Category Archives: Amy Coney Barrett

Barrett’s inevitability will stabilize the Supreme Court

A unanimous Supreme Court decision about voting rights bodes well for Barrett’s nomination and for post-election integrity and stability.

The Supreme Court handed down an interesting ruling yesterday. The issue before it in Andino v. Middleton was whether the federal court could change the Republican-majority legislature’s refusal to use the Wuhan virus as an excuse to do away with the state’s existing rule that residents voting by mail have to get a witness to sign their ballots.

This witness requirement has been in operation since 1953. Meanwhile, South Carolina is significantly easing up on its lockdown requirements (which were never as draconian as those in the big Democrat states). At a practical level, the change Democrats demanded is almost irrelevant. It’s purpose was purely political.

Last month, Democrats put before the federal court a demand that the judge rule that, because of the Wuhan virus, the Republicans could not reject a change to the witness requirement. The judge, an Obama appointee, quickly approved of the ad hoc change. The Fourth Circuit reversed that order.

The case then went to the Supreme Court. Keep in mind that this is an evenly divided Supreme Court. It has Thomas, Alito, Gorsuch, and Kavanaugh on the strict constructionist side; Sotomayor, Kagan, and Breyer on the left; and Roberts, who was nominated as a conservative but has given up any pretense of that, reliably left of center.

Any decision about South Carolina absentee voting could easily have been a split decision, either a stalemate of 4-4, or a 5-3 decision. That’s not what happened, though. Instead, it the Court was unanimous.

The core ruling is that the district court’s order was improper and that the 1953 rule is reinstated. To the extent that people had already sent in absentee ballots during the period the district court had stayed that order, those ballots may still be counted. Justices Thomas, Alito, and Gorsuch wouldn’t have allowed even those ballots to be counted.

Justice Kavanaugh wrote a short opinion that is a shot across the bows of those leftist courts that are willy-nilly changing legislative voting rules in order to advance Democrat election goals. He stated, in relevant part that it is a state’s legislature, which is “politically accountable,” not a federal court, that should be making rulings about whether a voting method is appropriate in times of illness:

It follows that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Second, not only does the district court lack the appropriate accountability to second-guess the legislature, as a matter of principle, as elections draw near, the court needs to keep its nose out of these matters:

Second, for many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.

Let me reiterate what Kavanaugh did: He put down a baseline, which is that decisions about how votes should be cast  belong to legislatures not judges. Judges across America would be well-advised to remember that.

The opinion is most fascinating to me, though, insofar as it was unanimous. This means that three hard left justices and one weak-kneed lefty-centrist also agreed to put the kibosh on a leftist district court judge who was doing what she could to advance Democrat plans. In other words, the judges went for election stability by presenting a united front.

I believe what we’re seeing here is what I would call the Amy Coney Barrett effect. The leftist justices (plus Roberts) have accepted that Barrett’s appointment is a fait accompli. Her presence on the Court in three weeks has an important implication:

Think ahead to the days and weeks after the election. My bet is that in the first count, Trump will have won — and won decisively. After all, enthusiasm for him is sky-high among open supporters and he has a lot of covert supporters as well.

Where the Democrats will fight their post-election battle will be over mailed-in ballots that came in days or weeks after the election, many without even a postmark showing when, or even if, they were mailed. These fights will often revolve around leftist judges creatively interpreting long-standing legislation about mail-in votes.

There is no question, under those circumstances, that Barrett will side with her fellow strict constructionists (Thomas, Alito, Gorsuch, and Kavanaugh). These justices will reach a ruling consistent with Kavanaugh’s concurrence in the Andino case: Judges don’t get to mess around with election laws. End of story.

In ordinary years, the leftist judges, plus Roberts, could be expected to dissent from that majority ruling. It would go against the principles not to speak out. I think, though, that Andino is a signal that in this extraordinary year, they won’t.

Judges, even leftist judges, are inherently conservative. They’re an integral part of the system and they like it that way.

Moreover, the minority activist judges must recognize that, with Barrett’s inevitable ascension to the Court, it will be a strict constructionist court. We know that, in their hearts, the leftists will object to rulings hewing to legislatively established voting rules, instead of accepting judge-made or other ad hoc changes to increase Democrat-friendly voting. They also know that if the officially dissent, their dissents will not change those rulings. What the dissents will do — and the justices know this — is inflame the leftist base, increase distrust in the election outcome, and fundamentally destabilize the American system.

The Andino case may represent the leftist judges (plus Roberts) recognizing the abyss that opens up if they allow Democrats to game election rules at will. They know, too, that even dissenting from rulings on election integrity and stability will provide ammunition to those seeking to take down the American system. With Barrett on board for all practical purposes, I think (and hope) that the Supreme Court, leftists included, is planning to present a united front after the election, in order to prevent a full-blown, guns-blazing civil war in America.

Image: United States Supreme Court (cropped) by Jarek Tuszyński. CC-BY-SA-3.0 & GDFL.

Ruth Bader Ginsburg — first thoughts and Open Thread

I’m abandoning the rule about not speaking ill of the dead. Ruth Bader Ginsburg was a politician in robes and we’re in a political season.

Ruth Bader Ginsburg has died. These are my first, rough thoughts, and they’re not in any particular order. I’ve also skipped hyperlinks, although I’m pretty sure my facts are correct or, at least, correct enough. Please feel free to add your thoughts to the comments.

