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The Right’s Relentless Supreme Court Justice Picking Machine The Right’s Relentless Supreme Court Justice Picking Machine
(about 8 hours later)
In 1992, according to an article in The Times, Justice Clarence Thomas told two of his clerks that he planned to remain on the court until 2034.In 1992, according to an article in The Times, Justice Clarence Thomas told two of his clerks that he planned to remain on the court until 2034.
Why 2034? one of them asked.Why 2034? one of them asked.
“Liberals made my life miserable for 43 years,” Thomas replied, “and I’m going to make their lives miserable for 43 years.”“Liberals made my life miserable for 43 years,” Thomas replied, “and I’m going to make their lives miserable for 43 years.”
Once Amy Coney Barrett takes her seat, Thomas’s prospects for imposing misery will brighten considerably. Of course, Thomas is not the key player here, but only one participant in the conservative movement’s four-decade struggle to wrest control of the judiciary from a once powerful liberal legal establishment.Once Amy Coney Barrett takes her seat, Thomas’s prospects for imposing misery will brighten considerably. Of course, Thomas is not the key player here, but only one participant in the conservative movement’s four-decade struggle to wrest control of the judiciary from a once powerful liberal legal establishment.
Armed with an originalist doctrine that enables subjective interpretation of the Constitution, and supported by a growing willingness to overturn precedent by jettisoning the principle of stare decisis (“to stand by things decided”), the Supreme Court will be able to knock down what remains of the liberal legal edifice constructed by the Warren Court from 1953 to 1969.Armed with an originalist doctrine that enables subjective interpretation of the Constitution, and supported by a growing willingness to overturn precedent by jettisoning the principle of stare decisis (“to stand by things decided”), the Supreme Court will be able to knock down what remains of the liberal legal edifice constructed by the Warren Court from 1953 to 1969.
What is this movement banking on? White resentment of the civil rights movement, corporate opposition to the regulatory state, a growing property rights movement in the Western states and the anger of social and religious leaders over abortion rights and what they perceive as an assault on religious liberty by the state.What is this movement banking on? White resentment of the civil rights movement, corporate opposition to the regulatory state, a growing property rights movement in the Western states and the anger of social and religious leaders over abortion rights and what they perceive as an assault on religious liberty by the state.
If she is confirmed, Barrett will almost certainly strengthen a legal insurgency that challenges race-conscious remedies in civil and voting rights litigation; threatens not only abortion rights but also access to some forms of contraception; disputes the legitimacy of independent federal agencies; and weakens divisions between church and state.If she is confirmed, Barrett will almost certainly strengthen a legal insurgency that challenges race-conscious remedies in civil and voting rights litigation; threatens not only abortion rights but also access to some forms of contraception; disputes the legitimacy of independent federal agencies; and weakens divisions between church and state.
The right has devised new doctrines to justify conservative rulings, flooded the courts with an expanding cadre of judges and legal scholars, financed a host of legal firms to challenge liberal laws and liberal rulings, and built a multimillion dollar network of tax-exempt groups to promote its agenda.The right has devised new doctrines to justify conservative rulings, flooded the courts with an expanding cadre of judges and legal scholars, financed a host of legal firms to challenge liberal laws and liberal rulings, and built a multimillion dollar network of tax-exempt groups to promote its agenda.
The conservative legal revolution, which first took off in the late 1970s, caught the Democratic powers-that-be asleep at the switch. As Steven Teles, a political scientist at Johns Hopkins and a senior fellow at the Niskanen Center, argued in his 2010 book, “The Rise of the Conservative Legal Movement,” the left had begun to lose touch with the electorate:The conservative legal revolution, which first took off in the late 1970s, caught the Democratic powers-that-be asleep at the switch. As Steven Teles, a political scientist at Johns Hopkins and a senior fellow at the Niskanen Center, argued in his 2010 book, “The Rise of the Conservative Legal Movement,” the left had begun to lose touch with the electorate:
In gearing up to challenge the legal left, Teles wrote, conservatives faced hurdles more difficult to overcome than in other arenas, including Congress:In gearing up to challenge the legal left, Teles wrote, conservatives faced hurdles more difficult to overcome than in other arenas, including Congress:
Conservatives, although initially poorly organized, had constituencies ready and waiting to be mobilized. Teles describes them this way:Conservatives, although initially poorly organized, had constituencies ready and waiting to be mobilized. Teles describes them this way:
At the same time, Teles — described by The Wall Street Journal as a “liberal political scientist” — contends that the success of the conservative legal movement has been based not just on money and effective organization, but also on the merit of its analysis.At the same time, Teles — described by The Wall Street Journal as a “liberal political scientist” — contends that the success of the conservative legal movement has been based not just on money and effective organization, but also on the merit of its analysis.
