September 26, 2020

"Regardless of what you or I may think of the circumstances of this nomination, [Amy Coney] Barrett is highly qualified to serve on the Supreme Court."

"I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them. I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year... Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School. When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it."

Writes Harvard lawprof Noah Feldman (at Bloomberg). I don't really believe Feldman needed Barrett to explain anything or Martinez to know what to think. The discussion of the 2 women is not really about Feldman's help-seeking but about 2 different approaches to statutory interpretation. Barrett (clerking for Scalia) found the meaning in the text "without reference to legislative history or the aims and context of the statute," and  Martinez (clerking for Breyer) would "pragmatically engag[e] the question of what a statute is actually trying to do."

Feldman also vouches for Barrett's character:
To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.
Reading between the lines, I see a recommendation to the Democratic Senators that they adopt a temperament of calm and decorum — and not because civility is good but because incivility will bite them in the ass. I presume the sincere and lovely Amy will have her 7 children lined up right behind her. Feldman is trying to bestow permission on the Democratic Senators to be very kindly toward Barrett, even though the RBG mourners are screaming for blood.

ADDED: Maybe you, like me, were irritated by the phrase "what a statute is actually trying to do." A statute has no mind. It is not trying to do anything. Human beings have minds and they wrote the statute. What legislators were trying to do when they wrote it includes what they could have put in the text and did not. Their legitimate power does not extend to things they'd also want but neglected or chose not to put in the text that was voted on. Feldman makes it sound more sophisticated for a judge to supply what was left out of the text, but the Scalia position on that is that it's illegitimate for judges to enforce what they imagine the legislators were "actually trying to do."

123 comments:

BADuBois said...

But what about her stealing those two Haitian children? Huh? Huh?

eric said...

The Democrats are screwed here.

If they attack her, they'll energize the right because we will be pissed at how evil they are.

If they don't attack her, they'll piss off the left for failing to destroy her and stop her from getting on the court.

They don't really have the power to stop this and the left doesn't understand that. So they'll blame the Dems for failure.

Unless somehow the Dems figure out a way. In which case it may hurt Trump's re-election chances.

Achilles said...

Marbury vs Madison must be overturned.

Bill Harshaw said...

Sometimes there's no imagination required--the conference committee report will tell you what the committee intends, and woe betide the bureaucrat who ignores their intentions. I've seen committees threaten to cut the salary of agency heads for such violations.

Limited Perspective said...

Trump may be an SOB, but he has the right instincts. He put Kavanaugh up to replace Kennedy and held Barret for when RBG would be gone. I'm looking forward to the Barret vs. Harris meeting more than the Harris vs. Pence meeting.

Kevin said...

Feldman makes it sound more sophisticated for a judge to supply what was left out of the text

It is only without the Justices' interpretations that the law has any validity, for it is only without such interpretations that the law made it through the difficult and multi-branch process for it to become a law.

Without that process of multi-branch review and consent, it is nothing more than an idea in some Congressperson's head or words stored on a Congressional Staffer's hard-drive.

Would the ACA have been able to pass if it were labeled "the largest tax increase in the history of the country"? Or would it have lacked the critical votes? Would Obama have signed it, if it were clear that's what he was doing in his first term? Or would the White House have asked for revisions to pare down the cost?

Roberts seemed not to consider this issue, let alone care about it.

It is not only through respect for the Constitution, but for the separation of powers and the will of the people, that wise judges choose not to put their fingers on the scales.

We seem to have the Justices' acknowledgement that they should not be rewriting statues. Now if we can only get them to stop reimagining them.

BleachBit-and-Hammers said...

Lets all remember that Ruth Bader G ruled that it's OK for the State of Colorado to harass a local business owner.

Original Mike said...

"Maybe you, like me, were irritated by the phrase "what a statute is actually trying to do.""

I was more disappointed in the author rather than annoyed. It matters what the statute does do and whether that is allowed under the Constitution. How can there be anything else?

But then, I didn't go to a fancy dancy law school, so what do I know?

Paul Mac said...

We are already seeing the concern trolling questions about her adoption and childcare. As a working law professor and mother I'll be interested to hear Althouse's take on this.

To me it seems they just can't stop themselves. https://twitter.com/beyondreasdoubt/status/1309910837939896322/photo/1

https://twitter.com/chadfelixg/status/1309656560889724939

https://twitter.com/sport_andstuff/status/1309820809876320256/photo/1

Laslo Spatula said...

If we discovered that an abortion statute was actually trying to kill minorities disproportionally would the law be allowed to stand?

Shhhh, Ms. Sanger; quiet there, Adolph.

I am Laslo.

Sydney said...

With 7 kids, I’m sure they can find one of them who is mad at her or hates her or who just loves the limelight enough to be used to denounce her.

BleachBit-and-Hammers said...

Paul Mac
So the 'Women can do it all! - career and Family!' left - are now questioning Amy on this feminist premise?

Leftist democratics are gross hypocrites.

MountainMan said...

The Democrats will not be able to control themselves.

Dagwood said...

What, nothing on the biggest media-smothered story of the past 24 hours?

#FlynnrelatedreleaseofFBI-Obamaconspiracydocs

Limited Perspective said...

How will the principled, religious, intelligent, mother of seven Barret, who rose on her own talents do against the secular, amoral, whiney, identity politician Harris? I am looking forward to that conversation.

William said...

She will definitely be the best looking female justice on the Supreme Court and will do much to refute the stereotype that female justices are old or overweight. Maybe little girls will be inspired by her presence to aspire to careers in the law. (s/ content 23%.)

mockturtle said...

but the Scalia position on that is that it's illegitimate for judges to enforce what they imagine the legislators were "actually trying to do."

Exactly!!!

Cap'n John's Nephew said...