1. My thoughts are with her family. Losing the mama and the matriarch is a painful thing, even if you’ve known it was coming. Having said that, let’s talk about the public figure, not the private person. And considering that everything Ginsburg did was political, this seems appropriate.

2. Ruth Bader Ginsburg was an appalling anti-constitutionalist, who always put her politics ahead of both the constitution and the law.

3. All of the leftist and RINO encomiums for her refer to her “fighting” for “equality and justice.” The mere fact that they can say that proves what an awful judge she was. If you’re “fighting” for “equality and justice,” you’re a politician. As a justice on the United States Supreme Court, Ginsburg’s focus should always have been on the Constitution. Had she had any respect for her job, she would have understood that it was for the voters and their representatives to “fight” for equality and justice. Her political side also showed in the fact that, disgracefully, she voiced an opinion in the 2016 election.

4. A good judicial opinion relies on the solid building blocks of precedent and statutory authority. The decision then rises clean and strong, like a house made of the finest materials, standing firmly on a stone foundation, with that stone being the Constitution. Ginsburg’s opinions, especially on issues that mattered to the left, were amalgams of random bits and pieces of law that could be cobbled together in a rough simulacrum of a shack. Ginsburg and her clerks hid this shoddy construction in muddy and muddled writing surrounded by myriad case citations that were never quite on point. Ginsburg’s decisions were one of the reasons I became a conservative. As a lawyer, I realized that she could reach the conclusions she did only through dishonesty and judicial sleight of hand. If she couldn’t reach those “principled” conclusions honestly, how principled were they?

5. Ginsburg long ago gave the game away on abortion. She knew that it wasn’t about giving women choices and making their lives better. Instead, as she said, it was about getting rid of population groups that Ginsburg and her elite, most white, leftists didn’t want around. Ginsburg didn’t frame it in terms of race, but it certainly worked out that.

6. Ginsburg had no respect for the Constitution she was sworn to defend. I have a link somewhere of Ginsburg saying that, if she had the choice, she would have done it differently. She didn’t say so explicitly, but she implied that doesn’t like our Constitution because it is built upon a weak(ish) central government and inherent individual rights. She would prefer something along the lines of the EU’s constitution, which has a massive centralized government micromanaging individual lives, with “rights” being predicated upon people’s relative situation vis-a-vis the government class’s preferences. Moreover, despite being labeled as rights, they’re clearly mere privileges that the government can bestow and withdraw as it wishes.

7. Ginsburg’s politicizing the Court is part of why we’re at the situation we are today, where a Justice’s death can throw an upcoming election into an uproar. When judges legislate, as she and her fellow leftists on the Court have been doing, the Court takes on oversized importance. For decades, leftists who couldn’t get their fellow citizens to vote on their policies were able to use the Court as a super-legislative body. This is not what the Constitution intended, and it means that we Americans are being ruled by a cabal of 9 people who hold their positions for life. They are, in essence, a form of non-democratic absolute monarchy.

8. Ginsburg was a terribly selfish lady. Apparently she said on her deathbed that she didn’t want Trump to nominate her successor. If she didn’t want a Republican to do that, she should have retired on Obama’s watch. At the very least, despite a Republican Senate (it was Republican in his last two years, right?), Obama could still have pushed through a mildly leftist judge. After all, the Senate was a RINO funhouse then and, if Obama had nominated a black man, even a communist, they would have said yes.

9. Mitch McConnell apparently sent out the message that he stands ready to confirm whomever Trump nominates right now. The problem is that Lisa Murkowski has already said she won’t do anything until the inauguration. Mitt Romney has proven that he will always place his ego over the good of the country, proving that he’s McCain’s spiritual heir. Why, oh why, do voters choose such awful, weak people. There’s also speculation that Susan Collins is in a tough race, implying that she can’t win if she votes for a new Supreme Court Justice in the next 45 days. My current thinking is that a conservative Supreme Court nominee is more important even than a Republican majority in the Senate in the next term. We might be able to survive a “Harris/Biden” administration, but I don’t know that we can survive a Harris/Biden administration and a strong leftist Supreme Court. That means that Collins should put her country ahead of her career.

10. We have to brace for the storm. Combine the Ferguson riots with the George Floyd riots with the Kavanaugh madness, and you will have a rough sense of the temper tantrum the left will throw. We have two choices. We can say, “No, no, let’s just wait for the election to happen. If it’s Biden, well, it’s all over anyway. And if it’s Trump, well, then we’re ready to deal with the left.”

That’s wrong. The moment we say that, we’ve already yielded to the mob’s veto. Americans in 2018 gave Trump a Senate majority because he promised to give us a non-activist Supreme Court that’s guided by the Constitution, not Das Kapital, as run through a modern “social justice” filter. We’ve still got that president and that Congress for a few more months and we should get what’s promised. Yes, the left will run amok but we have to stand up to them. Otherwise, America becomes Mogadishu. The blackmail of violence has got to end.

11. I think Trump needs to nominate Amy Coney Barrett. As far as I know, in addition to being a superb judge in the strict constructionist mode, she’s as pure as the driven snow. The only way the left can attack her is that she’s Catholic, and I don’t think American voters outside of the leftist Swamp will like that approach.

What say you?