In his book, Teles wrote:In his book, Teles wrote:
The intellectual and organizational foundation for the conservative takeover of the federal judiciary expanded with time.The intellectual and organizational foundation for the conservative takeover of the federal judiciary expanded with time.
Steven Calabresi, co-founder of the Federalist Society, was working in the mid-1980s for Ronald Reagan’s Attorney General, Ed Meese, in the Office of Legal Policy. In a series of memos to Meese, Calabresi faulted the traditional conservative commitment to “judicial restraint,” arguing instead for a very different approach, the aggressive application of the theory of “originalism.”Steven Calabresi, co-founder of the Federalist Society, was working in the mid-1980s for Ronald Reagan’s Attorney General, Ed Meese, in the Office of Legal Policy. In a series of memos to Meese, Calabresi faulted the traditional conservative commitment to “judicial restraint,” arguing instead for a very different approach, the aggressive application of the theory of “originalism.”
“The courts and the executive must start using their constitutional powers to hold the Congress within its proper constitutional sphere,” Calabresi wrote in a memo to Meese.“The courts and the executive must start using their constitutional powers to hold the Congress within its proper constitutional sphere,” Calabresi wrote in a memo to Meese.
Calabresi has separately written about originalism:Calabresi has separately written about originalism:
Liberal scholars sharply dispute this view. Geoffrey Stone and William P. Marshall, law professors at the University of Chicago and the University of North Carolina, wrote in 2011:Liberal scholars sharply dispute this view. Geoffrey Stone and William P. Marshall, law professors at the University of Chicago and the University of North Carolina, wrote in 2011:
In this view, it is originalism that lends itself to subjective interpretation that could enable jurists of all ideologies to reach almost any sought-after conclusion.In this view, it is originalism that lends itself to subjective interpretation that could enable jurists of all ideologies to reach almost any sought-after conclusion.
In an intriguing account of the intellectual ferment in the Justice Department during the Reagan administration, Calvin TerBeek, a doctoral candidate in the University of Chicago political science department, argues that in January, 1987:In an intriguing account of the intellectual ferment in the Justice Department during the Reagan administration, Calvin TerBeek, a doctoral candidate in the University of Chicago political science department, argues that in January, 1987:
Even more aggressive, TerBeek wrote, “were ideas for a constitutional amendment that would add ‘expressly’ to the Tenth Amendment and allow for ‘Collective state repeal of federal law’. ”Even more aggressive, TerBeek wrote, “were ideas for a constitutional amendment that would add ‘expressly’ to the Tenth Amendment and allow for ‘Collective state repeal of federal law’. ”
The elite constituency of conservative ideologues and rich donors that draws up the approved list of candidates to fill judicial vacancies does so behind closed doors with little transparency.The elite constituency of conservative ideologues and rich donors that draws up the approved list of candidates to fill judicial vacancies does so behind closed doors with little transparency.
Senator Sheldon Whitehouse, Democrat of Rhode Island, has become a leading critic of the power brokers who produce these lists of acceptable judicial nominees and of the pro-business tilt of Supreme Court decisions. In an interview, Whitehouse described the process of selecting judges under Trump to me.Senator Sheldon Whitehouse, Democrat of Rhode Island, has become a leading critic of the power brokers who produce these lists of acceptable judicial nominees and of the pro-business tilt of Supreme Court decisions. In an interview, Whitehouse described the process of selecting judges under Trump to me.
First, Whitehouse noted, “the selection of possible judges is run through the Federalist Society under the guidance of Leonard A. Leo.” Once the president makes his choice, Whitehouse continued, “the Judicial Crisis Network goes to work, running TV campaigns funded by anonymous donors.”First, Whitehouse noted, “the selection of possible judges is run through the Federalist Society under the guidance of Leonard A. Leo.” Once the president makes his choice, Whitehouse continued, “the Judicial Crisis Network goes to work, running TV campaigns funded by anonymous donors.”