I wish the Dems luck trying to re-bag the "decorum" Mountain Lions they released into American society. Me? I'm taking the time to enjoy the short period of relative quiet before the cats return to town.

BleachBit-and-Hammers said...

It's early and the list will grow - but here is what we have from the left:

-Amy is an unfit mother

-How dare Amy and her husband adopt children from Haiti. (Must better to ruin Haiti economically and rape Haiti economically like the Clintons did)

-Amy cannot possibly live the feminist dream of career and family -that's only for us lying hypocritical leftwing bitch-wimin to attempt.

- Amy is handmaid's tale. She will force us to carry the babies of these horrible white menz! She will reduce us all to wombs! I read it in a book!

-Catholicism is evil. Only the church of the leftwing democratic fascist /Church of the North Star Prophet/ Marxist Gaia are worthy of our blind faith and knee bending worship.

Cap'n John's Nephew said...

I wish the Dems luck trying to re-bag the "decorum" Mountain Lions they released into American society. Me? I'm taking the time to enjoy the short period of relative quiet before the cats return to town.

Professional lady said...

Just read that a group of Black Pentecostals made a statement that ACB should not be persecuted for her faith. So, the Dems are going to piss off religious Black people too.

Brennan said...

"Maybe you, like me, were irritated by the phrase "what a statute is actually trying to do." A statute has no mind. It is not trying to do anything. Human beings have minds and they wrote the statute. What legislators were trying to do when they wrote it includes what they could have put in the text and did not. Their legitimate power does not extend to things they'd also want but neglected or chose not to put in the text that was voted on."

Based on my practice as a lawyer, I think Prof. Althouse gets this quite wrong. One thing that is *never* included in a statute is an explanation of how it applies to an individual case/fact pattern. Yet my clients - and judges - insist on such explanations. My answers to application questions frequently involve saying things like "this statute is trying to ____". So I would put Prof. Althouse's irritation here firmly in the "academic quibble" category. (Also, thanks to the Professor for her years of blawging!)

J Melcher said...

Those who may be irritated by the phrase "what a statute is actually trying to do" may be inferring, or projecting, what Feldman is trying to say.

What legislators (and their collective staff) are trying to do is (1) Get re-elected. (2) Be seen to be active in addressing a problem. (3) Trade, bank, or cash in some "points" with fellow legislators, via mutual back-scratching, horse trading, and log rolling. (4) FINALLY, actually put a proposal into words.

Even an originalist, even a purely textual analyst, can't interpret the words of the text without some context. Continuing example, the text "well regulated militia" means something different to a population still fired up with memories of Redcoats marching against Lexington and Concord than it does to a population accustomed to OSHA and EPA and DOT and BLM other "regulators". (Some of whom might be beneficially surprised to be confronted with peaceful, yet armed, citizens opposed to our government's activities. )

What was the question the proposed language of the text trying to answer? What does it "Say", and what does it "Mean" ? And why is there any difference?

AlbertAnonymous said...

Well if you want to talk about what a statute is trying to do...

Roberts’ Obamacare opinion

Good Lord what a crock. Specifically make it NOT a tax because they don’t want to be seen as raising taxes, and yet Roberts finds it constitutional as an exercise of congress’ taxing power. WTF?

Michael K said...

Achilles said...
Marbury vs Madison must be overturned.


And John Marshall was nominated and approved after Adams had lost the election to Jefferson.

I still wonder if the Democrats have enough self control to just boycott the hearing. That would probably be their best move unless their research has come up with racism somewhere in her New Orleans past.

hstad said...

I love Feldman's answer "what a statute is actually trying to do." Prof. Feldman, what you're really saying is "what [I want] a statue [to] actually...do". What a typical Liberal hack!

wildswan said...

There's an interesting talk by ACB at Hillsdale College floating around the internet. In it she says that it is not only religious people who have strong moral values but also atheists. So that the question for a judge in such a society is not: "Are you religious?" but: "Can you set aside your personal values to uphold the law in its entirety as written." That's a question any Justice in a diverse society can be asked and, maybe, should be asked. It can be hard to answer. At the time of the Civil War the South said the sections of the Constitution relating to slavery were statements upholding the righteousness and the permanent position of slavery in the US. Whereas the North said that those sections represented a temporary carve-out on behalf of the slaveholding states, an temporary exception which was not expected to be permanent since those sections went against the rest of the Constitution and the Declaration of Independence. Jefferson Davis, the KKK and the 1619 project in our own time have all held the first position whereas Lincoln, the 180,000 former slaves who fought for the Union and those who passed the 13th, Fourteenth and Fifteenth Amendments and then supported the Civil Rights Movement took the second position.

I'm just putting out my thoughts, really my deeply held beliefs, not instructing.

PJ said...

I was SO irritated by that phrase, and thank you for sharing. The Living Constitution is bad enough without those clerky types sticking us with striving statutes.

Sebastian said...

"that they adopt a temperament of calm and decorum"

Yeah, right.

"ADDED: Maybe you, like me, were irritated by the phrase "what a statute is actually trying to do."'

A little late for that. We know our progs. At least since Brennan, a statute is trying to do what they want it to do. You did tell your students that, right?

Narr said...

Remember the joke about McCain of sainted memory and his adopted kids of color?

Hey, nine homes don't clean themselves!

ACB is a graduate of our fine little Ivyish liberal arts college, about whom the verse used to go--

Zoo U, Zoo U, where the girls are girls and the boys are too.

Narr
Nice place to visit

Gahrie said...

Their legitimate power does not extend to things they'd also want but neglected or chose not to put in the text that was voted on.

Once again, Althouse teases me that she is coming around to being an originalist.

Feldman makes it sound more sophisticated for a judge to supply what was left out of the text, but the Scalia position on that is that it's illegitimate for judges to enforce what they imagine the legislators were "actually trying to do."

