See, I Told You So About Justice Barrett
Jodi Kantor published a detailed expose about Justice Barrett. Very little here surprises me. I’ve laid out the case many times. Based on Barrett’s record, she should have never been nominated for the Seventh Circuit, she should have never been put on the Supreme Court “short list” before she decided a case, she should have never been a finalist for Justice Kennedy’s seat barely a year into her tenure on the Seventh Circuit, and she should have never been elevated to Justice Ginsburg’s seat with so much unknown about her. Yet, all the while, people who held important positions in the conservative legal movement assured us that Barrett was “solid.” They could point to nothing tangible to make this case, other than their personal connections with Barrett, her academic credentials, and her Scalia clerkship. In the end, Kantor writes, President Trump picked the candidate he thought would help him get re-elected.
As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.
Justice Barrett is who she is. I think it is a mistake to say she is “drifting,” since she really didn’t have a starting place for jurisprudence. She is figuring things out as she goes along. So it is hard to blame Justice Barrett for doing what was entirely predictable. Indeed, I think Barrett is doing exactly what an untested and inexperienced law professor would do if elevated to the Supreme Court. Truly, I don’t blame her. People misunderstand my criticism of Justice Barrett.
Other than some members of the Scalia clerk family, Barrett’s biggest defenders are in the academy. It’s hard to blame law professors–especially those who were friends with Barrett before she was nominated. Moreover, when law professors defend Justice Barrett, they are not merely defending ACB. They are defending their own guild–the notion that a law professor can be the ideal type of judge.
Finally, the blame should not lie with President Trump. He made the best decision he could based on the names put before him. It’s not the President’s job to vet the pool of Supreme Court nominees. I think he is already experience buyer’s remorse.
So who bears the blame? The blame should lie with those who pushed Barrett forward at every stage of the process. Despite everything we learned from the Roberts and Souter nominations, people just wanted to believe Barrett would be something she is not. And we will pay the price for that hubris for decades to come.
Kantor quotes Barrett who drew an analogy between the Constitution and Odysseus.
In classroom lectures, she used to say that the country had bound itself to the Constitution the way Odysseus had tied himself to the mast of his ship, to resist whatever political sirens swam up.
To continue the mythological theme, I feel like Cassandra. I predict what will happen, but no one will listen to me. Maybe that will change.
Let’s walk through the details from the Times.
First, Kantor offers some new insights about PennEast Pipeline v. New Jersey.
Soon after Justice Barrett arrived at the court she began surprising her colleagues. Chief Justice John G. Roberts Jr. assigned her to write a majority opinion — among her first — allowing the seizure of state property in a pipeline case, according to several people aware of the process. But she then changed her mind and took the opposite stance, a bold move that risked irritating the chief justice.
This case split 5-4. Chief Justice Roberts wrote the majority opinion, which was joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. Justice Gorsuch wrote one dissent, which was joined by Justice Thomas. Justice Barrett wrote a second dissent, which was joined by Justices Thomas, Kagan, and Gorsuch.
Jon Adler writes that Barrett “did not lose the majority so much as she abandoned it by changing her position.” That is right. It is also possible that Justice Kagan tagged along with Barrett, turning a 7-2 decision into a 5-4. I’ve long suspected Roberts tries to keep 5-4s down to a minimum, but these sorts of heterodox splits are hard to complain about. At the time, I noted Kagan’s joining of Barrett:
More often than not, Justice Kagan has to suppress those urges to keep a majority opinion. But during oral arguments, and when she is in dissent, Kagan shows her scholarly flair.
I didn’t appreciate at the time how Kagan was trying to cozy up with Bar
Article from Reason.com
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