Radley Balko: The court's new hyper-literal originalism is producing a weird jurisprudence in which some cases turn on two competing, highly subjective, highly-distilled, multi-century historical narratives. The narrative that gets 5 votes then becomes "Official U.S. History" for every similar case that follows.

The court's new hyper-literal originalism is producing a weird jurisprudence in which some cases turn on two competing, highly subjective, highly-distilled, multi-century historical narratives. The narrative that gets 5 votes then becomes "Official U.S. History" for every similar case that follows.

Amy Coney Barrett Sounds Fed Up With Clarence Thomas’ Sloppy Originalismslate.com In a trademark case, Barrett agreed with Thomas’ bottom line but sharply disagreed with pretty much everything else.

two things stand out in the court's turn toward "originalism." the first is that it really is demonstrating the extent to which the "clarence thomas is a lightweight" critique is actually true, and the second is it has revealed barrett to be a genuinely interesting justice

ACB freaks me out because you really never know what trajectory she's going to take. She hasn't fit any clear prediction and that's both promising and disturbing.

if i had to describe her thus far she seems to be a process-first justice, hence her issue with bruen and, if the reporting is to be believed, her second-thoughts about dobbs

She may never be a justice I like, but I would rather have a procedural hound than many of the outcomes we feared.

Same. There's no world in which don't have conservative justices, and I'd rather they be of her persuasion than partisan, results-driven freaks like Thomas and Alito.

Would you put Roberts with those two or more towards the Barrett procedural group?

The Advisory Opinions podcast has described a theory - sometimes referring to academic research - about how it's not really a 6-3 court, but is a 3-3-3 court. With decision season upon us, they're doing a few pods, with one today looking at this a little www.youtube.com/watch?v=RvDf...

The Myth of the Two-Tiered Justice System | Advisory Opinions w/ Sarah Isgur and David Frenchwww.youtube.com Sarah and David discuss how the media’s focus on outcomes ignores the Supreme Court’s complexity and restraint. Plus: tips for the lawyer ready to quit.The A...

Can you point to the “second thoughts about Dobbs” reporting you mentioned?

I am assuming her second thoughts about Dobbs is she actually believed that the exceptions would be allowed and didn’t realize she was the pigeon and it was about banning it in all cases

Another example of conservatives mixing up the PR slop for what the rank and file really want

But she DID vote for dobbs, and concurred with Bruen. Scalia was rumored to have second thoughts about Bush v Gore too - it’s easy to apologize AFTER the consequences have gone your way I’m sorry, but this sounds like what we used to hear about Scalia and Thomas too, that they had legal principles

If you sign on to a ridiculous ruling like Cargill, the question is to what extent does ideology overrule all other considerations, not whether it does If we can’t avoid conservative justices, I wouldn’t rather have a conservative justice like Barrett, I’d rather have one like Souter

Souter was a Republican appointee, but it would be a stretch to call him conservative.

We don't need to forgive her for past decisions. But if she moderates for future decisions, that leaves us closer to sanity.

I’ve long had the feeling that they knew her vote on Roe and kinda forgot to ask her about the rest.

Being the woman appointed to let Thomas and Alito shamelessly run wild must be an uncomfortable position

If that's true, that's a tragedy, since it means that, at best, she's helped kill thousands of Americans while struggling to find the basic moral courage to do the right thing. I hope she gets a chance to make amends.

She’ll end up at the same result, just with different reasoning.

Often true, but that reasoning matters when we're discussing setting precedents as this analysis of Thomas shows. Generations will be arguing not just on her decisions but her reasoning and it's hard to pin down what that body of work will look like unlike Thomas's lazy back-rationalizations.

True enough. Anyone less dogmatic than that fraud is an improvement of sorts.

I wonder if she’s slowly feeling her way towards the realization that if she does everything FedSoc and her church want her to her final task as a justice will be kicking herself off the court

If we're doing nicknames can we call her Ofjesse?