Yes...but has that become the Althouse position? And if not, why not?

Bay Area Guy said...

1. She's easily qualified
2. Subjectively, she has sufficient "judicial temperament" (whatever that means).

Ergo, she should be confirmed almost unanimously. (Scalia was confirmed 99-0).

3. The Senate Dems, of course, are liars and smear artists. They will vote only for nominees who swear to uphold the "super-precedent", Roe v Wade. They smeared Bork, Thomas, & Kavanaugh. So, if history is any guide, they will ignore ACB's actual published opinions, and try to personally smear her.

That's how Democrats roll.

hombre said...

Regardless of his motives this is an honorable, courageous stand for Feldman to take. There is a high degree of likelihood that Democrat Senators will show up as the ignoble creatures the world has seen them to be.

Regardless of what Althouse thinks, Feldman may have consulted with Barrett seeking explanations. He has graciously conceded her qualifications to offer them. Maybe he means what he says even if he is a Democrat an a law professor.

Skeptical Voter said...

They can't help themselves; and their backsides are going to look like a Rottweiler chewed them.

Drago said...

BAG: "That's how Democrats roll."

Democraticals and LLR-lefties.

Gahrie said...

Marbury vs Madison must be overturned.

If you look at the actual history of the case, ignoring the merits, it clearly is an illegitimate decision.

Marbury was a supporter of Adams who lived in Washington D.C. and was appointed by President Adams and approved by the Senate to a position as a federal judge. It was the job of the Secretary of State to deliver his commission. For most of Adams' presidency, the Secretary of State was Jefferson. However Jefferson resigned after the election, and John Marshall became the acting Secretary of State. Marshall had already been seated as the Chief Justice of the Supreme Court. Marshall was the man who failed to deliver the commission to Marbury, even tough Marbury lived in the city. When Jefferson took over, he told Madison (his Secretary of State) not to deliver the commissions, and that they were no longer valid. Marbury sued. The case went up to the Supreme Court. Not only did Marshall not recuse himself, he wrote the decision and created judicial Review.

Marshall not only created the very controversy that allowed him to invent judicial review, he wrote the decision in such a way as to ensure it wouldn't be challenged by Jefferson.

Marshall pulled the most important con in American history.

Drago said...

eric: "The Democrats are screwed here.
If they attack her, they'll energize the right because we will be pissed at how evil they are."

Here's a few of the lines of attack that have already been launched by the democraticals and their LLR-lefty housebroken lap poodles:

- ACB adopted her children illegally

- ACB is committing cultural appropriation because the children are black

- ACB must be a terrible mother to be a professional outside the home with 7 children at home (yes, that's what our moron feminist (redundant) accusers are saying)

Indeed, the lefties/LLR-lefties will not be able to help themselves. They will go Full Bork on her.

Kevin said...

If we discovered that an abortion statute was actually trying to kill minorities disproportionally would the law be allowed to stand?

The purpose of a system is what it does.

Bob Smith said...

When Judges talk about what the framers of a statute we’re trying to do they are looking for a reason to let a criminal off the hook. Personal responsibility being a racist construct and all.

traditionalguy said...

Amy’s smile is full of love. That alone makes her a strange lawyer/ Judge. She could Just go off and love the wrong side in a case we need to win. Or she could compromise for peace when we need to crush the bad guys. Women are risky creatures.

Francisco D said...

A statute has no mind. It is not trying to do anything. Human beings have minds and they wrote the statute. What legislators were trying to do when they wrote it includes what they could have put in the text and did not. Their legitimate power does not extend to things they'd also want but neglected or chose not to put in the text that was voted on.

Althouse,

Are any of your students serving as judges? Hopefully they were paying attention in your classes.

I wonder if you would be cancelled today for those heretical thoughts.

Gahrie said...

And John Marshall was nominated and approved after Adams had lost the election to Jefferson.

Marshall was a member of the House of Representatives from March 5, 1799 to June 6, 1800.

He became the Secretary of State on June 13, 1800, and served until the Jefferson administration took over on March 4, 1801.

He became the Chief Justice of the Supreme Court on February 4, 1801 (While still serving as Secretary of State.)

In the space of three years, Marshall filled important positions in all three branches of government.

Jefferson was named the president elect in December of 1800, and took over in March of 1801.

Tim said...

"Maybe you, like me, were irritated by the phrase "what a statute is actually trying to do."" Is this not the difference between the "conservative" wing of the court and the "liberal" wing of the court? Both in laws and the Constitution, the conservatives go to what the law says, with allowance for differences in meaning of words over the years, and the liberals going for what the intent of the framers or legislatures was, according to the liberals of course. It is fortunate the current slate of leftist judges was not around in the Roman era, or writing down the laws would not be regarded as much of an achievement!

Andrew said...

@profesional lady,
The letter from black pastors preemptively defending ACB is here. It's well worth reading.

https://110c6a4e-4c9f-4c15-bc98-ca4791e6331d.filesusr.com/ugd/f15948_3af035a920684c4bb4232e897988d1be.pdf

Bay Area Guy said...

@Drago:

BAG: "That's how Democrats roll."

Democraticals and LLR-lefties.

Yeah, you're good at reminding us that there's a chunk of weasel Republicans in the game. So stipulated. But they don't riot, loot, burn buildings and shoot cops - like the far left wing of the Dem Party. They mostly drink latte with Bill Kristol and read the Bulwark together on Sat nights.

Howard said...

She's another Roberts?

I'm Full of Soup said...

As if we need a far left liberal Harvard law prof to tell us Barrett is an excellent choice. He probably is supporting Biden and probably thought Obama was qualified to be president. What an arrogant bunch of jokers liberals have become.

