Amy, Tell Me What You’re Gonna Do: Part 4

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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23 Responses

  1. DensityDuck says:

    Non-jurisprudential writings are useful as a guide to character but people used them to condemn Roberts and he upheld the ACA twice, they used them to damn Gorsuch as a vicious caveman but he authored the pro-LGBT majority opinion in Sessions. They’re not a useful guide to how that person will rule as a judge, and it’s rather disappointing to find that so many people believe that Supreme Court justices are incapable of suspending personal feelings in favor of judicial analysis–it’s not like they just grab folks off the street at random and put them on the Court!Report

  2. Jaybird says:

    There are easy cases. We expect judges to recognize them and follow the law even if it runs against their inclination. Justice Douglas routinely voted against the Internal Revenue Service in tax cases no matter what the issue was. This is unacceptable judicial behavior.

    I agree 100% with her take here.

    My problem is that I can’t help but notice how many easy cases can get turned into hard cases. Just from my lifetime, Gonzales v. Raich and Kelo v. New London were gimmies.

    And, of course, the SCotUS turned an obvious answer into a convoluted “well, you have to understand”.

    How likely is Barrett to say “well, you have to understand?”

    So my question would be: how many rulings has she had where she ruled against what she, personally, would want?

    When it comes to stare decisis, how many rulings has she had where she used precedent to keep a ruling that she, personally, liked over a reasonable reading of the Constitution when a reasonable reading of the Constitution would make any given case an easy one?

    Yeah, I am less than thrilled with Barrett too. I imagine it’ll be a lot like the upcoming election if she doesn’t get in. “Oh, good. She didn’t get in. OH WAIT THEY’RE PUTTING SOMEONE ELSE IN THERE??? SHE’S EVEN WORSE!!!”Report

    • Em Carpenter in reply to Jaybird says:

      I looked for that. I really couldn’t find anything she ruled on that was obviously contrary to what we can assume she would probably want. The sidewalk counseling case was probably closest- using precedent to limit how close abortion protesters can get to patients entering a clinic. She didn’t write it but joined the opinion.Report

      • Jaybird in reply to Em Carpenter says:

        Yeah, there’s one story that stuck with me about Scalia and… I forget the other justice. I suppose it doesn’t matter.

        They were both speaking at Mucketymuck college and got asked “Does your interpretation of the Constitution ever lead you to conclusions that you don’t like?”

        Scalia said “Oh, yeah… in case Joe v. Schmoe, I ruled *THIS* way instead of *THAT* way. In case Foo v. Bar, I ruled *THAT* way instead of *THIS* way. But the meaning of the Constitution is clear.”

        The other justice talked for 10 minutes about how difficult it was to do that sort of thing without ever giving a single example of a case where he ruled the other way.

        I’m not crazy about Scalia but, at least, he had examples of cases where he ruled the right way despite his inclinations. Not enough of them (and I mentioned one of them above)… but it’s better than none.Report

  3. Chip Daniels says:

    What is evident is that Barrett’s Catholic faith doesn’t play an important enough part of her judicial opinions.

    That is to say, she is a Republican first, and Catholic only distantly second. In the view of the Church, abortion and the death penalty, social justice and war are all woven together into a “seamless garment” of respect for the dignity of the human person and human life.

    For the contemporary Republican, the dignity of the human person barely registers at all. Property rights, and the hierarchy of white males almost always trump any other concerns.Report

    • Pinky in reply to Chip Daniels says:

      You misunderstand the conservative and the Catholic. And also Barrett. It’s an interesting subject, though. The Catholic Church has a 2000-year history of nearly every kind of church-state relationship, with nearly every kind of state. Generally the Church authorities state the specific rules of morality, and offer guidance for how to make society better, and leave the implementation up to the local members. Pope Francis just wrote a new encyclical on the subject of human fraternity. I’ve only read a little of it; these works tend to be more aspirational. The conservatives and liberals, at least of my youth, aren’t necessarily in support of or in conflict with the Catholic Church.Report

      • Chip Daniels in reply to Pinky says:

        The teaching on the death penalty is perhaps the most widely flouted one by conservative American Catholics.
        But it isn’t any less binding than the one on abortion.

        Barrett isn’t any more of a Catholic than Joe Biden.Report

        • Pinky in reply to Chip Daniels says:

          The death penalty has been permissible for most of the Church’s history. The Catechism was revised two years ago on three bases:

          “Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.”

          That last point at least implies a development in technology, not solely a development in doctrine. The Catholic Church has always held that abortion is always a sin.

          Anyone baptized a Catholic is just as much of a Catholic. Technically, I think that all baptized Christians are Catholic, even if they don’t realize it. Canon law says that anyone who procures an abortion is excommunicated; there is no similar statement about capital punishment. A teaching is considered infallible under two conditions: if it is declared so by the Pope (often in conjunction with a Council), or if it is held to have been taught at all times and places and thus not requiring the clarification of a declaration.Report

  4. Fish says:

    I sound like a broken record, but thanks again, Em. I really appreciate the time and effort you put into these pieces.Report

  5. James K says:

    I really appreciate you writing these Em.Report

  6. North says:

    These were great Em. I’m joining the chorus of praise!Report

  7. George Turner says:

    I enjoy these pieces, but I also wonder if ACB’s judicial approach matters when Biden is going to appoint twenty or so female BLM activists to the court.Report

  8. Mark from Jersey says:

    First, this series has been great. Thank you for doing this.

    The biggest concern I have here is her view of stare decisis combined with her view of substantive due process.

    It has always seemed to me (even in my more conservative days) that the argument against substantive due process really runs into problems when it tries to pretend that history starts with Griswold. I don’t see how one can argue that substantive due process is an improper reading of the due process clause of the 14th without also acknowledging the clear injustice of the Slaughterhouse cases. In other words, if you’re willing to overturn substantive due process on originalist grounds its really hard to justify not overturning the unquestionably wrongly decided and unjust Slaughterhouse cases. Overturning those would roughly replicate substantive due process.

    I’ve never really seen purported originalists struggle with this incongruity.

    This is a major reason why I’m so suspicious of originalism (as opposed to textualism), particularly insofar as it claims a lower regard for stare decisis.Report

  1. October 8, 2020

    […] Part 4 covering interviews and extrajudicial writings that have made news can be found here […]Report

  2. October 8, 2020

    […] (Note: This is part 3 of a series in which I examine opinions written by Amy Coney Barrett during her tenure on the 7th Circuit Court of Appeals. My intention is to gain and provide insight into her approach to legal analysis, beyond the headlines and partisan spin. Part 1 can be found here; Part 2 can be found here.) Part 4 can be found here […]Report

  3. October 22, 2020

    […] Note: This is part 2 of a series in which I examine opinions written by Amy Coney Barrett during her tenure on the 7th Circuit Court of Appeals. My intention is to gain and provide insight into her approach to legal analysis, beyond the headlines and partisan spin. Part 1 can be found here. Part 3 can be found here. Part 4 can be found here […]Report