I am still not convinced that ACB was as good of a selection as people thought at the time, and some of her rulings seem to support this conclusion.
However giving credit where credit is due, this one line in her dissent attacking Justice Jackson is brutal, short, and effective. Maybe this is a small ray of hope for ACB as a more conservative voice on the court.
https://x.com/jackposobiec/status/1938630261920366924?s=51&t=cLq01Oy84YkmYPZ-URIMYw
https://x.com/charliekirk11/status/1938615748659966299?s=51&t=cLq01Oy84YkmYPZ-URIMYw
https://x.com/endwokeness/status/1938615915253309875?s=51&t=cLq01Oy84YkmYPZ-URIMYw
8 comments:
I'm loath to come down on her too hard, despite my own disappointment with her SCOTUS track record to date. The reason is that I haven't studied the opinions of hers I found wanting, in order that I might understand what might have compelled her to rule as she did. She...or any other judge ostensibly of the kind I prefer...might disagree with the consequences of her own ruling, while at the same time believing law compels her to rule as she did. That is, "I don't like it either, but I wouldn't be doing my job if I ruled any differently." This latest ruling...and her smack down of Brown...suggests to me that if I study the rulings which resulted in opinions I don't like, I may see that...at least more often than not...it was the result of actually doing her job as she's supposed to do it.
But again, I haven't studied them...don't know that I will...and hope that those of which I disapprove were as much a result of a poor argument by those who brought the case before the court...which could explain her rulings to some extent as well.
That's not to say she was right in those cases and a Thomas or Alito were wrong. I just don't know enough about the details to understand how any of them argue for their opinions.
I agree that it is possible that the law might compel a justice to rule in a way that they personally don't agree with. Yet, if Alito and Thomas are ruling differently than ACB, does that mean that they are setting aside law and precedent in favor of ideology?
The primary problem is that the court has become political, and that we expect justices to rule based on the politics of the president who nominated them. It could be argued that this trend started when FDR wanted to expand and pack the court. It could be argued that it's necessary because if we don't, the other side will.
This is why I didn't overreact to Trump's nominations. My belief was that his nominees would be better than any DFL president which was enough of a win. I didn't buy the guaranteed 6-3 majority talk because of the track record of conservative justices drifting to the left in a way that liberal justices do not.
This seems to expose Jackson for what she is, which is a good thing. Beyond that I'll restrain my excitement.
On a related tangent, I firmly believe that either Alito or Thomas, or both should retire during Trump's term. While I hope that we'll get another 4 after this, it seems risky to hope that both can stay on the court for another 7 or 8 years. (Get through this term, get through 4 years of a potential DFL president) and wait for a GOP president after that. I don't want to lose either of them, but It'd be worse to have them get replaced by a DFL president.
"Yet, if Alito and Thomas are ruling differently than ACB, does that mean that they are setting aside law and precedent in favor of ideology?"
Not necessarily. It could simply mean they didn't consider the issue in the same way, sort of like when someone with whom you are aligned ideologically says or does something you never considered, and then your opinion changes a bit.
In a similar way, Thomas and Alito might come to the same conclusion on the strength of two very different arguments, with one being more compelling to the listener than the other, which may actually not be compelling at all.
This slap down suggests Barrett's not a moron, like Brown or Sotomayor, but that doesn't mean she's a "great" choice for the gig, just a far better choice that either those two or Kagan, either.
All jurists rule based on the presidents who put them on the bench. The issue, then, is the president. If the president wants originalists, then hopefully his picks will be originalists likely to rule the same way the president would if he was on the bench himself. If the president wants someone who agrees with him on certain opinions, his picks will rule in a manner which agrees with the president who put him there. There's no way to get around this and it's always been so. It just might not have seemed as bad when the worst Dem presidents weren't as bad as they've been in recent years. Imagine that fool Garland on the SCOTUS! And what kind of horrors might Clinton have nominated had she won in 2016?
So I didn't overreact to Trump's nominations. I was quite geeked that it was he who was in the position to fill seats rather than Obama, Clinton and obviously now that there's no doubt, Biden. Obama did bad enough giving us Sotomayor and Kagan. His meat puppet gave us Brown. I'll be geeked if Trump is followed by Vance or DeSantis, should Thomas and Alito (or Sotomayor give her personal issues) retire.
I don't think of "packing" the court with sound Constitutionalists/originalists of high intelligence is a bad thing for the nation, and indeed, I demand it. Expanding the number beyond the current nine is only for the purpose of filling the new seats according to the party in power at the time of the expansion. I don't see the GOP looking to do that, even if we get the next five justices selected from a leftist's pool of possibilities. I don't trust the left not to try to do it at any time.
My reaction the slap down is more one of hope...that it compels Brown to consider taking a powder, though I don't think that will happen because of this single episode. If, say, Thomas does it at some point, of if Kagan is too shocked an Brown lunacy on a future ruling, then Brown might start looking for a way to bolt without losing face. That would be a good thing.