Unknown said...

Based on this article, you may want to consider making the edit now, to avoid the rush:
former Harvard lawprof Noah Feldman

Howard said...

She's cute, but I wouldn't Bork her with Moscow Mitch's dick.

Rabel said...

Amy Coney Barrett will be confirmed and will be a tremendous addition to the Court and will finally break up the 4+1 headlock the left has used for so long to rewrite the Constitution.

But since we're quibbling today - I heard her speak for the first time over at Legal Insurrection - She may be a brilliant mind and mother of 7 who worked her way to the top of the legal profession - But she talks like a 12 year old girl.

Hey, nobody's perfect.

Clark said...

AA: "Their legitimate power does not extend to things they'd also want but neglected or chose not to put in the text that was voted on."

This is why talk of legislators' intent is so dangerous. It too easily gets divorced from the text. Of course intent is involved in various ways (intent of the author, intent of the reader) in understanding the meaning of a text, but if the intent does not make it into the text, so to speak, it is irrelevant.

Bill, Republic of Texas said...

I still wonder if the Democrats have enough self control to just boycott the hearing. That would probably be their best move unless their research has come up with racism somewhere in her New Orleans past.

This is their only hope. They'll dig up some psycho Democrat witness, scrub their social media history and have them testify the heard ACB use the n-word.

Mittens and the surrender brigade will call for an exhaustive FBI investigation about what was said some party 30 years ago. Rinse and repeat until after the election.

Birches said...

The left going after transracial adoptions so they really didn't listen to Feldman.

I'm proud of him.

NorthOfTheOneOhOne said...

This is gonna be good! Make popcorn!

Via Insty;

Black Pentecostal leaders: Amy Coney Barrett 'persecuted' for charismatic faith

Heh!

David Begley said...

Ann:

Do you know ACB from law prof meetings? Ever read any of her law review articles?

dreams said...
This comment has been removed by the author.
Drago said...

Why do democraticals and LLR-lefties hate mothers of black children so much?

Gahrie said...

For most of Adams' presidency, the Secretary of State was Jefferson. However Jefferson resigned after the election,

This isn't true, and I don't know why I thought it was. Jefferson was the vice president at this time.

h said...

ACB mispronounced the word "poignant". Lock her up!

tcrosse said...

It suits the Democrats for Roe v Wade to be under imminent threat, as it supposedly has been since the 1970s and through several Republican administrations. If they were really serious about A Woman's Right To Choose
they'd go for a Constitutional Amendment, although it could go the way of the ERA.

Mike Petrik said...

I understand the hostility to judicial review, but do not agree.

Judicial review is a necessary implication of our constitutional architecture, and this is explicitly acknowledged in Federalist No. 78. If there is a constitutional defect it stems from the Framers’ belief that the judicial branch would be the "least powerful" of the three branches — also noted in Federalist No. 78 — and it is presumably for this reason that the constitutional checks against its misbehavior are so feeble, not so much in concept but as a practical matter.

The Framers’ simply did not foresee the size and scope of contemporary American government and the consequential degree of temptation of a politically-charged judicial activism. That said, politically-charged decisions from the federal bench are not new. Dred Scott is a classic example.

n.n said...

that it is not only religious people who have strong moral values but also atheists

Atheism is a faith. Atheists may be organized under different formal/organized religions or share common principles as do we all. Many atheists are Americans and Pro-Life, Liberty, and the pursuit of Happiness. Many are Pro-Choice. Religion is a philosophy of morality (i.e. behavioral protocol), including the relativistic (e.g. Pro-Choice) "ethics". Theism is simply a reference to a god philosopher, as opposed to the common "secular" religious philosophies and mortal gods and goddesses (e.g. "experts"). For example, diversity (and exclusion) dogma under the Pro-Choice religion favored by the Progressive Church, denies individual dignity, denies individual conscience, normalizes color blocs, color quotas, and affirmative discrimination, not limited to racism. And, of course, the quintessential example of diversity dogma or class-based/color judgment is selective-child/reproductive rites under the planned parenthood protocol and corporations including Planned Parenthood. Also, political congruence ("=") are sociopolitical constructs to prosecute selective exclusion, social justice, social progress, etc. It's not a coincidence that leftists (ostensibly "secular" with single/central/minority regime orientations) are notorious for prosecuting witch hunts, warlock judgments, and holding "protests".

Fernandinande said...

adopt children from Haiti.

A little research showed that it costs about $30,000 to legally adopt a kid in Haiti, but you can literally buy one for anywhere from $100 to $thousands since there are 200-300,000 slaves in Haiti, mostly children. The price difference might mostly involve fake paperwork.

whitney said...

50,000 people showed up in Washington today to pray for the nation. The Normies are highly motivated. Did it make the news anywhere?

Readering said...

Barrett will break the iron grip of Harvard and Yale law schools, but she adds to the iron grip of former USSC clerks. Fourth in a row plus Breyer and the Chief.

DanTheMan said...

>>I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.

Once I understand something, either on my own or with help, there's a guy I go to who tells me what to think about it.

Me.

iowan2 said...

That would probably be their best move unless their research has come up with racism somewhere in her New Orleans past.

Gee, ACB can't be as racist as the white supremacist she is replacing

robother said...

A living Constitution begets living statutes, when it's not emanating penumbrae. Legal Realism and Critical legal theory have given rise to more phantoms unseeable by ordinary human beings than Madame Blavatsky or Aleister Crowley combined.

bobby said...

Trying to take "legislative intent" into consideration outside of the words actually crafted into a law seems like saying "but the engineer WANTED that bridge to be strong enough to stand."

If you're not a good enough wordsmith to write a clear law that accomplishes what you want to accomplish, perhaps go be a plumber. But in the meantime, if the law was supposed to say something else, then subsequent legislatures or amendors ought to fix it.