In fact, on Sept. 26, the network announced that it would spend “at least $10 million” in support of Barrett’s Supreme Court nomination.In fact, on Sept. 26, the network announced that it would spend “at least $10 million” in support of Barrett’s Supreme Court nomination.
Along similar lines, Casey Maddox, senior policy fellow at Americans for Prosperity, the dominant group within the Koch family network — which also does not disclose its donors — told CNBC that Along similar lines, Casey Mattox, vice president for legal and judicial strategy at Americans for Prosperity, the dominant group within the Koch family network — which also does not disclose its donors — told CNBC that
Not to be outdone, the United States Chamber of Commerce told Axios that it will be organizing members and others through social media to lobby Congress on Barrett’s behalf. In an effort to pressure moderate and centrist Democratic senators who want to appear pro-business, the Chamber will use the vote on Barrett in their public ratings of members of Congress.Not to be outdone, the United States Chamber of Commerce told Axios that it will be organizing members and others through social media to lobby Congress on Barrett’s behalf. In an effort to pressure moderate and centrist Democratic senators who want to appear pro-business, the Chamber will use the vote on Barrett in their public ratings of members of Congress.
“You have to draw the conclusion that the court is the least democratic of all institutions,” Whitehouse told me.“You have to draw the conclusion that the court is the least democratic of all institutions,” Whitehouse told me.
In a Sept. 25 oped in The Washington Post, “Shifting from a 5-4 to a 6-3 Supreme Court majority could be seismic,” Leah Litman, a law professor at the University of Michigan, and Melissa Murray of N.Y.U., made the case that with the addition of a sixth member, In a Sept. 25 op-ed in The Washington Post, “Shifting from a 5-4 to a 6-3 Supreme Court majority could be seismic,” Leah Litman, a law professor at the University of Michigan, and Melissa Murray of N.Y.U., made the case that with the addition of a sixth member,
They pointed out with Barrett on the court it will be easier to find five potential votes to reverse Roe v Wade, the key 1973 abortion decision and thatThey pointed out with Barrett on the court it will be easier to find five potential votes to reverse Roe v Wade, the key 1973 abortion decision and that
The court, in Shelby County v. Holder, has already severely weakened the 1965 Voting Rights Act, Litman and Murray noted, and a strengthened conservative majority could go a step farther andThe court, in Shelby County v. Holder, has already severely weakened the 1965 Voting Rights Act, Litman and Murray noted, and a strengthened conservative majority could go a step farther and
The 6-3 court, they write,The 6-3 court, they write,
In addition, such a reconfigured court would likely challenge “race-conscious university admissions policies.”In addition, such a reconfigured court would likely challenge “race-conscious university admissions policies.”
In an email, Litman described some of the intellectual jujitsu the conservative bloc will have to resort to in order to achieve these goals:In an email, Litman described some of the intellectual jujitsu the conservative bloc will have to resort to in order to achieve these goals:
If the conservative bloc seeks to declare legislation mandating contraception coverage unconstitutional, Litman continued, it would have to argue thatIf the conservative bloc seeks to declare legislation mandating contraception coverage unconstitutional, Litman continued, it would have to argue that
If, in turn, the conservatives choose to argue that the mandate violates the First Amendment, Litman wrote in her email,If, in turn, the conservatives choose to argue that the mandate violates the First Amendment, Litman wrote in her email,
Some members of the court, Litman noted, have shown interestSome members of the court, Litman noted, have shown interest
The conservative argument is that because aThe conservative argument is that because a
All of which suggests that the most significant contribution Barrett will make to the continuing rightward shift of the court will be on stare decisis.All of which suggests that the most significant contribution Barrett will make to the continuing rightward shift of the court will be on stare decisis.
