Hearings are underway for Supreme Court nominee Amy Coney Barrett. She has been doing well. There are plenty of sources for highlights. Mostly I want to talk about the Constitution and what the Supreme Court’s role is according to our law.
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| Amy Coney Barrett shows she doesn't need notes to answer Senators' questions image from New York Post |
We recently went through the first three Articles of the
Constitution, dealing with the legislative, executive, and judicial branches.
Article III covers the judicial branch. There are briefly written limits describing
the duties of the federal judiciary. The problem we’re in right now is the
extension beyond those limits.
It may be that these hearings are used by future generations
as a basic lesson on the Constitution. Judge Barrett has answered questions in
a way that explains the Court’s role in adjudicating according to the law, not
according to what some partisan wants the outcome to be.
There was a line of questions on Tuesday, from Senator Amy Klobuchar,
former Democrat presidential candidate. She wanted to know whether, as justice,
Barrett would adhere to stare decisis in all cases—which has been the
purpose of the questioning all along, to know whether she will go along with previous bad rulings that the Democrats like. Klobuchar asked in reference to a Texas
Law Review article Barrett had written using the term superprecedent.
It’s a term I hadn’t heard before, but Barrett defines it when asked:
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| Senator Klobuchar questions Judge Amy Coney Barrett screenshot from here |
ACB: The way that it’s used in the scholarship, and the way
that I was using it in the article that you’re reading from, was to define
cases that are so well settled that no political actors and no people seriously
push for their overruling. And I’m answering a lot of questions about Roe,
which I think indicates that Roe doesn’t fall in that category. And
scholars across the spectrum say that doesn’t mean that Roe should be
overruled. But descriptively it does mean that it’s not a case that everyone
has accepted and doesn’t call for its overruling.
Klobuchar asks again about Roe. Gets the same
response. Asks again about United States v. Virginia Military. Gets the
same response.
The denseness of the Democrat questioners is a product of an
ideological mind that isn’t open to another way of thinking.
Democrats think of the Supreme Court—and the court system
leading up to it—as an additional legislative (lawmaking) body, where they can press
through their agenda when they can’t get it through elected means. Wherever the
courts have been controversial, it is based on the idea that the ruling should
be what Democrats want the outcome to be, not based on what the law is.
Earlier today there were additional witnesses, ACB having
sat through multiple 12-hour days of questioning earlier in the week. The first two
additional witnesses were from the American Bar Association who had been
involved in her rating—which was the highest rating: well qualified to be on
the Supreme Court. Mr. Noel said they looked at “a judge’s analytical
abilities, clarity of writing, knowledge of the law, application of the law to
the facts, harmonizing a body of law, reasoning, scholarship, and the ability
to communicate effectively.” What didn’t come into it was the nominee’s
political leanings or even her judicial philosophy. Incidentally, that’s why
Justices Kagen and Sotomayor also got the highest rating from the American Bar
at the time of their hearings.
Much of what the Court does is not controversial. I used to
try to measure the block voting of the Court [see here and here], until I discovered that the SCOTUS
blog does an annual stat pack to provide that info. This year, the 2019 session (they start in October and end the following June,
or whenever they finish) there were fewer cases than usual; 10 were postponed
until the 2020 session because of COVID-19. The rulings played out this way:
·
9-0 22
cases 36%
·
8-1 6
cases 10%
·
7-2 12
cases 20%
·
6-3 7
cases 11%
· 5-4 14 cases 24%
So, out of 61 total cases, you have a combined 40 cases, or 66%, that are settled with little disagreement. For that to happen, you need justices who actually understand the law.
The difficulty comes with the more controversial cases,
especially the quarter of them with a 5-4 split. For those cases, you need
justices who both understand the law and adhere strictly to the Constitution.
Or, that is what we should want in a country based on the rule of law rather the law of the ruler.
But that is not what Democrats
want. They actually, indeed, want justices who will ignore the law and come up
with some rational-sounding justification for ruling according to the outcome
they want.
That is what they had with Ruth Bader Ginsburg. When you
look at praise for her legacy, they don’t quote her rulings for their brilliant
clarity on the Constitution; they quote her accomplishments as an activist
attorney, earlier in her career, and praise her defense of “rights” that were
invented, by the Court, beyond the Constitution.
They are partisans using the judiciary in partisan ways. And
they assume that the conservative side does the same. You could see the
confusion on the faces of Democrat senators as Barrett explained, over and over
again, what the Constitution says is the role of the judiciary—to interpret
law, not to make it. She even reminded them that, if a ruling based on the law
wasn’t to their liking, it was up to their branch, the legislature, to make
changes to the law.
But they would much prefer to have their hand-selected but
unelected oligarchy rule from the bench, rather than submit to the scrutiny of
the voting public, which might not agree with their designs.
So, about the other additional witnesses today: Those in
support of the nomination (Judge Thomas Griffin was one) talked about how Judge Barrett has a record of
following the law—even when it went against her personal preferences. Those
against the nomination talked about issues they were concerned about—echoing the
Democrat senators who questioned Barrett.