Clyde said...

Having watched her statement, all I can say is that if the Senate Democrats treat her the way they did Justice Kavanaugh, the optics will be terrible for them among fair-minded voters. The worse they behave, the more likely a Trump landslide becomes.

The Godfather said...

Let's not lose sight of what's really going on. Under our Constitution what the Supreme Court is supposed to do (and what lower federal courts are also supposed to do) is interpret the law (including, of course, the Constitution). It would be hard to imagine someone more qualified to carry out that role than Judge Amy Coney Barrett. But the Left in this country wants/needs the Supreme Court to do more than that, to IMPOSE what the Left regards as right, just, and enlightened principles on a benighted country -- the right of abortion, above all else. I keep hoping that one day the Supreme Court will say, No, there's not a word in the Constitution the prohibits States from regulating or prohibiting abortion -- nor anything that requires them to prohibit abortion. What we see in the opposition to Barrett is the desperate fear of the advocates for abortion that they may actually have to sell their product, not just impose it.

wholelottasplainin' said...

Gahrie said...
Marbury vs Madison must be overturned.
************

Every Prog in America would love for that to happen, since it would make the Judicial branch legally and politically impotent.

You want a "Living Constitution"? Then you don't want a Constitution at all.

"Marbury V. Madison did not establish judicial review. It was simply the first case where that power was used. It was clearly spelled out in The Federalist #78 that this power would exist in the new constitution, and those who voted to ratify it understood, or should have understood, that it would exist.

All that Marbury V. Madison decided was that the Supreme court did not have original jurisdiction to issue Writs of Mandamus That could be overturned, or the constitution could be amended to grant such jurisdiction to SCOTUS. That would not have any major effects on the US judicial system as far as I can tell.

I suppose that the constitution could be amended so as to deny the power of judicial review to the courts. But I think the resulting system would be potentially unstable, and this would require a far more fundamental change than simply "overruling Marbury V. Madison"

As #78 of The Federalist said:

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (emphasis added)

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .

[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .

[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."

https://law.stackexchange.com/questions/43792/if-marbury-v-madison-was-overturned-would-this-eliminate-judicial-review-in-the

Earnest Prole said...

Funny coincidence: The statute is always trying to do exactly what I want it to do.

ga6 said...

Dick Durbin say he don't know if Ms Barrett is qualified. But he also don't know who shot Congressman Steve Scalise.

Mark said...

I presume the sincere and lovely Amy will have . . .

That's an awfully presumptuous and frankly sexist familiarity you have there in using her first name. Did you do that with Brett and Neil? Do you refer to Chief Justice John?

Wince said...

If a Democrat impugns a Haitian adoption in a crowded senate hearing room, does the press hear the "audible groans"?

Night said...

The way to cross her women support is to poll the men of the country and ask them if they would like to make ACB coffee in the morning. But that type of talk today will get you canceled from her friends list and also increase the the stock value of lumber yards as the demand for doghouses increases exponentially.

Narr said...

How does a statute mean?

Narr
DLAM-IANAL

Greg The Class Traitor said...

"Reading between the lines, I see a recommendation to the Democratic Senators that they adopt a temperament of calm and decorum — and not because civility is good but because incivility will bite them in the ass. I presume the sincere and lovely Amy will have her 7 children lined up right behind her."

I hope not. They shouldn't' have to hear what their mother is put through.

'Feldman makes it sound more sophisticated for a judge to supply what was left out of the text, but the Scalia position on that is that it's illegitimate for judges to enforce what they imagine the legislators were "actually trying to do."'

Esp since the words that were "left out" may have been "left out" because they couldn't get the votes with those words in.

Greg The Class Traitor said...

eric said...
If they don't attack her, they'll piss off the left for failing to destroy her and stop her from getting on the court.
They don't really have the power to stop this and the left doesn't understand that. So they'll blame the Dems for failure.


This is the past I love the most. The lunatics on the Left were raised on the West Wing and the rest of the Hollywood BS where the Left always wins. So any time the Left loses, it MUST be because the Democrats just failed to do the right things

Paul Zrimsek said...

But won't JFK just do whatever the Pope tells him to?

Kevin said...

Schumer is going down a long list of things which are in jeopardy if Barrett is confirmed.

Apparently the entire liberal agenda is unconstitutional or has no basis in properly-executed law.

rcocean said...

Look all this Judicial philosophy is often nonsense. I say "often" because Judges like Alioto, Thomas and Scalia are/were usually consistent in their philosophy even though they personally disagreed with the result.

However, you also have judges who believe stare decisis one case, and don't believe it in the next case. In one case, they are great believers in federalism, in the next, it doesn't matter. You have people like Goresuch, who I tag as being the next Blackmun, twisting the 1964 Civil Rights law to rule that "Sex" meant trans-sexuals and Gays. And worst of all, you have Roberts who flip-fops from one case to the next, and justifying his ruling with absurd logic and word games.

I hope, without much evidence, that this woman will believe in Bright Lines, and saying YES or NO and not MAYBE. Bu my suspicion is that she will be another Grandma O'Connor always trying to split the baby and "bring the court" together.

rcocean said...

That Feldman and many liberals like her is a bad sign. They also liked Roberts and Goresuch. Basically, if the liberals aren't screaming that the nominee is a right-wing extremist like Bork, thomas, or Alioto, its a bad pick.

Matthew Heintz said...

ACB HOT
RBG NOT

Francisco D said...

The Dems are going to demand that she recuse herself if the election goes to the SC.

M Jordan said...

Robert Barnes didn’t want her l. I respect his opinion but I think he’s a little too libertarian in his views. I’ll take Amy and hope she doesn’t become John Roberts.

tim in vermont said...