Ruth Marcus a Washington Post columnist, wrote on Sept. 26 thatRuth Marcus a Washington Post columnist, wrote on Sept. 26 that
No other nominee to the court, Marcus continued,No other nominee to the court, Marcus continued,
Marcus cited Barrett’s own writing in a 2017 Notre Dame Law Review article, “Originalism and Stare Decisis”:Marcus cited Barrett’s own writing in a 2017 Notre Dame Law Review article, “Originalism and Stare Decisis”:
Laurence Tribe, a professor of law at Harvard, argued on Twitter:Laurence Tribe, a professor of law at Harvard, argued on Twitter:
Other legal scholars do not believe that Barrett has taken an extreme position on stare decisis.Other legal scholars do not believe that Barrett has taken an extreme position on stare decisis.
Barrett “approaches stare decisis from a practical perspective” in her extensive academic writing on the topic, Saikrishna Prakash, a law professor at the University of Virginia, told Bloomberg Law. “She doesn’t ever say that the courts should be overturning a bunch of precedents.”Barrett “approaches stare decisis from a practical perspective” in her extensive academic writing on the topic, Saikrishna Prakash, a law professor at the University of Virginia, told Bloomberg Law. “She doesn’t ever say that the courts should be overturning a bunch of precedents.”
What does this all boil down to?What does this all boil down to?
Needless to say, the prospect of six conservative members of the Supreme Court, appointed for life, has provoked deep anxiety in both the center and the left.Needless to say, the prospect of six conservative members of the Supreme Court, appointed for life, has provoked deep anxiety in both the center and the left.
Not only do liberals see a court determined to demolish past rulings, they fear that if Democrats win control of the White House and Congress, the court will rule future liberal initiatives unconstitutional, as it did in the 1930s in response to F.D.R.’s New Deal.Not only do liberals see a court determined to demolish past rulings, they fear that if Democrats win control of the White House and Congress, the court will rule future liberal initiatives unconstitutional, as it did in the 1930s in response to F.D.R.’s New Deal.
This prospect is driving leaders of progressive interest groups to the brink.This prospect is driving leaders of progressive interest groups to the brink.
Sherrilyn Ifill, president of the N.A.A.C.P. Legal Defense Fund, declared that the nomination of Barrett comes at a time whenSherrilyn Ifill, president of the N.A.A.C.P. Legal Defense Fund, declared that the nomination of Barrett comes at a time when
Vanita Gupta, president and chief executive of The Leadership Conference on Civil and Human Rights, is similarly alarmed:Vanita Gupta, president and chief executive of The Leadership Conference on Civil and Human Rights, is similarly alarmed:
According to Michelangelo Signorile, a gay rights proponent who publishes the Signorile Report, “This is a five-alarm fire for LGBTQ Americans.”According to Michelangelo Signorile, a gay rights proponent who publishes the Signorile Report, “This is a five-alarm fire for LGBTQ Americans.”
In short, we are looking at a conservative movement determined to exercise the judicial authority it has struggled for decades to win against a Democratic Party consumed by a burning sense of injustice.In short, we are looking at a conservative movement determined to exercise the judicial authority it has struggled for decades to win against a Democratic Party consumed by a burning sense of injustice.
This can be the kind of struggle in which blood is shed — irregular warfare with no winners. But as the sociologist Lewis Coser, author of “The Functions of Social Conflict,” wrote in 1956, conflict can also have an integrative function and “prevent the ossification of the social system by exerting pressure for innovation and creativity.”This can be the kind of struggle in which blood is shed — irregular warfare with no winners. But as the sociologist Lewis Coser, author of “The Functions of Social Conflict,” wrote in 1956, conflict can also have an integrative function and “prevent the ossification of the social system by exerting pressure for innovation and creativity.”
The strength of the Trump movement, even as it may be on the wane, suggests that as a counter measure, liberals might seek to create a broader consensus on strategically significant points, particularly those that provoke the most contention, until a leader like Trump is no longer viable or electable.The strength of the Trump movement, even as it may be on the wane, suggests that as a counter measure, liberals might seek to create a broader consensus on strategically significant points, particularly those that provoke the most contention, until a leader like Trump is no longer viable or electable.
Insofar as politics is the continuation of war by other means and not the other way around, there is also the possibility of the resolution of disagreements once thought to be irresolvable — the possibility, in other words, of progress.Insofar as politics is the continuation of war by other means and not the other way around, there is also the possibility of the resolution of disagreements once thought to be irresolvable — the possibility, in other words, of progress.
But first we have to get through an election.But first we have to get through an election.
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