As to your hopes for Thomas and Alito, I can't disagree, though I don't know what their personal preferences are on the subject. If they think they can hang in for another decade or more, that's up to them barring something drastic. The way this term is going, Trump seems to be making it harder and harder for his detractors to maintain their irrational never-Trump attitudes and I believe if he doesn't have a nasty episode of really bad moves, more lefty voters will turn on the Dems and likely vote GOP after Trump's done. At the same time, I hope Trump has a stronger list of possibilities than he had the first time. We need a Thomas, Alito or Scalia to replace Thomas and Alito when they retire.
"It could simply mean they didn't consider the issue in the same way,..."
That's possible. Yet, if they what we think they are, it seems strange that they are unable to persuade their fellow "conservatives" more often.
"All jurists rule based on the presidents who put them on the bench."
Which obviously explains why justices appointed by conservative presidents so often vote in ways counter to what most would consider conservative principles. Liberal justices toe the liberal line, "conservative" justices, not so much.
If I recall, you were pretty adamant that Trump's justices were one of his highest and best accomplishments. I could be wrong about that. I'm not sure that "better than potential "Obama and Clinton" nominees is a particularly high standard. Even though I agree that I'd rather have justices appointed by "conservative" presidents, I'd still prefer that those justices be the best possible candidates and not just those who can get confirmed.
As noted, I would prefer that Thomas and Alito resign during this Trump term so as to preserve the current balance. If they don't, then I'd hope that Vance or De Santis wins. For them to hang on through Trump, then leave during a DFL presidency (worst case scenario) would be close to a disaster. I have no problem with "packing the court" naturally. If Those three leave during a GOP administration, I would expect that they be replaces with "conservatives". The expansion for the express purpose of packing that FDR considered, would be a farce and should not ever be considered.
I can't see Brown stepping down for something like this. She's got a sweet deal. A lifetime appointment without fear of being fired for stupidity, and significant earning potential beyond her salary. She's not going anywhere.
The likelihood of both of them making it another decade seems slim, although not impossible. The guarantee of GOP control of the presidency in a decade also seems uncertain. While I'd prefer to keep them around forever, and realizing that they aren't supposed to be political, I'd rather have them step down soon and get two young "conservatives" to replace them than risk something crazy that sees a DFL win in 2028. As unlikely as that seems right now, it seems foolish to count on a GOP win in 2028. Obviously, replacing those two would require some high quality judges.
"Which obviously explains why justices appointed by conservative presidents so often vote in ways counter to what most would consider conservative principles. Liberal justices toe the liberal line, "conservative" justices, not so much."
You're right. My comment was poorly worded. I meant to suggest that jurists are selected in hopes of ruling based on the presidents who put them there. But indeed, there are too many examples of those who didn't in far more obvious and egregious ways than Barrett has (conceding I haven't studied all her controversial opinions).
"If I recall, you were pretty adamant that Trump's justices were one of his highest and best accomplishments."
And they were given the overturning of Roe was such an important priority. You may have overstated my actual sentiments, but that's OK.
" Even though I agree that I'd rather have justices appointed by "conservative" presidents, I'd still prefer that those justices be the best possible candidates and not just those who can get confirmed."
Sadly, given the character of the Dem side of the Senate, the latter might be the best for which we can hope. This means, more than packing the court, we need to pack the Senate. Slim majorities are sometimes no majority at all. I'd also like to know exactly who is studying trial records to draw up a president's list of options. I don't know deep in the weeds a president has time to get in order to rank that list properly.
"I can't see Brown stepping down for something like this."
Well, yeah...neither can I. That was just open pipe dreaming on my part. But, if there are more like this, where her opinions are publicly criticized for their abject stupidity, taking the money she's earned and running before she's any more publicly embarrassed to remain could happen. Don't know enough about her personally to place any wagers, though.
As to your last paragraph, that really depends upon the quality of those drawing up a list of alternatives. That's really where the rubber meets the road. I hope the negatives of his previous selections have compelled Trump to make more certain of his choices should he get the opportunity.
As to your praise of Trump's picks, I'd have to go back and see. Regardless, ACB has so far not been what anyone expected in terms of how she's ruled.
Well, there's what people expected and then there's what people should have expected. I read an article a few weeks back wherein the writer noted the things about which she spoke during her confirmation hearing and how closely her actions have matched what she said. And that's the thing about judges...it's a lot of study to get a true picture of just how they might do the job. And that's more true of a GOP choice than a Dem choice, because we're justified in assuming the Dem choice will be shit, and any sound rulings they present will be like Christmas. But ours absolutely have to perform or they're no better. I maintain that the real important job belongs to whomever actually assembles the list of possibles for consideration by the prez. If the list is really good, then even a bad choice from that list will likely do OK.
Obviously the person or people who assemble the list have an important job, yet POTUS still needs to pick one who'll get confirmed. I guess I'm not a fan of trying to figure out what someone should do, it seems a bit too speculative. Of course liberal judges toe the liberal line, while conservatives don't.
Post a Comment