Her face is too perfect. It’s creepy. The trend seems to be that the most beautiful woman must be the most qualified.

Bay Area Guy said...

Not to pile on, but Breyer is 82, and Trump is slightly favored to win Nov. Could be his 4th pick for 7-2 Court..........

n.n said...

"To add to her merits, Barrett is a sincere, lovely person."
- Feldman

buwaya said...

"She's cute, but I wouldn't Bork her with Moscow Mitch's dick."

Conservative gals do it better. Thats science actually.

Michael K said...

Blogger Readering said...
Barrett will break the iron grip of Harvard and Yale law schools, but she adds to the iron grip of former USSC clerks. Fourth in a row plus Breyer and the Chief.


The clerks have a valid role to play, maybe the reason RBG had only one black, and I see no objection to them being a plus in choosing.

It is most gratifying to see the H-Y lock broken. First of all, I do not think those universities are what they once were, probably including the law schools.

I have two kids who passed the CA Bar first try, plus one, my FBI daughter also passed the WA state Bar first try.

Drago said...

ga6: "Dick Durbin say he don't know if Ms Barrett is qualified. But he also don't know who shot Congressman Steve Scalise."

Be very careful here. There is at least one intermittent poster at Althouse blog who worships Dick "US soldiers are gestapo" Durbin and routinely reacts quite violently to any criticism of dirtbag Durbin.

Just a heads up.

buwaya said...

I said from the beginning that Gorsuch was unsound, as he is Episcopalian.

Drago said...
This comment has been removed by the author.
n.n said...

the desperate fear of the advocates for abortion that they may actually have to sell their product

America is defined in her national charter as Pro-Life, Liberty, and the pursuit of Happiness. Her Constitution recognizes a right to self-defense, but not premeditated abortion for social justice, social progress, or any other sociopolitical construct. That changed with passage of the Twilight Amendment, which asserts that people have the right to define reality as they see fit, thus the witch hunts, warlock trials, and protests. Also, diversity dogma (i.e. color judgment) that denies individual dignity, denies individual conscience, normalizes color blocs, color quotas, and affirmative discrimination, not limited to racism and other kinds of class-based bigotry. America has grossly liberalized since establishment of the Progressive Church with Twilight faith and Pro-Choice, selective, opportunistic, relativistic quasi-religion ("ethics"), inclusive of nominally conventional sects of Jewish, Christian, Muslim, etc. identification, and ostensibly "secular", atheistic sects (e.g. Some, Select Black Lives Matter).

Sebastian said...

"That Feldman and many liberals like her is a bad sign."

Yes. She's very nice and loving, don't you know. She's likely to evolve. But she'll also be better than any viable alternatives.

Big Mike said...

It really was Amy Barrett. CNN got something right! Wow. Just wow.

Bay Area Guy said...

Dem Senator Elizabeth Warren on Judge Barrett's nomination:

"The name of Trump's illegitimate Supreme Court nominee in many ways doesn’t matter."

Sounds like Liz is trying to " otherize" Judge Barrett by minimizing her individual achievements.

However, calling the pick "illegitimate" is a lie. And the liar in question is not some low level Dem politician, but a string Senator who ran for President.

The Democrats LIE about matters small and large. This one is large. Liz Warren is a liar.



walter said...

Oh my..endorsed by that weasel from the impeachment trial.

rhhardin said...

I'm hearing she's god-like.

clint said...

From Senator Harris's tweet and Senator Hirono's press statement, it sounds like they've decided on a line of attack.

It's all about "destroying" the Affordable Care Act during Covid, which is why they will be forced to vote against this otherwise highly-qualified lovely woman.

Seems like a smart line to take. The hearings won't become a circus. They'll just make Barrett repeat over and over that she can't talk specifics on a case that's before the Court. And the Senators will pontificate about how important the House/Senate races are to protect Americans' access to affordable health care during a pandemic and a time of economic uncertainty.

Joe Smith said...

"Her face is too perfect. It’s creepy. The trend seems to be that the most beautiful woman must be the most qualified."

Some beautiful women are actually really smart...I've known many...it's Science!®

Btw, first in her class at ND is smart.

rhhardin said...

the desperate fear of the advocates for abortion that they may actually have to sell their product

That's not a problem. I can argue it myself.

Original Mike said...

This is now who we are supposed to hate.

walter said...

Apparently, it's not sufficient to simply replace vagina with vagina.
It's very progressive and elevated of us though to assume a like for like at some level. Because fairness. Would the left have been more approving of a pro-choice penis owner?

BleachBit-and-Hammers said...

Trump's America v Biden's America

Yep.

BleachBit-and-Hammers said...

Amy speaks...

“All people, of course– well, we hope, most people– have deeply held moral convictions, whether or not they come from faith. People who have no faith, people who are not religious, have deeply held moral convictions,” Barrett noted. “And it’s just as important for those people to be sure– I just spent time talking about the job of a judge being to set aside moral convictions, personal moral convictions, and personal preferences, and follow the law. That’s a challenge for those of faith and for those who have no faith.”

“So I think the public should be absolutely concerned about whether a nominee for judicial office will be willing and able to set aside personal preferences, be they moral, be they political, whatever convictions they are,” Barrett explained. “The public should be concerned about whether a nominee can set those aside in favor of following the law.”

“But that’s not a challenge just for religious people. I mean, that’s a challenge for everyone. And so I think it’s a dangerous road to go down to say that only religious people would not be able to separate out moral convictions from their duty,”
she said.

wildswan said...