Some were concerned about the ACA (Affordable Care Act, the
ironic actual name for Obamacare). It’s clear that isn’t settled law, because
it was a closely split decision with plenty of flaws in the Roberts-led opinion
that construed a requirement to buy a product as a tax, if that’s what it took
to allow the law to stand. If it ever comes before the Court again, would
getting rid of a bad law take away people’s healthcare? It could be temporarily
disruptive, but anything that leads to less government interference and more
free market solutions will be better for all in the long run. But the Democrat
side doesn’t want to risk losing power over the people in areas not granted to
the government in the Constitution. Usurping power is such tedious work, they don't want to have to redo it.
Some were concerned about Roe v. Wade being
overturned. While it’s unlikely that could happen, it isn’t out of the
question. What would be the result of a reversal? A return of the question of
abortion to the individual states, where it sat before that still-unsettled bad
ruling. Theoretically, some states could then pass laws to outlaw abortion—probably
with exemptions for pregnancy resulting from rape and for threat to the life of
the mother. But states that favor abortion now would have it—with fewer limits
than now. So the testimony was disingenuous at best.
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| Crystal Good, testifying against Amy Coney Barrett screenshot from here |
One testifier was a woman who had been the victim of abuse in her home. The adults in her life had not believed her and failed to bring an abusive stepfather to justice. But she didn’t need an abortion because of rape; she was 16 when she got pregnant from having sex with her boyfriend. And, she tells us, because her grades were so good, she was able to convince a judge that she was capable of making a decision to kill her baby that the adults in her life were not entitled to decide. What an inconvenience that was, to go before the judge in intimidating private chambers rather than in a large public courtroom! [What?] But she’s happy and proud that she did what it took to kill that baby so she could go ahead with plans for her life and not be punished with a baby.
And therefore she’s an authority we should believe when she
says we shouldn’t have a judge like Amy Coney Barrett who wants to take away
that "right" of a 16-year-old to kill her baby that resulted from illicit teenage
sex. Yeah, I’m not convinced—either of that argument or of Barrett’s inability
to rule on the law based.
Another concern is that the Supreme Court might have to get
involved, as in Bush v. Gore, to settle the upcoming election—when it should be
settled by the votes. We agree, it should be settled by the votes; in Bush
v. Gore the votes didn’t settle it. And every time the vote count came out
the way the Democrats didn’t like, they changed the rules in hopes of changing
the outcome—until the Supreme Court stepped in, on behalf of the people of the
nation, to stop activist Florida Democrats from overruling the votes of the
people not only in Florida but in the entire country.
Could such a situation happen again? Only if the Democrats
attempt to steal the election again. So, yes. Since they are bound and determined to
do that, with mail-in ballots and voter harvesting schemes; refusing to clear
voter rolls; and allowing illegals, felons, and dead people to vote—yeah, the
Supreme Court could conceivably be called on to step in. But it won’t be to
overrule the votes of the people; it will be to attempt to protect the
votes of the people. And it would be better to have all the
Constitution-reading judges we can get on that ruling so we can avoid a
stalemate.
Every issue the opponents of the nomination bring up is an
issue in which they want an outcome that is outside the Constitution.
If you’re a Republican, or a Democrat, who cares about the
rule of law and abiding by the Constitution, you benefit from this nomination.
Only if you favor partisan arbitrary rule would you oppose the nomination. But
that is what the opponents do, and they are relentless.
Back in 2014 I used an analogy; the “19 times” referred to cases against the HHS mandate in Obamacare that had been rule in favor of the plaintiff. I originally referred to the then-DOJ head, but to update, I’ll just use “the tyrannists”:
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| Great Wall of China Mr. Spherical Model took this photo in 2013 |
You’ve probably heard the Thomas Edison quote, in which he
says, “I have not failed. I have just found 10,000 ways that won’t work.” Maybe
the tyrannists have that kind of attitude.
We feel strong having thwarted the assault on our rights each
of these times so far. But we are required to win 100% of the time; the
Constitution’s enemies only have to win once.
Think of the Constitution as a high wall protecting our
liberties—visualize the Great Wall of the Constitution. The tyrannist is among
the enemy Radical Socialist Hordes trying to invade. Picture this tyrant, with
grappling hook and long rope in hand. He throws the hook time after time. Each
time, the metal hits the wall and falls to the ground. He picks it up and
throws it again. Nineteen times so far. But he’ll keep throwing. All he has to
do is throw it hard enough to catch one time. Then he can climb the rope,
secure it further, and allow one invader after another to follow him. And they
can bring additional ropes up, and secure them when they get to the top, so
more invaders can come at the same time.
The failed throws aren’t evidence that he’s a failure and should stop trying; to him it is just part of the process of the invasion effort.
At that point the ACA hadn’t won a case. It had lost 19 in a
row. But once it got a single win—the hook was set. Only recently has
President Trump removed the mandate penalty. But the rest of that monstrosity
of law still binds us.
I ended that piece with this, which fits again today:
If there is any lesson in the balance in split cases, it is
that we absolutely need the next appointment to the Court to be a person who
loves and understands the Constitution, and the rights it was written to
protect.
The more I see of Amy Coney Barrett, the more I am persuaded
that she is such a person. All Americans—even those who don’t recognize it—benefit
from that kind of justice. It is “justice for all.”[i]
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