Definitely she’s not as far gone as Alito & Thomas, but on which major conservative priority has Barrett not voted with the far-right majority? She does break with Gorsuch/Alito/Thomas as Kav and Roberts sometimes do She voted to Thomas’ right in TransUnion v. Ramirez, which I’m still mad about

Also crazy how far to the right “conservative” jurisprudence has lurched in the last 20 years bsky.app/profile/saba...

even if that's a correct description of ACB's mien and relative position among her colleagues, she's notably to O'Connor's right (O'Connor joined the per curiam majority in Planned Parenthood v. Casey; crafted the affirmative action consensus this SCOTUS has gutted; opposed public school prayer)

Off the top of my head: Van Buren v. United States. Case about overreach of law enforcement in data access. Wrote the concurring opinion with Alito, Roberts, and Thomas on dissent.

Yes, though when she swings it is usually with one or more of Roberts & Kavanaugh and the ideological dimensions of cases vary a lot (maybe she’s lot pro-cop than the Three Horsemen), and when the ideological valence is at her highest her vote is predictable

As Michael Dorf wrote, it says a lot about the court’s true motives that the bump stock case, which was about interpreting text (no reason in principle that syntax should come down to ideology), not about history or tradition, still came out predictably on ideological lines bsky.app/profile/saba...

Prof. Dorf: “The fact of [textual] disagreement is a strong indication that the statutory text is unclear. Does Cargill therefore illustrate the poverty of textualism? Yes…Thus, we are left to fall back on the obvious ideological explanation[.]” verdict.justia.com/2024/06/17/s...

Supreme Court “Bump Stock” Case Reveals the Limits of Statutory Interpretationverdict.justia.com Cornell Law professor Michael C. Dorf discusses the U.S. Supreme Court’s recent 6-3 decision in Garland v. Cargill, which invalidated a federal regulation banning bump stocks by finding that they do n...

i just wish she'd started when she only had like 10 or 15 years left to be interesting

How Jackson is approaching her, seems to be a years long plan to go "hey, here are some interesting historical documents you might want to look at if you want to be originalist..." And Barrett looks as if she has the intellectual curiosity to at least do that.

I'm too cynical to give her that much credit. I suspect she's more influenced by Roberts, as in "I want to agree with you, don't make me look like a fool for doing so." She wants respectable fascism and ironclad rulings, not sloppy decisions readily overturned by virtue of being ignorant.

I'm by no means arguing she's going to flip to liberal. More that it is possible she ends up the most moderate of the current 6 RW'ers on SCOTUS. Which would basically recreate the Kennedy in the middle court.

I don’t know moderate, she’s not going to split differences, but she at least seems to take her job seriously, to be a jurist. Fingers crossed, I guess.

Yeah moderate is not the word but my impression from oral arguments is that Barrett (maybe more than anyone on the Court?) asks questions with the intention of eliciting information and listening to the answers.

Most moderate doesn't necessarily equal moderate. The most moderate fire and brimstone preacher is still a fire and brimstone preacher.

Their version of history is like “I was told this in 9th grade history class so it must be true” It’s like someone who thinks the chemistry he learned in. 9th grade is iron clad and it’s like “they really simplify stuff there fella”

Notre Dame, like a lot of Catholic institutions, may be reactionary, but it genuinely values rigor.

Not sure this is fair. Is there a better way to do “history and tradition” that he’s missing? Or are you saying that the ineffectiveness is losing Barrett?

Barrett is definitely the smartest of that crew.

It’s more hyper spiritual than hyper literal. A form of therapy where the right wing justices look into the past and see themselves

This. Literally no different than cherrypicking (and often obfuscating) parts of the Bible while ignoring those that are inconvenient to justify ones opinions as morally superior.

Crazy how the original intent of laws dating back to the birth of the country and various British antecedents all somehow align with 2024 conservative goals.

Yeah they shapeshift from literalists to originalists to textualists to just ex recto depending on which is necessary to get their desired outcomes. Very occasionally one or two will actually act like they're constrained by the constitution or law.

Need a new kind of Seybert Commission

Originalism has never been anything but a fig leaf, and it distresses me every time I see somebody take it seriously rather than treating it as such

That's fair for SCOTUS, but then lower courts are obliged to apply the new precedents in some sort of sensible way. Lower courts are required to take originalism seriously, no matter how little it deserves that respect.

Oh, I know they're bound by the Supreme Court, but they shouldn't treat originalism as anything approaching a consistent school of thought

Calling it originalism seems generous, seems like they're just starting with their preferred outcome and walking the reasoning back from there.

YOU WOULD QUESTION THE GREAT AND POWERFUL OZ??!

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