Tossing a bouquet, it's on this blog by reading posts and comments that I became absolutely convinced that some atheists have foundational moral principles other than Darwinism which principles they are sincerely trying to apply to present day life. So it's no use trying to throw out the Catholics. Get rid of all the Catholics, install only convinced atheists - you can't be sure good atheist members of the black community (Ta-Nehisi Coates sons?) won't conclude at some future date that the unborn are human or that the Constitution was founded on principles universally applicable to all human beings so that the black community which found its historical tragedy in America instead of leaving behind it in Europe, Asia or Africa can transcend this difference. Its children did and do and will stand on the thin blue line with everyone else against both anarchy and America's enemies.

Gabriel said...

@wholelottasplainin':It was clearly spelled out in The Federalist #78 that this power would exist in the new constitution, and those who voted to ratify it understood, or should have understood, that it would exist.

The Federalist is an exposition by only a handful of the delegates to the Constitutional Convention, and they did not get their way in every issue. What they characterize as the workings of the Constitution may have been their perspective.

I'd say this is not definitive that judicial review belonged to the Supreme Court from the beginning. It's easy to over-rely on the Federalist because we are far removed from that controversy and we're not as familiar with possible counter-arguments and other perspectives as the contemporary audience for the Federalist was.

For all you knew most of their readers rolled their eyes like we do here at the WaPo and the Times.

n.n said...

the Constitution was founded on principles universally applicable to all human beings

The national charter is Pro-Life, Liberty, and the pursuit of Happiness. The Constitution does not indulge diversity (i.e. color judgments), not racism, not sexism, nor other class-based bigotry that denies individual dignity, denies individual conscience, normalizes color blocs, color quotas, and affirmative discrimination, which is the legacy of a Progressive Era that exercises liberal license in service to their Church, faith, religion, and principals (e.g. 1%) foreign and domestic. It does not contain a Twilight Amendment that sanctions denial of life deemed unworthy of life (i.e. wicked solution) for social progress, medical progress, or any other ostensibly "secular" purpose.

n.n said...

the desperate fear of the advocates for abortion that they may actually have to sell their product

One-child and selective-child have been rationalized by diverse philosophers, regimes, cults, corporations, and personal-interest advocates for a long time. It's the oldest quasi-religiously defended, normalized class of premeditated homicide.

Unknown said...

"Can you set aside your personal values to uphold the law in its entirety as written."

Your oath of office is to the Constitution, not to what people have said about the Constitution. To my mind, the dangerous thing about the Supreme Court is that they can go into a room, and five Ivy Leaguers can make up whatever insane shit they want to say, and all the rest of us are supposed to respect their work.

Nowhere in the Constitution does it say that the Supreme Court is the final word. The shit-show that has been the Supreme Court confirmation process over the last several decades suggests as much. If the Supreme Court doesn't like all this talk about packing the court and term limits and wild character assassination...

It might reflect seriously about their lack of regard for the word "person" in their abortion rights jurisprudence. They might honestly think about doctors being murdered--in a John Brown type move--and multiple abortion doctors sitting in prison for murdering babies and other crimes. Do you really think you've settled this particular case or controversy? My not-so-humble opinion is that you've made it far, far worse.

To fix it you need to regard babies as people, accept that they have a right to life, and apply our homicide laws and death statues to the abortion controversy. You can and should help us resolve this ugly fight. But to do so you're going to have to make a sacrifice to your prestige and power by admitting that you have erred and made grave mistakes.

Greg The Class Traitor said...

Kevin said...
Schumer is going down a long list of things which are in jeopardy if Barrett is confirmed.
Apparently the entire liberal agenda is unconstitutional or has no basis in properly-executed law.


Yep. It's nice to know that they DO understand what a bunch of criminal thugs they are

Greg The Class Traitor said...

Sebastian said...
"That Feldman and many liberals like her is a bad sign."
Yes. She's very nice and loving, don't you know. She's likely to evolve. But she'll also be better than any viable alternatives.


Nope. That's why I'm eager to have a devout believer in God on the Court.

She knows what the job is supposed to be, she's swearing an oath to her God that she will do that job, and she values the good opinion of that God more than she values the good opinion of the NYT.

I expect her to be good, for decades

wholelottasplainin' said...

Gabriel said...

I'd say this is not definitive that judicial review belonged to the Supreme Court from the beginning. It's easy to over-rely on the Federalist because we are far removed from that controversy and we're not as familiar with possible counter-arguments and other perspectives as the contemporary audience for the Federalist was.
************

Yeah, there's been absolutely no legal scholarship on this topic since the case was decided. None. we're all in the dark as to what the Framers meant, and how all three branches have handled that decision.

SNORT
******************

"For all you knew most of their readers rolled their eyes like we do here at the WaPo and the Times."
*************

Actually, for I all know, it's been stare decisis since Marshall made his ruling.

You can try to tell us that it "could" be overturned, but 200-odd years of precedent---especially when progs are trying to destroy the Constitution---will be hard to overcome.

In any event the original claim that Congress and the POTUS could overturn any SCOTUS decision is simply not true. Where, for example would they turn for the constitutional basis for ignoring the third branch of government?

Unknown said...

> it's illegitimate for judges to enforce what they imagine the legislators were "actually trying to do."

REALITY

Judges enforcing what THEY WANTED legislators to do

like gay marriage

Unknown said...

I said from the beginning that Gorsuch was unsound, as he is Episcopalian.

All the best pro-lifers are Episcopalians!

I'm convinced Scalia put his religious beliefs in a little box. And he had no real thought in regard to the word "person" in our Constitution.

I think Scalia, like most Catholics, believed strongly that life begins at conception. So he had a strong feeling that abortion kills a baby.

What was strange, to me, is how he kept his strong feelings out of his jurisprudence entirely. He could say, with utter certainty, that abortion is not required under our Constitution. (Because it's not).

But the argument that an unborn baby is a human being, a person with a right to life, is an idea that he would only suggest as a hypothetical. He never argued that an unborn baby is a person. He only said the baby might be one.

