the building where these rituals take place is littered with statues of dead people. In addition to the statues, the central feature of the inner sanctum is a giant torture device with the likeness of a victim being nailed to it.

"Please be advised," said the CNN anchor reporting the news. "What you're about to see is disturbing." 

Secret cameras showed Amy Coney Barrett kneeling before a priest-type figure as he recited some kind of incantation in a dead tongue. The priest then held up a round wafer and a goblet of red liquid which he announced to be the true body and blood of a Jewish rabbi who died 2000 years ago.

"I can't believe I'm about to say this, but she ate and drank the stuff," said the reporter with trembling lips. "This is horrifying. Amy Coney Barrett must be stopped!"

They then brought a newborn baby to a basin of water and attempted to drown it. Fortunately, the baby survived. After the ceremony, they crossed themselves in what appears to be a vague reference to the Crusades and a white-supremacist dog-whistle. 

"This woman is clearly looney-tunes. No chance she'll be confirmed," concluded CNN. 

Might Justice Amy Play A Role In The Russia Hoax?

That's right--I've already promoted Barrett from Judge Amy to Justice Amy.

And the answer to the question is, Yes, she just might play a role in the Russia Hoax.

We've referenced 42 U.S. Code § 1983 - Civil action for deprivation of rights in the past. it's the federal law that allows people to sue the ass off people who deprive them of their constitutional rights. There is a problem with that and--sit down for this--it's a judge made problem. Judges decided that this law was too hard on law enforcement types, so they came up with a doctrine of "qualified immunity" in such cases. That doctrine can be summarized--and, indeed, the SCOTUS did summarize the doctrine--this way:

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

When--not if--the prosecution of Michael Flynn is dismissed for government misconduct, Michael Flynn will be suing the ass off those who were responsible for violating his rights. It's called a Bivens action.

It just so happens that Judge Amy, soon to be Justice Amy, has a track record on Bivens and qualified immunity, and it's not the kind of track record that potential Bivens defendants will be happy with. You can read about it here:

Horror Story: When I Clerked For Barrett ...

 

Jeremy McLellan

@JeremyMcLellan

When I clerked for Barrett she tried to adopt me twice against my will, called regular wine cis-substantiated, had a yellow phone with a secure line to the Vatican, and made me read all the memos out loud in Latin while facing away from her. Please Democrats, you must stop her.

8:10 AM · Sep 26, 2020

And what would we do without the Babylon Bee?

Trump Fires Off Giant Pink Glitter Cannon To Reveal Gender Of SCOTUS Nominee

Trump suddenly appeared on the White House lawn and greeted all the gathered crowd with a wide beaming smile like that of an expectant father. “Thank you, ladies and gentlemen and Democrats and Fake News media! I am very happy, so very happy, I don't even remember the last time I was this happy, to announce the gender of our nominee to fill the seat!” he said. 

The crowd erupted in joyous applause as the Secret Service rolled out a giant wheeled cannon similar to a civil war artillery piece and pulled the trigger to send an enormous cloud of pink glitter into the air.

“Of course it’s a girl! It’s a girl!” Trump said as he made an hourglass curve gesture with his hands. “Tremendous. Thank you very much!”

Another Big Step Toward MAGA

Andrea Widburg has the story at American Thinker, with plenty of documentary explanation: Trump strikes a second, massive blow against Critical Race theory. It's hard to overemphasize how important Trump's new move is. Trump's first executive order against Critical Race Theory indoctrination in government agencies--which he enforced when CDC tried to ignore it--was a big first step toward healing the nation from Leftist inflicted hate mongering. This new executive order extends the ban on CRT indoctrination to: 

the military, 

government contractors, and 

"grantees" (i.e., among others, institutions of education).

The scope of this ban is now, essentially, society wide. It adds the ban to two more fundamental societal institutions--the military, with its vast network of contractors, and education--taking them out of the indoctrination game, bringing the Gramscian long march of the Left through our basic institutions to a grinding halt. Control of indoctrination in the military and in educational institutions has been key to the poisoning of our youth's minds with Leftist ideology. Universities can "resist" the ban, but they'll be doing it without federal money. 

Obviously this is still the first step. Trump's reelection is an essential next step if we are to see the full fruits of this bold initiative. In particular, if we are to see how far the provision regarding "grantees" and contractors may extend. For example, do social media and tech companies qualify as "government contractors". My guess is that most of them do, in one way or another. This executive order could be a far more effective and expeditious way of addressing the problem of Leftist indoctrination and censorship than years long anti-trust lawsuits. Those lawsuits can begin and continue, but effective change and control over Leftist attempts to silence opposition will not have to wait on the results of antitrust litigation.

Getting a new conservative voice on the SCOTUS will be another big step in this direction.

The stakes in this election could not be more clear.

Excerpts from Widburg's article:

UPDATED: Barrett Or Lagoa?

Right now that appears to be the choice--one of the two. 

Realistically, while one hopes that principle plays a dominant role in the selection, electoral considerations are bound to play a part. Lagoa, of course, would appeal to many Floridians, and Florida is a supremely important state for Trump.

On the other hand, while Lagoa comes well recommended, her resume is unquestionably on the thin side for a SCOTUS nominee. Nobody really knows that much about her. Barrett has an excellent resume and appears to be a clear favorite among conservatives. She also, by the sheer Middle American normality of her persona, might well appeal to a broad swath of Americans--especially women, and especially in the upper Midwest.

My tendency is to go with Barrett for reasons that don't denigrate Lagoa. It's not Lagoa's fault that she's not more of a known quantity--it takes time on the federal bench to establish the type of credentials that recommend a person for the SCOTUS, and Lagoa simply has not had the bench time or the time in an academic setting to establish a judicial profile to that extent.

I like that Barrett, while having for certain periods of her career been a member of the Federalist Society, is not closely associated with the Libertarian wing of the GOP or the legal establishment. I like her track record on important issues for conservatives: Title IX, Immigation, 2nd Amendment, and 4th Amendment.