He never applied the equal protection clause to the abortion issue, never talked about our death statues.

Consider for a second how bad a point "conception" is as a legal matter. We don't know when conception happens. Only God knows. (The chemical tests that inform us when a woman is pregnant can only do so after the zygote has attached to the walls of mom's uterus and she starts producing the pregnancy hormone). You can't charge a doctor with "murder" for killing a zygote when you can't even prove that a zygote existed. You could very well be prosecuting innocent people who were just using emergency birth control.

I love emergency birth control. It's not a homicide, and it solves the problem of rape victims. We can answer the rape issue by saying, "you don't need abortion, use emergency birth control." We need not deal with an atrocity by legalizing more atrocities. Emergency birth control isn't an atrocity, and in many cases it's a godsend.

I am convinced that every abortion is bad. Even early abortions that would not qualify as a homicide, are bad.

Consider this hypothetical. Your mother is in the hospital. She has lost all brain activity. But the doctors tell you that it is highly likely that she will be healthy and well in 9 months.

Wouldn't it be awful for the Supreme Court to give the child in the above scenario the "right to choose" whether to decapitate mom or not during that 9 month period?

Even if it's not a homicide at this point in time, getting rid of a human being is an awful thing to do. This is why I'm convinced that we can outlaw abortion throughout the pregnancy, without regard to the life-or-death issue.

But of course the life-or-death issue is also profoundly important. Many abortions constitute homicides and in the future they should be prosecuted as such.

The Constitution doesn't say when life begins, or when people die. But it does say that all people are entitled to the equal protection of the laws. That means our death statutes--and our homicide laws--should protect unborn children.

I don't know if it's my Episcopal beliefs that led me to think about our death statutes, which is a worldly and secular answer to the abortion question. But I do think that "life begins at conception" is not helpful in a criminal murder trial. In a murder trial, you got to prove that somebody died.

Does abortion kill a baby? How would we prove that a doctor killed an unborn child? You would have to prove that the baby was alive, and the doctor caused the baby to die. And you would need intent, too.

When your state defines the death of human beings, people can easily deduce what biological criterion we need to be alive. Legally, the question is really easy--brain activity is the critical biological point for human life in all 50 states. It's unanimous.

What makes abortion so traumatic is not the degree of difficulty in finding the life-or-death answer as a matter of law. It's the emotional implications of what that answer tells us.

DeepRunner said...

In an effort to look like a good guy, Noah Feldman magnanimously spewed...
"Regardless of what you or I may think of the circumstances of this nomination, [Amy Coney] Barrett is highly qualified to serve on the Supreme Court."

Eh, he may be trying to encourage cordiality. But I have written up letters of recommendation and performance appraisals. Yeah, he said a lot of nothing.

Clyde said...

Matthew Heintz said...
ACB HOT
RBG NOT


This is not really a fair comparison, as we now remember how Justice Ginsburg looked in recent years, but when she was young, she was an attractive woman. I saw a slideshow of pictures of her from childhood to old age, and she was pretty in her 20s. Judge Barrett looks very good for her age, although you can tell that she is in her 40s and not her 20s.

Tina Trent said...

How adorable it is to be able to tweet and twitter about what statutes are supposed to do or want to do when those forced firmly under their thumb can tell you precisely what they do and want -- something no lawprof nor career justice nor legislator will ever experience.

Obamacare tripled our premiums while denying me access to my doctor of 25 years, and for the past four years of this tax, the doctors to whom we are annually randomly assigned as gatekeepers aren't taking new patients, so I spend weeks on the phone seeking two new GPs within 50 miles who will take us so we can merely sign up for frivolities like mamograms and checks on my husband's melanoma. Meanwhile, every acquaintance in academia, government, nonprofit or any corporation pays a fraction of what we pay with provider continuity and negligible deductibles, ditto the indigent and artsy types we know. Plus we still bleed medicare, medicaid and social security, largely vacuumed up by middle-class elderly who take far more than they ever put in, plus illegals and dirtbags who put in nothing.

The intent of Obamacare was to destroy small businessmen. Funny how the natterers, braintrusts and punditry everywhere didn't notice. Honestly, I don't care what this woman thinks about anything. Necessity is the sole midwife of clear thinking, and precious few in any position of authority or dependency or collusion with any public or private teat has ever reared their milk-stained lips up for long enough to catch the merest bracing whiff of it. Carry on.

h said...

Elizabeth Warren's plan of attack: "Reject ACB because her parents weren't married at the time of her birth." (""The name of Trump's illegitimate Supreme Court nominee...."

Gabriel said...

@wholelottasplainin':Yeah, there's been absolutely no legal scholarship on this topic since the case was decided. None. we're all in the dark as to what the Framers meant, and how all three branches have handled that decision.

Straw man. Go argue with someone who's saying that. It's not what I'm saying. I'm saying citing the Federalist isn't sufficient to settle it. Any textbook will tell you it started with Marbury vs Madison. Okay, there's wrong things in textbooks. But what you cited wasn't sufficient to establish that, that's all.

You can try to tell us that it "could" be overturned,

I didn't say any such thing. I said only that the Federalist doesn't settle it, that the power was in there before Marbury vs Madison.

In any event the original claim that Congress and the POTUS could overturn any SCOTUS decision is simply not true.

I agree with you here, they'd have to amend the Constitution. However, there is a power Congress has never made us of that could constrain future decisions:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

As for your final question, "Where, for example would they turn for the constitutional basis for ignoring the third branch of government?" I'm more worried that there won't be one, that the Supreme Court by becoming too political will one day be neutered by packing schemes or just ignored. The Constitution doesn't execute itself, as President Jackson is supposed to have noted: "John Marshall has made his decision, now let him enforce it."